This piece originally appeared on Just Security.
The recent Justice Department indictment of Julian Assange for violating the Espionage Act has appropriately triggered widespread opposition from those who treasure a free press. This latest government overreach through the invocation of the World War I-era law is not the first of its kind in recent history: It began during the George W. Bush administration and continued in the Obama administration, when the Justice Department prosecuted whistleblowers who made disclosures to the press about government wrongdoing. The Project On Government Oversight (POGO) has expressed concerns about using the anti-spying law to go after whistleblowers. Previously, we thought our biggest challenge was to amend the Espionage Act to include a public interest balancing test that would require the Justice Department to consider the benefits to the public created by the disclosure of government wrongdoing when deciding whether to prosecute a leaker of classified information. Now, the Assange case opens the door for the Justice Department to go after anyone who receives or publishes information the government claims is related to national defense, even if the information is unclassified.
“Neither the Espionage Act nor the classification system were meant to be used to hide serious government wrongdoing. But they can be applied that way, and they certainly have been.”
The prosecution of Assange is a shift in Justice Department practices. Prior to Assange, the most recent Espionage Act case involved Reality Winner, a government contractor, who removed and transmitted to The Intercept classified National Security Agency documents detailing Russian hacking during the 2016 election. Winner pleaded guilty and received a 63-month sentence.
The Winner case and the recent charges against drone whistleblower Daniel Hale are a continuation of the traditional, however overreaching, efforts to apply the Espionage Act against whistleblowers. However, in both cases, the government did not prosecute the media outlet or its individual reporters, which raises questions about the Justice Department’s shift in policy to prosecute Assange and potentially anyone moving forward who receives or exposes government information.
Before we get too far down a path where prosecutions that jeopardize constitutional freedoms are allowed, Congress should clarify the reach of the Espionage Act, and should shield from that reach anyone who exposes information that shows illegal or embarrassing government actions.
Assange has been charged under the Espionage Act with 17 counts of conspiring to receive, obtain, and disclose classified national defense information. He has also been charged, under a separate laws, with conspiring to hack a government computer. The charges stem from Assange’s requests to obtain information about U.S. military and intelligence databases and documents related to Iraq, Afghanistan and the Guantanamo Bay detention center in Cuba, and from receiving and publishing information from Private First Class Chelsea (formerly Bradley) Manning.
The original context of the Espionage Act was to prohibit the unauthorized release of classified information to foreign entities. Specifically, the law was passed to prohibit spying for Germany and other adversaries during World War I.
Many people likely think that the law is the law, providing a black and white set of unchanging rules. But in reality, all laws are subject to interpretation by those enforcing them and by the courts. Whether government information is classified is similarly open to interpretation—and to abuse. Neither the Espionage Act nor the classification system were meant to be used to hide serious government wrongdoing. But they can be applied that way, and they certainly have been. That’s what we need to guard against, and the ability to expose government wrongdoing is what is at stake now.
“Prosecuting anyone as a spy for exposing what has been deemed national defense information has a far-reaching and chilling effect, not only on the press, but also on the public at large.”
The Justice Department’s case against Assange is predicated on an ambiguity in the Espionage Act that focuses on “national defense” information, which could include those who receive or publish classified or unclassified. Previous prosecutions under the anti-spying law have focused on the person leaking the information, and some of those cases involved legitimate whistleblowers in addition to prosecutions of people spying for foreign governments.
Assange’s case is only the third time the government has brought Espionage Act charges against someone not affiliated with the U.S. government. The other notable case involving this law was ultimately dropped: A decade ago, the government brought espionage charges against two lobbyists who received and disclosed classified information to the media and foreign entities. The government dropped the casebecause it would have been too difficult to win—likely because the defendants were challenging whether the information they disclosed was appropriately classified and proving their intent was a major obstacle.
“National defense” information is anything closely held by the government that can be potentially damaging to the United States or useful to an enemy, as recognized by one federal court. According to the Supreme Court, the phrase “national defense” is “a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.” But this label is subject to government abuse to hide anything it doesn’t want you to know—including unclassified information that might conceal illegal or embarrassing activities or operations.
While the evidence the Justice Department is using to make its case against Assange was classified, the vague definition of “national defense” information could mean that publishing unclassified information also violates the Espionage Act. The result: prosecuting anyone as a spy for exposing what has been deemed “national defense” information has a far-reaching and chilling effect, not only on the press, but also on the public at large.
The Espionage Act’s Ambiguity is Longstanding
The discussion about the problems posed by the Espionage Act has been going on for nearly 50 years. Harold Edgar and Benno Schmidt, Jr. had warned about serious problems posed by the law in a 1973 Columbia Law Review article titled “The Espionage Statutes and Publication of Defense Information.” Edgar and Schmidt acknowledged that it’s a difficult balancing act “to protect military secrets from spies without promulgating broad prohibitions that would jeopardize the legitimate efforts of citizens to seek information and express views concerning national security.” Still, they wrote, “the espionage statutes are a loaded gun pointed at newspapers and reporters who publish foreign policy and defense secrets.” More importantly, the authors pointed out, “the overriding question of interpretation is whether newspapers, their reporters, their informants, or anyone who investigates, accumulates, informs about, or retains defense information as a prelude to public speech is covered by the section.”
Constitutional expert Stephen Vladeck testified before Congress in 2010 that the Act does not focus solely on the whistleblower; rather, it
applies in its terms to anyone who knowingly disseminates, distributes, or even retains national defense information without immediately returning the material to the government officer authorized to possess it. In other words, the text of the Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense information that by that point is already in the public domain.
Such open prosecutorial authority, now, after the Assange indictment, could chill any publication of and public debate about a substantial amount of national security-related matters. Essentially, Uncle Sam is saying, “You can trust us. We’re the government.”
The Justice Department’s recent application of the Espionage Act to Assange for receiving and publishing or distributing information opens the floodgates to go after anyone as Edgar and Schmidt warned nearly half a century ago. It criminalizes the actions of anyone—including journalists, non-profit watchdogs like POGO, or even congressional investigators—who receives or exposes information that has been labeled with the vague and rarely, if ever, used phrase “national defense.”
There has always been a tension between the executive branch and other institutions—both within government and in civil society—that work to expose government abuses and wrongdoing. It is well-known that the government over-classifies information, concealing information from the public that is embarrassing rather than detrimental to our national security.
The government has a longstanding practice of threatening would-be truth tellers with criminal prosecution under various laws in an attempt to silence them. In many cases, however, the government has had to back down because attempts to bully the whistleblowers had no grounding in law. But if successful this time, a Justice Department with an itchy prosecutorial finger can go after anyone releasing information that exposes government wrongdoing to the public, classified or not.
What an Assange Precedent Would Mean: A Historical Perspective
Had the precedent of the Justice Department’s prosecution of Assange existed in the past, there are numerous cases that could have resulted in a prosecution under the Espionage Act.
Back in 1995, Helen Frost wanted to get to the bottom of why her husband Robert died after suffering from a series of mysterious ailments. They had found toxic chemical compounds in Robert, who had worked for years at the then-super-secret Air Force base Area 51, and Helen was convinced his employment at Area 51 had contributed to Robert’s death. After a few unsuccessful lawsuits, Helen reached out to us to see if we could help get to the bottom of what happened—we did.
We discovered that Area 51 contractor Lockheed Martin had been using the remoteness of the site to truck in toxic materials from its Burbank, California, facility where state law prohibited them from disposing of the toxic waste. That waste, and all other waste from Area 51, was burned in open air pits. Everything, even the name of the facility, was alleged to be classified, and the Air Force used the cloak of “national security” to shield what would otherwise be a highly illegal action. Frost and others at Area 51 worked around those burn pits and were exposed to hazardous smoke that might have contributed to their medical conditions.
As we worked to help Helen find the truth about the cause of her husband’s death, and that of many of Robert’s colleagues, the Air Force suddenly swooped in and retroactively classified unclassified evidence we had collected from sources, including an unclassified Area 51 security manual. The Air Force required POGO to house all of the documents we had gathered for this investigation and any other references to Area 51 in Helen’s attorney’s office. The government even tried to claim a right to look through all of POGO’s files to ensure compliance.
In an alleged attempt to protect national security, the Air Force invoked the state secrets privilege, and the environmental case brought by Helen and others to prove the illegal burning of hazardous waste at Area 51 was dismissed. Still, the government had been forced to admit the base existed and subject it to environmental inspections.
If the current Justice Department theory it’s using for Assange was applied back then, would Helen, our sources, or our staff have been prosecuted and imprisoned for espionage because we had received “national defense” information with the intent to publish?
Several years after our work exposing environmental crimes at Area 51, we were again faced with a scenario that might have ended differently had the Justice Department’s current standards been in place. Security guards at the Indian Point Nuclear Power Plant in New York came to us to blow the whistle on the utility’s effort to cheat on a post-9/11 security test. The guards were all given advance warning of the test and even the parameters of what would be tested, sufficiently dumbing it down so that VIP observers would come away with a false sense of security—and leaving Westchester County, N.Y., residents in harm’s way.
The Nuclear Regulatory Commission attempted to shut down our effort to bring this information to light by threatening us with criminal prosecution on the grounds that our letter to the head of the agency contained “safeguards” information, a pseudo-classification, even though the event had already taken place. Eventually, the agency finally admitted we did not include any classified information in our letter, and we republished it. Under the Justice Department’s current standard, would we, trying to improve the security and safety of the American people, be prosecuted for spying and our staff imprisoned? Would the government’s abuses and neglect go unchecked because we feared receiving and publishing what the government could deem information relating to the “national defense,” despite the information being unclassified?
Could Justice’s Shift Reduce Congressional Oversight?
Perhaps even more alarming than what might happen to a nonprofit watchdog is what might happen to congressional investigators. We have a couple of clues from past experiences that paint a picture that should raise concern.
In 2004, we sued then-Attorney General John Ashcroft and the Justice Department over its retroactive classification of information that alleged corruption, incompetence and cover-ups in an FBI translation unit, asserting that the retroactive classification was unlawful and unconstitutional. The information had been presented by the FBI during two unclassified briefings held by the Senate Judiciary Committee, and was referenced in letters from Sens. Patrick Leahy (D-Vt.) and Chuck Grassley (R-Iowa) to Justice Department officials. The letters were posted on the senators’ websites, but were removed after the Justice Department retroactively classified the information and instructed the congressional offices to take it down. We already had the letters and wanted to post them on our own website so the public could be informed of the wrongdoing.
Throughout the lawsuit against Ashcroft, we inquired about whether POGO could discuss and disseminate the senators’ letters without fear of prosecution. The Justice Department declined to say it wouldn’t prosecute. As our case reached a critical court date, the Justice Department finally admitted the information it had retroactively classified could be released to the public. But by then the two senators had removed the information from their websites, and their staff were successfully dissuaded from pursuing their investigation into the matter.
“Perhaps even more alarming than what might happen to a nonprofit watchdog is what might happen to congressional investigators.”
The Justice Department’s retroactive classification of embarrassing information was one way to shut down congressional oversight. More than a decade later, the CIA took an even more direct and threatening action to silence Congress.
In 2014, the CIA referred the authors of the Senate torture report for prosecution under the Computer Fraud and Abuse Act based on a false claim that they had hacked into an agency computer network to gain unauthorized access to classified documents. The CIA Office of Inspector General later found that there was no computer intrusion. In fact, the agency itself had inadvertently provided access to the documents in question. Fortunately, the Justice Department declined prosecution, but with the Espionage Act being used against those who receive so-called national defense-related information and a president who is now calling to “investigate the investigators,” there is a real danger of future attempts to chill oversight and exposure of government wrongdoing.
Assange may be an easy target for prosecution. But anyone who values our democratic system of free speech, open government and loyal dissent should look at this latest shift by the Justice Department with genuine fear and feel emboldened to push back. The Justice Department’s attempt to apply the Espionage Act against those who receive or publish government information is nothing more than an attempt to exploit uncertainty in the law and defy the Constitutional protections afforded by the First Amendment. We will see what happens in the Assange case, but Congress must amend the Espionage Act to clarify and narrow the definition of “national defense” information to prevent prosecutions that undermine our constitutional and democratic systems.
It has become cliché to quote German pastor Martin Niemöller’s post-war poem, “First they came for the socialists, and I did not speak out….” But if we as citizens, including Congress, do not stand up for journalists (both old and new media), whistleblowers, and any other individual or entity that exposes government crimes or mistakes, I fear there won’t be anyone left to speak up against the increasingly voracious efforts to silence criticism.