I may have just violated the Espionage Act by linking to this Washington Post report on leaked documents about the Russian-Ukrainian war. You may have just violated the act by reading it. That sounds ridiculous because it is. But the act says anyone who accesses national defense information must return it to the appropriate government official to avoid prison. I didn’t, did you?
It’s true, the government hasn’t invoked the 100-plus year-old law to prosecute news readers and probably won’t anytime soon. But the government has routinely abused its broad discretion under the law’s vague and ambiguous language to prosecute investigative journalism — including both publishers and sources.
An amendment (PDF) to the National Defense Authorization Act proposed by Rep. Rashida Tlaib could change all that. The amendment would not affect provisions of the Espionage Act used to prosecute actual espionage. It would stop Espionage Act prosecutions of journalists, publishers, and members of the public by limiting the act’s reach to government employees under a duty to protect confidential information. It would also:
- Require the government to prove whistleblowers and other defendants intended to harm the U.S. (as opposed to, for example, exposing government crimes to stop them).
- Relatedly, permit defendants to testify regarding the purpose of their disclosures.
- Allow defendants to prove their disclosures served the public interest.
- Limit prosecutions to cases involving properly classified information (the law predates the severely broken classification system and instead refers to “national defense” information).
The amendment would immediately and significantly improve the quality of investigative reporting available to Americans. Even when no charges are filed, the chilling effect on journalists and sources from the mere prospect of prosecution is immeasurable. Before he passed away last month, Freedom of the Press Foundation co-founder and Pentagon Papers whistleblower Daniel Ellsberg warned other potential whistleblowers: “Don’t do it under any delusion that you’ll have a high chance of ending up like Daniel Ellsberg,” i.e., dying outside of prison.
Yes, Tlaib introduced the same amendment last year, and yes, reforming a law as beloved by the many secrecy fanatics in our government as the Espionage Act will be an uphill battle. But it’s one we need to keep fighting, especially when the current administration continues former President Trump’s abuse of the Espionage Act to criminalize routine journalism.
Speaking of, it must be acknowledged that the two most famous Espionage Act defendants at the moment are polarizing figures — Julian Assange and Trump. Some may trust the current Department of Justice to only weaponize the Espionage Act against people they don’t like. That’s a mistake.
Even the Obama administration — which set records for Espionage Act prosecutions of whistleblowers — declined to charge Assange under the act because it recognized that doing so would open the door for prosecutions of more traditional journalists. When the next DOJ reversed Obama’s position it was easy to blame Trump’s hatred of the press — he’s unlikely to be concerned about setting precedents that harm reporters.
But then the Biden administration continued the Assange prosecution despite decrying sham espionage prosecutions of journalists abroad. It’s even pressuring other journalists to help it criminalize journalism. Clearly, once one administration claims power subsequent ones can’t be trusted to relinquish it. It’s anyone’s guess how the Espionage Act might be abused in a second Trump term or any other future administration. Let’s hope that, thanks to Tlaib’s amendment, we don’t need to find out.