Enter the espionage act

Never before has the simultaneous crackdown on "unauthorized" leaks been so severe

The Espionage Act of 1917 arrived at the beginning of World War I, based on earlier law that included the British Official Secrets Act. President Woodrow Wilson had lobbied hard for the bill, though in its final form the law lacked the censorship authority he’d sought for the executive branch. The act made conveying information with intent to interfere with the operations of the U.S. military, a crime punishable by up to 30 years imprisonment — or death.

Socialists were among the first to be prosecuted under the law; Kate Richards O’Hare delivered an anti-war speech in North Dakota and received a five-year prison sentence. Similarly, Socialist Party presidential candidate, Eugene Debs, gave a speech encouraging listeners to resist the draft; he soon found himself sentenced to ten years. (Both were later pardoned by President Warren Harding.) The act was also used for mass arrests and deportations.

In 1950 the government indicted Julius and Ethel Rosenberg under the act. The husband and wife stood accused not just of making speeches, but of passing information to the Soviets, including technical details about the atomic bomb. They were convicted and executed in 1953, the only spies ever put to death in the U.S.

Daniel Ellsberg, who leaked the Pentagon Papers to the New York Times, faced espionage charges in 1971. "I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public," he said upon surrendering himself to a U.S. District Attorney. "I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision." The government’s case imploded when it surfaced that the Nixon administration had illegally wiretapped Ellsberg’s phone and broken into his psychiatrist’s office.

The Ellsberg and Manning cases share a number of similarities, and Ellsberg has voiced his support for Manning. But in the intervening years the court decided the case against Morison, broadening the use of the statute from "classic espionage" of the type practiced by the Rosenbergs — providing information directly to the enemy — to cover disclosures to the press as well. (Ellsberg’s case never got far enough to test a similar interpretation of the law.)

The Obama administration has made particularly strong use of the Espionage Act

That expansion has proven a boon to the executive branch, and the Obama administration has made particularly strong use of the Espionage Act. Thomas Drake for example, was a senior executive at the National Security Agency. In 2006, he began disclosing unclassified information to The Baltimore Sun, detailing billions of dollars lost to fraud and waste. He was subsequently charged with espionage — a charge which, by statute, can carry the death penalty. Drake lost his job and his pension; meanwhile, he had to deal with the skyrocketing legal costs of fighting the Department of Justice. He eventually pleaded to a minor charge and now works in an Apple store.

Such prosecutions, Drake told journalist Alexa O’Brien, send "the strongest possible message to those who would dare hold up the mirror from within and without regarding government misconduct, fraud, waste, abuse, war crimes, and wrongdoing, while also sending the real message to the Fourth Estate that they cannot hide behind the First Amendment as protection or refuge when printing the same."

Former CIA officer John Kiriakou faced a similar situation as one of the first people to make public the agency’s use of waterboarding. Convicted of revealing a covert operative’s name to a reporter, he’ll soon be entering prison for a 30-month sentence. Initially charged under the Espionage Act, he pled guilty to lesser charges under the Intelligence Identities Protection Act.

Meanwhile, selective leaks continue about the raid on Osama bin Laden’s compound, the use of drone strikes around the world, and the cyberwarfare program that created Stuxnet as a weapon against Iran’s nuclear program. As always, members of the government use leaks to serve their own ends, but never before has the simultaneous crackdown on "unauthorized" leaks been so severe. The use of the Espionage Act against Manning is generally seen as an attempt to leverage him against Julian Assange, who is likely the subject of grand jury proceedings. But the increasingly expansive use of a nearly century-old law — the constitutionality of which legal scholars still debate — has journalists such as Raffi Khatchadourian concerned. An Espionage Act indictment against Assange would be unprecedented, and could erode freedoms that reporters enjoy during their normal work of cultivating sources in government," he writes, "I, like other journalists, oppose the idea entirely."

Time magazine encapsulated the problem way back in 1985, writing of the Morison case, “The Government does need to protect military secrets, the public does need information to judge defense policies, and the line between the two is surpassingly difficult to draw.” Today, Thomas Drake says, that line increasingly favors government secrecy. "There are secrets in the public interest worth knowing and those who disclose those secrets (in a manner deemed unauthorized by the government)," he writes via email, "are violating the Prime Directive of the national security state — silence is loyalty and secrecy keeps you employed and out of trouble — so keep your trap shut."