Photo credit: MPAC National
For years now, the U.S. Department of Justice (DOJ) has been abusing the Espionage Act – the 100+-year-old law meant for spies – to prosecute the sources of journalists who disclose newsworthy information to newspapers in order to inform the American public.
We’ve written a lot about how the draconian law is incredibly unjust and leads to unfair show trials for brave whistleblowers who take great risks to expose the truth. For example, the Espionage Act does not allow a defendant to tell the jury why they spoke with a reporter (even if their reason was to expose illegality or unconstitutional programs). They also cannot argue that the information they disclosed to a journalist was improperly classified, or that the disclosure caused no actual harm to national security.
Recently, the DOJ — first under President Trump and continued under the Biden administration — has taken the Espionage Act an ominous step further and is attempting to wield the law against publishers. It’s a dangerous gambit that could potentially criminalize national security journalism at the nation’s largest and most influential newspapers.
But that all could potentially change if Congress adopts Rep. Rashida Tlaib’s excellent new amendment to Congress’s annual National Defense Authorization Act.
This amendment is by far the best reform we’ve seen come through Congress since we’ve been tracking this issue. As our friends at Defending Rights & Dissent explain, this bill proposes several vital reforms to make sure whistleblowers and journalists aren’t unjustly persecuted, while still enabling the Espionage Act to be used against actual spies:
- Requires the government prove specific intent to injure the United States
- Requires that the information exposed was actually properly classified
- Permits a defendant charged under the Espionage Act to testify as to their purpose for disclosing the information
- Creates a public interest defense.
- Additionally, the amendment would undermine the government’s effort to prosecute Julian Assange - or any future publisher or journalist - under the Espionage Act by excluding journalists, publishers, and members of the general public from its jurisdiction.
Please follow this link to tell your member of Congress they need to support this bill! The next few days will be critical in determining whether this amendment will make it into the final version of the NDAA.
Our sincere thanks to Rep. Tlaib and her staff for crafting such a vital and thoughtful bill that could do more to help journalists and whistleblowers than anything Congress has passed in decades.
