The Espionage Act and a Growing Threat to Press Freedom

The Justice Department’s recent indictment of Julian Assange, the founder of WikiLeaks, has alarmed press-freedom advocates, with even some of Assange’s fiercest critics warning that the government has crossed a perilous new frontier by using the Espionage Act to target a publisher. Another recent Espionage Act indictment has generated less controversy, presumably because its target is not a publisher but a government insider. Daniel Everette Hale, a former Air Force intelligence analyst, is alleged to have supplied classified documents to “an online news outlet”—apparently the Intercept, known for its aggressive reporting about war.

Hale provided intelligence support for U.S. drone strikes while he was deployed in Afghanistan, during the Obama Administration. Some of the documents he allegedly disclosed concerned strikes in Afghanistan and the Horn of Africa. The Intercept published the documents in the fall of 2015, at a time when U.S. drone strikes were especially controversial and Administration officials were contending that the strikes were lawful, necessary, and surgically precise. Hale believed that the strikes were counterproductive and immoral, and that Americans had a right to know how the military was deciding whom to kill.

The Espionage Act is more than a century old, and its use as a tool for the suppression of speech crucial to the democratic process is not at all new. During the First World War, some two thousand people were prosecuted under the act for their opposition to the draft and the war, many of them for political speech that we would recognize today as fully protected by the First Amendment. In the nineteen-seventies, the government charged Daniel Ellsberg under the act for supplying the Pentagon Papers, a classified study of U.S. involvement in Vietnam, to the Washington Post and the New York Times. The government was forced to abandon the prosecution after it came to light that the F.B.I. had unlawfully tapped Ellsberg’s phone and that agents of the White House had broken into the office of his psychiatrist.

Throughout the twentieth century, though, only one person was convicted under the Espionage Act for supplying information to the press. Samuel Loring Morison, a Navy intelligence analyst, was charged in 1984 with providing classified photographs to Jane’s Defence Weekly. The photos showed a next-generation Soviet aircraft carrier being assembled at a construction yard. Morison was convicted, but President Bill Clinton pardoned him, in 2001.

Senator Daniel Patrick Moynihan, who wrote powerfully of the corrosive effect of official secrecy, was among many who advocated for Morison’s pardon. He argued that Morison had been convicted for “an activity which has become a routine aspect of government life: leaking information to the press in order to bring pressure to bear on a policy question.” Moynihan’s observation provided a complement to an argument that Max Frankel, the Times’ Washington bureau chief, had made in the Pentagon Papers case. If the press did not publish government secrets, Frankel wrote, “there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington, and there could be no mature system of communication between the Government and the people.”

The George W. Bush Administration pursued several government insiders for leaking classified information, but it was the Obama Administration that normalized the use of the Espionage Act against journalists’ sources. Among its targets were Jeffrey Sterling, a former C.I.A. officer, who was sentenced to three and a half years for supplying the Times with classified information about U.S. efforts to disrupt Iran’s nuclear program; Donald Sachtleben, a former F.B.I. agent who was sentenced to three and a half years for providing the Associated Press with information about a foiled terrorist plot in Yemen; and Chelsea Manning, a former military-intelligence analyst who was sentenced to thirty-five years for providing Assange’s WikiLeaks with hundreds of thousands of pages of classified government documents. President Barack Obama commuted Manning’s sentence, in 2017—but only after she had served about seven years in prison. All told, the Obama Administration prosecuted eight people under the Espionage Act for leaking sensitive information to the media, more than all previous Administrations combined.

The Trump Administration is building on this foundation. Early in 2017, President Trump complained to his F.B.I. director, James Comey, that sensitive information relating to his calls with foreign leaders had found its way into the media. Comey agreed to speak with the Attorney General, Jeff Sessions, about pursuing leakers more aggressively, and said that he himself “was eager to find leakers and would like to nail one to the door as a message.” Later that year, Sessions told Congress that the Justice Department was engaged in twenty-seven investigations into classified leaks—a dramatic escalation over previous years. In the two and a half years since Trump complained to Comey, the Justice Department has indicted three people under the Espionage Act for providing information of public concern to the press. One of them, Reality Leigh Winner, was indicted for allegedly disclosing information concerning Russia’s efforts to interfere in the 2016 elections. Another, Terry Albury, the only African-American F.B.I. field agent in Minnesota, was charged with revealing information about the F.B.I.’s surveillance and infiltration of the Somali-American community. Hale was the third.

On one level, the logic of these indictments is easy to understand. The government needs to be able to protect its secrets, and it couldn’t if every employee and contractor felt empowered to decide which secrets should be disclosed. The problem with its increasing reliance on the Espionage Act to sanction insiders who reveal secrets to the press is that the act collapses all of the distinctions that should matter in those cases. It draws no distinction between insiders who share information with foreign intelligence services and those who share it with the media, or between those who intend to harm the United States and those who intend to inform the public about the abuse of government power. The act doesn’t admit of the possibility of secrets that are illegitimate, or widely known, or no longer sensitive, instead treating all disclosures of “information relating to the national defense” as subject, at least in theory, to the harshest penalties. The act is blind to the possibility that the public’s interest in learning of government incompetence, corruption, or criminality might outweigh the government’s interest in protecting a given secret. It is blind to the difference between whistle-blowers and spies. The government’s now-routine use of the Espionage Act against journalists’ sources suggests that it, too, has lost sight of these distinctions.

It is surely true that unauthorized disclosures to the press have sometimes caused harm. It is also true, however, as Frankel intimated in the Pentagon Papers case, and Moynihan in the Morison case, that without whistle-blowers the concept of accountable government would be a charade. Consider just the past twenty years. The abuses at Abu Ghraib and Guantánamo, the torture of prisoners in C.I.A. black sites, the warrantless wiretapping of Americans’ phone calls, the scandalous dysfunction of the government’s watch lists, even the extent of foreign interference in the 2016 election—we would know far less, or nothing at all, about these topics if we had been dependent on the government’s official disclosures, which were often partial, selective, or simply false.

Hale’s case is illustrative. When Hale approached the Intercept, the military and the C.I.A. were carrying out drone strikes in multiple countries, including Afghanistan, Pakistan, Somalia, Yemen, and Libya. According to human-rights researchers and journalists who had documented strikes and interviewed survivors, the strikes had killed several thousand people, many of them noncombatants, and some of them children. In public statements, though, government officials contested these accounts, even denying that there had been any civilian casualties at all. The documents supplied by Hale allowed the Intercept to report—with evidence—that many of the people killed in drone strikes were not targets, that many of the targets were not terrorists, that many of the strikes were predicated on evidence that was thin and unreliable, and that, as to the body counts, the government was assuming, without any basis, that bystanders were “enemies killed in action.” Little of this would have been surprising to Afghans, Yemenis, and others in whose countries the drones were operating, but, at a moment when U.S. government officials were engaged in a campaign of propaganda and misdirection, these stories supplied Americans with the facts they needed to understand and evaluate government policy.

Safeguarding the public’s right to know requires protecting not just journalists and publishers but sources as well. In recent years, some press-freedom advocates have urged the courts to afford government insiders charged under the Espionage Act an opportunity to argue that the public’s interest in learning the information they disclosed outweighed the government’s interest in protecting it. In an era in which the President has trouble differentiating journalists from “enemies of the people,” it may be up to the courts, and the people themselves, to insist on differentiating whistle-blowers from spies.