By CHLOE WALLACE
The Espionage Act of 1917 intended to put limits on the First Amendment during wartime in order to mitigate fears of potential traitorous American soldiers and spies.[i] Although this was a wartime measure, several provisions of it are still active. Section 793 of the Act, in recent years, has been used as a tool to charge whistleblowers, which the Government Accountability Office defines as employees who disclose information that they reasonably believe is “evidence of illegality, gross waste or fraud, mismanagement, abuse of power, general wrongdoing, or a substantial and specific danger to public health and safety.” This law is used to primarily charge those in the intelligence and national security community, as it broadly provides that anyone with access to data that the government deems to be harmful to the nation (i.e., can be used against the U.S. by enemies) that communicates, or attempts to communicate, the information shall be fined or imprisoned.
Public opinion has shifted in favor of whistleblowers that alert the public of government wrongdoing, but the century-old law still functions as a means to protect the government by shielding the public from information that might reveal wrongdoing.[ii] The law should change to protect whistleblowers because at present this act poses a threat to government transparency. It allows the government to prosecute leakers and whistleblowers “that it dislikes, while leaving untouched the many leakers within the security state who release classified materials to advance those agencies’ bureaucratic aims.”[iii] Further, it does not allow the leaker to have a public interest defense in court, despite most coming forward out of a sense of “public duty.”[iv]
The Espionage Act of 1917 has evolved from being a means to “punish acts of interference with the foreign relations” into a tool of government suppression that punishes whistleblowers and precludes potential whistleblowers from releasing evidence of wrongdoing to the public.[v] Currently, seeking an outside channel for sharing information leaves a whistleblower vulnerable to charges under this Act. Punishing whistleblowers for exposing wrongdoing contradicts the philosophical understanding of punishment because by definition, a whistleblower does the morally “right” thing by exposing crimes or illegality, with no intent to harm, yet still faces the consequences a traitor, with intent to harm, would. This creates an unfair ethical dilemma for potential whistleblowers: should one overlook wrongdoing to protect themselves from punishment, or should they do the right thing and expose the government’s criminal activities but pay the price of punishment? The law should become more sympathetic to the critical role whistleblowers play by informing the public of government wrongdoing, rather than assuming whistleblowers are automatically criminals worthy of punishment.
While the Espionage Act needs amending, this is not to say that such an amendment should free all leakers from punishment. There are some acts of leaking, or whistleblowing, that do not expose federal wrongdoing. Therefore, they are deserving of punishment. In cases where there is intent to harm the nation, or a revelation puts lives at risk – such as revealing the location of CIA assets or troop movements overseas – there is no public interest component that can mitigate possible punishment to the whistleblower. In sum, under current law anyone with information, regardless of whether or not it is communicated, can hypothetically be charged because the government decides whether or not the information possessed is harmful.[vi] Since the decision of what is “harmful” rests solely with the government, the government could theoretically use the Espionage Act to crack down on beneficial whistleblowers, which would threaten government transparency. While some information may actually be harmful if leaked to the press, and thus worthy of punishment, the government may prosecute people for revealing information that is merely embarrassing for them. This selective enforcement of the law must change to protect the government’s critics and so that civic-minded leakers are not punished more than actual wrongdoers.
Over the past two administrations, 13 people have been charged under the Espionage Act. Eight of these cases occurred during the Obama Administration. None involved double agents or wartime security concerns, but instead leaking secure documents. Examples of these document leaks ranged from highly classified military intelligence to embarrassing candid diplomatic messages.[vii] At present, the Trump Administration is on track to break Obama’s record use of the Act.[viii] As the use of this law is on the rise again, this law should be amended to enhance safeguards for the individuals willing to hold our government accountable by exposing wrongdoing in the intelligence and national security community. However, it is crucial that a balance must be found to ensure national security and maximum government transparency under the law. The Act should distinguish between whistleblowers acting out of public interest by exposing wrongdoing and a spy selling classified information to an enemy state. On the Hill, Senator Ron Wyden (D-OR) has proposed provisions to harmonize the whistleblower reporting procedures for intelligence community members, but they have yet to be implemented.[ix] Other legislative efforts to protect intelligence whistleblowers have faced strong headwinds because “working with sensitive U.S. intelligence or national-security information means working within a system with little outside accountability and transparency.”[x]
In sum, those that leak information from the intelligence community should have protections under the law as they risk their careers because they have found troubling information that they believe must be brought to light. Currently, the intelligence community has separate rules and little protection for whistleblowers unlike the corporate or federal sphere in part because of the Espionage Act. Without intelligence whistleblowers, we would not know about shortcomings of the drone program, the nation’s use of torture, NSA surveillance, and Russian election tampering; the national conversation would not have shifted on these topics and the government would not be challenged.[xi] The public has a right to know when the government falters, and ideally, the law should not punish these people for doing the right thing of exposing wrongdoing.
[i] David Asp, Espionage Act of 1917, The First Amendment Encyclopedia, (2019).
[ii] Tom Mueller, Whistleblowers say aloud what many of us think in silence. It’s a relief. The Washington Post (2019).
[iii] Jay Stanley, Reality Winner Is Latest to Face Prosecution Under Awful World War I Espionage Act, ACLU (2019). https://www.aclu.org/blog/national-security/secrecy/reality-winner-latest-face-prosecution-under-awful-world-war-i?redirect=blog/free-future/reality-winner-latest-face-prosecution-under-awful-world-war-i-espionage-act
[iv] David Colapinto, co-founder and general counsel of the National Whistleblower Center. https://www.cnn.com/2019/09/27/politics/whisteblowing-explainer-trnd/index.html
[v] Stephen Vladeck, The Espionage Act and National Security Whistleblowing After Garcetti, American University Washington College of Law, (2008).
[vi] 18 U.S.C 793 “Gathering, transmitting, or losing defense information,” Legal Information Institute Cornell Law School.
[vii] Brittany Gibson, All the President’s Whistleblowers, The American Prospect (2019).
[viii] Peter Sterne, Obama Used the Espionage Act to Put a Record Number of Reporters’ Sources in Jail, and Trump Could Be Even Worse, Freedom of the Press, (2017).
[ix] Rob Wyden, Wyden Secures Key Provisions in 2018, 2019 and 2020 Intelligence Authorization Acts (press release) (2019).
[x] Brittany Gibson, All the President’s Whistleblowers, The American Prospect (2019).
[xi] Brittany Gibson, All the President’s Whistleblowers, The American Prospect (2019).