espionage act – Techdirt (original) (raw)

Assange Walks Free, But Press Freedoms Are Still In Peril

from the journalism-is-not-espionage dept

The Julian Assange saga has finally reached its absurd conclusion with a plea deal. But while Assange may be heading home to Australia, the implications for press freedom remain as dire as ever. The U.S. government has successfully criminalized a core function of journalism – working with sources to obtain and publish information in the public interest. And they’ve opened the door for future administrations to do the same, all while avoiding the pesky need for an actual court ruling.

I don’t agree with Julian Assange on much. And going back many years, we’ve noted how he’s a problematic character in many, many ways. But just being a problematic person does not mean that we throw basic rights out the window. We warned all the way back to 2010 that the US should not try to twist laws to charge him for doing things that basically any investigative journalist does on a regular basis.

The Obama administration kept looking for ways to charge him, but held back. Many people pointed out that going after him legally would set a terrible precedent regarding press and internet freedom. Eventually, after nearly a decade of investigation, the Trump administration finally had him arrested in 2019. He had already been in the Ecuadorian embassy for years, and they agreed to hand him over. The past five years have been a grueling fight over potential extradition to the US.

However, as we noted, no matter what you think of Assange, the indictment criminalizes things that journalists do all the time. If Assange’s actions with WikiLeaks violated the Espionage Act, then many, many people (not just journalists!) likely violated the Espionage Act as well. Calls for the Biden administration to drop the case fell on deaf ears. Two years ago, a UK judge approved the extradition, though the fight continued.

However, on Monday, a filing in the… um… US federal district court in the Northern Mariana Islands (?!?), revealed that a plea deal had been reached. Assange agreed to plead guilty to a single count: “conspiring with Chelsea Manning to commit the following offenses against the United States”:

To receive and obtain documents, writings, and notes connected with the national defense, including such materials classified up to the SECRET level, for the purpose of obtaining information respecting the national defense, and knowing and with reason to believe at the time such materials were received and obtained, they had been and would be taken, obtained, and disposed of by a person contrary to the provisions of Chapter 37 of Title 18 of the United States Code, in violation of Title 18, United States Code, Section 793(c);

b. To willfully communicate documents relating to the national defense, including documents classified up to the SECRET level, from persons having lawful possession of or access to such documents, to persons not entitled to receive them, in violation of Title 18, United States Code. Section 793(d); and

c. To willfully communicate documents relating to the national defense from persons in unauthorized possession of such documents to persons not entitled to receive them, in violation of Title 18, United States Code, Section 793(e).

Again, investigative reporters do all these things in cultivating sources, talking to whistleblowers, and collecting documentation for reporting. The idea that this violates the law is crazy.

But the details of the deal are that by pleading guilty, Assange gets no sentence. He’s already been couped up for years, first in the Ecuadorian embassy in the UK, then in a UK prison, and now he is being released and will apparently head home to Australia.

The deal obviously makes sense for Assange, in that he is freed and gets to go home after all these years. It makes sense for the US government that hasn’t seemed all that into keeping up the charade for an actual trial. So it’s good that it’s over.

But still, the whole thing remains ridiculous. Yes, Assange is problematic in many ways. Some of the accusations against him have been troubling. Wikileaks was a mess for years, and certainly had a history of selective leaking to help some entities while harming others. And for all of Assange’s talk of openness and transparency, it was pretty much all bullshit, as shown by the time he tried to threaten and silence people making a documentary about Wikileaks.

Even so, charging him with very serious crimes for merely doing the same thing journalists do is an affront to press freedom. As the Freedom of the Press Foundation rightly points out, it’s good that the case is over, but it’s ridiculous that he had to plead guilty to any of this:

It’s good news that the DOJ is putting an end to this embarrassing saga. But it’s alarming that the Biden administration felt the need to extract a guilty plea for the purported crime of obtaining and publishing government secrets. That’s what investigative journalists do every day.

The plea deal won’t have the precedential effect of a court ruling, but it will still hang over the heads of national security reporters for years to come. The deal doesn’t add any more prison time or punishment for Assange. It’s purely symbolic. The administration could’ve easily just dropped the case but chose to instead legitimize the criminalization of routine journalistic conduct and encourage future administrations to follow suit. And they made that choice knowing that Donald Trump would love nothing more than to find a way to throw journalists in jail.

Filed Under: chelsea manning, doj, espionage act, investigative reporting, julian assange, press freedom
Companies: wikileaks

Just Because The Espionage Act Has Been Abused For Political Purposes, It Does Not Mean The Trump Case Is Politically Motivated

from the actual-experts-weigh-in dept

The federal court-authorized search of former President Donald Trump’s Florida estate has brought renewed attention to the obscure but infamous law known as the Espionage Act of 1917. A section of the law was listed as one of three potential violations under Justice Department investigation.

The Espionage Act has historically been employed most often by law-and-order conservatives. But the biggest uptick in its use occurred during the Obama administration, which used it as the hammer of choice for national security leakers and whistleblowers. Regardless of whom it is used to prosecute, it unfailingly prompts consternation and outrage.

We are both attorneys who specialize in and teach national security law. While navigating the sound and fury over the Trump search, here are a few things to note about the Espionage Act.

Espionage Act seldom pertains to espionage

When you hear “espionage,” you may think spies and international intrigue. One portion of the act – 18 U.S.C. section 794 – does relate to spying for foreign governments, for which the maximum sentence is life imprisonment.

That aspect of the law is best exemplified by the convictions of Jonathan Pollard in 1987, for spying for and providing top-secret classified information to Israel; former Central Intelligence Agency officer Aldrich Ames in 1994, for being a double agent for the Russian KGB; and, in 2002, former FBI agent Robert Hanssen, who was caught selling U.S. secrets to the Soviet Union and Russia over a span of more than 20 years. All three received life sentences.

But spy cases are rare. More typically, as in the Trump investigation, the act applies to the unauthorized gathering, possessing or transmitting of certain sensitive government information.

Transmitting can mean moving materials from an authorized to an unauthorized location – many types of sensitive government information must be maintained in secure facilities. It can also apply to refusing a government demand for its return. All of these prohibited activities fall under the separate and more commonly applied section of the act – 18 U.S.C. section 793.

A violation does not require an intention to aid a foreign power

Willful unauthorized possession of information that, if obtained by a foreign government, might harm U.S. interests is generally enough to trigger a possible sentence of 10 years.

Current claims by Trump supporters of the seemingly innocuous nature of the conduct at issue – simply possessing sensitive government documents – miss the point. The driver of the Department of Justice’s concern under Section 793 is the sensitive content and the connection to national defense information, known as “NDI.”

One of the most famous Espionage Act cases, known as “Wikileaks,” in which Julian Assange was indicted for obtaining and publishing secret military and diplomatic documents in 2010, is not about leaks to help foreign governments. It concerned the unauthorized soliciting, obtaining, possessing and publishing of sensitive information that might be of help to a foreign nation if disclosed.

Two recent senior Democratic administration officials – Sandy Berger, national security adviser during the Clinton administration, and David Petraeus, CIA director under during the Obama administration – each pleaded guilty to misdemeanors under the threat of Espionage Act prosecution.

Berger took home a classified document – in his sock – at the end of his tenure. Petraeus shared classified information with an unauthorized person for reasons having nothing to do with a foreign government.

The act is not just about classified information

Some of the documents the FBI sought and found in the Trump search were designated “top secret” or “top secret-sensitive compartmented information.”

Both classifications tip far to the serious end of the sensitivity spectrum.

Top secret-sensitive compartmented information is reserved for information that would truly be damaging to the U.S. if it fell into foreign hands.

One theory floated by Trump defenders is that by simply handling the materials as president, Trump could have effectively declassified them. It actually doesn’t work that way – presidential declassification requires an override of Executive Order 13526, must be in writing, and must have occurred while Trump was still president – not after. If they had been declassified, they should have been marked as such.

And even assuming the documents were declassified, which does not appear to be the case, Trump is still in the criminal soup. The Espionage Act applies to all national defense information, or NDI, of which classified materials are only a portion. This kind of information includes a vast array of sensitive information including military, energy, scientific, technological, infrastructure and national disaster risks. By law and regulation, NDI materials may not be publicly released and must be handled as sensitive.

The public can’t judge a case based on classified information

Cases involving classified information or NDI are nearly impossible to referee from the cheap seats.

None of us will get to see the documents at issue, nor should we. Why?

Because they are classified.

Even if we did, we would not be able to make an informed judgment of their significance because what they relate to is likely itself classified – we’d be making judgments in a void.

And even if a judge in an Espionage Act case had access to all the information needed to evaluate the nature and risks of the materials, it wouldn’t matter. The fact that documents are classified or otherwise regulated as sensitive defense information is all that matters.

Historically, Espionage Act cases have been occasionally political and almost always politicized. Enacted at the beginning of U.S. involvement in World War I in 1917, the act was largely designed to make interference with the draft illegal and prevent Americans from supporting the enemy.

But it was immediately used to target immigrants, labor organizers and left-leaning radicals. It was a tool of Cold War anti-communist politicians like Sen. Joe McCarthy in the 1940s and 1950s. The case of Julius and Ethel Rosenberg, executed for passing atomic secrets to the Soviet Union, is the most prominent prosecution of that era.

In the 1960s and 1970s, the act was used against peace activists, including Pentagon Paper whistleblower Daniel Ellsberg. Since Sept. 11, 2001, officials have used the act against whistleblowers like Edward Snowden. Because of this history, the act is often assailed for chilling First Amendment political speech and activities.

The Espionage Act is serious and politically loaded business. Its breadth, the potential grave national security risks involved and the lengthy potential prison term have long sparked political conflict. These cases are controversial and complicated in ways that counsel patience and caution before reaching conclusions.

Joseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University Chicago and Thomas A. Durkin, Distinguished Practitioner in Residence, Loyola University Chicago

This article is republished from The Conversation under a Creative Commons license. Read the original article

Filed Under: classified information, donald trump, espionage act, national defense information, spying

The Case Against Reality Winner Was A Travesty

from the now-with-even-more-proof dept

Ever since Reality Winner was arrested, we’ve written about the ridiculousness of her case. It was yet another in a long line of cases using the Espionage Act to go after whistleblowers who aren’t spies, but are actively trying to do the right thing — and, as per the Espionage Act — not even allowed to give the context to the court. And, as we noted, the information that Winner “leaked” and for which she was sentenced to five years in prison, was publicly revealed by other government agencies anyway, which seems to completely erase any claim that the leaking of the documents caused some sort of harm to national security.

This week, 60 Minutes conducted an interview with Reality Winner and it’s worth reading (or watching). A key part is that Winner’s whistleblowing actually helped to better secure the 2018 election, providing useful information to protect against hackers:

But what prosecutors called grave damage was a bombshell of truth to the Federal Election Assistance Commission, which helps secure the vote. In hours, the commission issued an alert on the “NSA document leak.” It spelled out the top secret email addresses “utilized by the attackers.” And urged officials to “check email logs.” Blindsided by Winner’s revelation, the commission called for “full disclosure of election security intelligence.” Two former officials told us, Reality Winner helped secure the 2018 midterm election.

That sure sounds like fundamental whistleblowing, and not “espionage.” But, under the Espionage Act, Winner was not allowed to discuss any of that.

The piece also details her motivations, which were basically to make sure people knew that the president was (1) lying about election hacks, and (2) as noted above, to make sure the people who needed to actually protect our elections were aware of vulnerabilities:

President Trump: If you don’t catch a hacker, okay, in the act, it’s very hard to say who did the hacking.

The president was raising doubt that Russia attacked the 2016 election. His interview with John Dickerson was typical of the time.

President Trump: I’ll go along with Russia, could have been China, could’ve been a lot of different groups.

But it was Russia and the NSA knew it. Reality Winner had seen proof in a top secret report on an in-house newsfeed.

Reality Winner: I just kept thinking, “My God, somebody needs to step forward and put this right. Somebody.”

The secret report said, in 2016, the Russian military “executed cyber espionage” against “122… local government organizations” “targeting officials involved in the management of voter registration systems.” It was top secret, in part, because it revealed what the U.S. knew about Russian tactics. Winner told us she was exposing a White House cover up. She printed the report, dropped it in this mailbox, addressed anonymously to an online news source that specialized in government wrongdoing. The NSA report was published a month later.

The piece also highlights the unfair treatment Winner got as compared to things that seem a hell of a lot more serious (and much, much closer to actual espionage):

In 2008, Gregg Bergersen, a Pentagon employee, was convicted of selling secrets to the Chinese. He was seen in FBI surveillance getting his pocket stuffed with cash. His sentence was six months shorter than Reality Winner’s. In 2012, former Army general and CIA Director David Petraeus gave notebooks of top secret information to an author who was his mistress. He was charged with misdemeanor mishandling of classified information and never spent a minute in jail.

The Espionage Act itself is a travesty and needs to be repealed. The entire setup of the law is such that it is not that useful in actual espionage cases, but has become a powerful tool for the government go after whistleblowers.

Filed Under: election security, espionage act, leaking, reality winner, whistlebowing

UK Approves Extradition Of Julian Assange, Allowing The US Government To Continue Criminalizing Journalism

from the publishing-leaks?-that's-a-prosecuting. dept

It appears all but inevitable that Julian Assange will be receiving an all-expenses-paid (except for his defense!) one-way trip to the United States to face espionage charges for, mostly, performing acts of journalism.

The Wikileaks founder has done plenty of self-inflicted damage to his reputation over the past few years, but his organization was instrumental in uncovering plenty of abusive behavior by the US government that had been perpetrated in secret.

Leaks are an instrumental part of government accountability, even if governments often treat leaks as criminal acts. And while it’s abhorrent to see the government punish whistleblowers who found the accepted whistleblowing routes inadequate, it’s even worse to see the US government engaged in a prosecution that threatens press freedoms in the home of the First Amendment.

The Obama Administration toyed with the idea of extraditing Assange to try him on criminal charges, but ultimately abandoned that effort, most likely due to the First Amendment implications. The Trump Administration — despite finding Assange to be an unlikely ally — had no such concerns. As the administration struggled to contain seemingly daily leaks, it decided sacrificing an ally might send a message to US journalists, many of whom the president treated with open hostility.

Why the Biden Administration is allowing this to continue isn’t clear. Perhaps the Biden DOJ feels the espionage charges are legit. Maybe it feels it should silence Assange before he does any more damage to the federal government. Maybe it feels it should punish an ally of Trump (and a seeming supporter of Russian disinformation campaigns) before he can wreak any more havoc on democracy in general.

Whatever the case, the prosecution continues. And, as Trevor Timm points out in his post for Freedom of the Press Foundation, you don’t have to be a supporter of Assange to understand extradition and prosecution over the publication of leaked documents will do severe damage to journalists in the United States, and anywhere else in the world the US government has extradition agreements in place.

You don’t have to like Assange or his political opinions at all to grasp the dangerous nature of this case for journalists everywhere, either. Even if you don’t consider him a “journalist,” much of the activity described in the charges against him is common newsgathering practices. A successful conviction would potentially make receiving classified information, asking for sources for more information, and publishing certain types of classified information a crime. Journalists, of course, engage in all these activities regularly.

There’s precedent for this, unfortunately. But it’s the sort of precedent the Biden DOJ shouldn’t willingly embrace. Timm notes that the extradition announcement falls on the anniversary of the Pentagon Papers trial, one instigated by a president whose downfall was the result of journalists publishing leaked documents.

What many do not know is that the Nixon administration attempted to prosecute Times reporter Neil Sheehan for receiving the Pentagon Papers as well — under a very similar legal theory the Justice Department is using against Assange.

Thankfully, that prosecution failed. And until this one does too, we continue to urge the Biden administration to drop this prosecution. Every day it continues to further undermine the First Amendment.

You’d think any administration would actively avoid replicating nearly anything instigated by the Nixon Administration. But here we are, fifty years later, experiencing deja vu as our government spends millions of our dollars to threaten long-held First Amendment protections.

Filed Under: 1st amendment, espionage act, extradition, free speech, journalism, julian assange, leaks, uk
Companies: wikileaks

Whistleblower Daniel Hale Sentenced To 45 Months In Prison For Exposing The Horrors Of US Drone Strike Programs

from the Espionage-Act-just-means-every-good-deed-gets-punished dept

A Tennessee man was sentenced today to 45 months in prison followed by three years of supervised release for illegally obtaining classified national defense information and disclosing it to a reporter.

So begins the very dry press release from the Department of Justice. What this is, though, is another successful prosecution of a whistleblower. The “Tennessee man” is Daniel Hale, the whistleblower who exposed the breadth and reach of the United States’ extrajudicial killing programs.

Hale’s leaks followed shortly after Snowden’s string of NSA bombshells. The intel gathered by the NSA’s many programs formed the backbone for the drone strike programs Hale exposed: the “metadata” our government uses to “kill people.”

Hale’s house was raided by the FBI back in 2014, shortly after he was interviewed for the drone warfare documentary “National Bird.” During his interview, Hale remarked on the risk he was taking discussing the program. Documents leaked to The Intercept by Hale resulted in the multi-part “Drone Papers” feature. The documents exposed the lengthy intel gaps that occurred between target acquisition and drone strikes. It also showed the Defense Department and CIA referred to collateral damage (i.e., the killing of nearby civilians) as “combatants killed in action,” with minimal attempt made to tally up the number of people killed simply for existing near the government’s targets.

The prosecution didn’t begin until 2019, leaving Hale in suspended animation for nearly a half-decade. This prosecution under Trump pushed him past Obama for most whistleblowers prosecuted — just another lousy addition to a lousy president’s legacy.

This is the sort of thing Hale exposed and is now being imprisoned for sharing with journalists and US citizens expected to support these activities with their tax dollars.

Daniel knew cell phones could have been passed from presumed terrorists to other people entirely, and innocent people and those around innocent people would then be killed instead.

[…]

There was further evidence that when military-age males were murdered in a strike, they were classified as militants, an accounting trick that lowers civilian-death counts, and there was an account of a five-month period in Afghanistan in which U.S. forces hit 19 people who were targets of strikes and 136 who were not the targets. There were admissions that the intelligence on which strikes were based was often bad and that strikes made it difficult to get good information because the people who might have provided that information had just been killed by the strike.

Hale pled guilty to “retention and transmission of national defense information.” This is a charge under the Espionage Act. His plea followed the judge’s declaration that the court would not allow Hale to offer any public interest defense for his actions — something that’s almost always the case in espionage prosecutions. But Hale didn’t hand this information to our nation’s enemies. He handed it to journalists who published reports based on the documents. This wasn’t an attempt to harm our nation. It was an attempt to inform Americans about the atrocities carried out in the name of national security.

For this act of courage, Hale will serve nearly four years in prison. And the war machine will roll on, not even momentarily interrupted by the publication of this supposedly sensitive information.

Filed Under: daniel hale, doj, drone program, drone strikes, espionage act, extrajudicial killing, journalism, leaks, whistleblower

Civil Rights Groups Argue That Biden Should Drop Assange Prosecution; Noting That It Is An Attack On Journalism

from the do-it dept

It’s easy to dislike and distrust Julian Assange. He’s done many things to inspire both reactions. Still, it’s important to separate out personal feelings towards the guy with the question of whether or not he broke US law with publishing the things he did via Wikileaks. For years, the Obama DOJ refused to indict him, in part due to the recognition that nearly all of Assange’s activities were similar to the kinds of things that journalists do all the time. The Trump DOJ had no such restraint (even as some prosecutors warned of problems with the idea), and as we and others have pointed out the indictment is a huge threat to investigative journalism and things like source protection.

Now that Biden is President, a whole bunch of civil rights groups have sent a letter to Acting Attorney General Monty Wilkinson, asking him to drop the case against Assange. The letter notes that many of the signatories do not agree with Assange or Wikileaks, but that doesn’t mean the case is a good one:

While our organizations have different perspectives on Mr. Assange and his organization, we share the view that the government?s indictment of him poses a grave threat to press freedom both in the United States and abroad. We urge you to drop the appeal of the decision by Judge Vanessa Baraitser of the Westminster Magistrates? Court to reject the Trump administration?s extradition request. We also urge you to dismiss the underlying indictment.

The indictment of Mr. Assange threatens press freedom because much of the conduct described in the indictment is conduct that journalists engage in routinely?and that they must engage in in order to do the work the public needs them to do. Journalists at major news publications regularly speak with sources, ask for clarification or more documentation, and receive and publish documents the government considers secret. In our view, such a precedent in this case could effectively criminalize these common journalistic practices.

In addition, some of the charges included in the indictment turn entirely on Mr. Assange?s decision to publish classified information. News organizations frequently and necessarily publish classified information in order to inform the public of matters of profound public significance. We appreciate that the government has a legitimate interest in protecting bona fide national security interests, but the proceedings against Mr. Assange jeopardize journalism that is crucial to democracy.

Jameel Jaffer, who heads the Knight First Amendment Institute, which was on of the signatories on the letter, has written an article also detailing why the Biden DOJ should drop the case that is worth reading:

Of Trump?s many attacks on press freedom, however, it?s his Justice Department?s indictment of Julian Assange that could have the most significant implications over the long term. As I explained here and here, the Justice Department?s indictment of Assange focuses principally on activity that national security journalists engage in ?routinely and as a necessary part of their work??cultivating sources, communicating with them confidentially, soliciting information from them, protecting their identities from disclosure, and publishing classified information. As a result, a successful prosecution of Assange would have far-reaching implications both for national security journalists and for the news organizations that publish their work. This isn?t an accident. It?s likely why the Trump administration filed the indictment, as Jack Goldsmith observed here.

President Joe Biden plainly does not share Trump?s attitude toward the press. But the Assange case will present the Biden administration with an early test. One of the first questions Biden?s new attorney general will confront is whether to authorize prosecutors to continue to contest the decision of the Westminster Magistrates? Court, issued earlier this year, denying the United States? request for Assange?s extradition. In an interview with NPR, the outgoing U.S. Attorney for the Eastern District of Virginia, Zachary Terwilliger, wondered whether the new administration would abandon the appeal. ?Some of this does come down to resources and where you?re going to focus your energies,? Terwilliger noted.

Again, whether you agree with Assange’s view of the world, or how you feel about Wikileaks’ apparent decision to cozy up with Russians is a separate issue from whether the indictment itself is a threat to journalism. It is. And the new DOJ should drop the case. It would be unfortunately if Biden continued along the same path the Obama administration did in pretending that journalism is a form of espionage. Dumping the Assange suit would send a clear signal that Biden actually recognizes the value and importance of adversarial investigative journalism, even if it might embarrass him.

Filed Under: doj, espionage act, free speech, joe biden, journalism, julian assange

Judge Refuses To Extradite Julian Assange, Citing US Prison Conditions & Assange's Mental Health

from the a-slight-win-for-journalism dept

Even if you think that Julian Assange conspired against the US with the help of Russia, as some allege, you should still be extremely concerned about the US’s prosecution of him. As we’ve explained, the details in the indictment would criminalize many activities that journalists do every single day. It would be a massive expansion of how the Espionage Act was interpreted and would try to blame him for hacking he had nothing to do with.

So, at least for now, it’s good to see that a UK court has refused to extradite Assange to the US. The reasons have little to do with the sketchiness of the underlying case, but rather is a condemnation of US prison conditions. The judge notes that in Assange’s current mental state, he’d likely end up killing himself if placed in the US prison system, but rejected the claims from Assange that the prosecution is politically motivated, and therefore invalid.

In a mixed ruling for Assange and his supporters, District Judge Vanessa Baraitser rejected defense arguments that the 49-year-old Australian faces a politically motivated American prosecution that rides roughshod over free-speech protections. But she said Assange?s precarious mental health would likely deteriorate further under the conditions of ?near total isolation? he would face in a U.S. prison.

?I find that the mental condition of Mr. Assange is such that it would be oppressive to extradite him to the United States of America,? the judge said.

The US has already said it’s appealing the ruling, so this is far from over. It’s unclear if Assange’s team will be appealing the rejection of the political prosecution claims, as well as the claims that Assange was acting as a journalist. The Freedom of the Press Foundation, who was an early supporter of Assange, before later fighting with him, celebrated the ruling:

Today?s ruling is a huge sigh of relief for anyone who cares about press freedom. While the judge?s opinion contains many worrying assertions that disregard journalists? rights, her rejection of the Trump administration?s extradition request means the US government likely won?t be able to obtain any precedent that would criminalize common newsgathering and publishing practices. And that is a very good thing.

I agree that it’s good that the extradition attempt has failed for now, but I’m extremely worried about the judge rejecting the free speech/journalism/political attack arguments. Again, much of what Assange did — even if you disagree with it or think it was done under the auspices of a foreign country — should not be considered criminal. The descriptions in the indictment could easily apply to tons of journalists, both in the US and abroad.

Whether or not Assange is a horrible person is unrelated to the legal principles at stake. The entire case appears to be a politically motivated attack on publishing embarrassing documents, and that should raise significant 1st Amendment questions.

Filed Under: 1st amendment, espionage act, extradition, free speech, journalism, julian assange, uk, us

Sen. Wyden And Rep. Khanna Introduce Bill That Would Protect Journalists And Whistleblowers From Bogus Espionage Prosecutions

from the you-know,-the-protections-they're-already-supposed-to-have dept

Two consecutive administrations have engaged in wars on whistleblowers. President Obama used the Espionage Act to punish more whistleblowers and leakers than all other previous administrations combined. President Trump promised to “drain the swamp” and reverse all the damage he believes Obama had done to this nation. Apparently that doesn’t include ejecting yes men from prominent government positions or scaling back Obama’s anti-whistleblower activities.

Now that it’s clear Bill Barr’s DOJ is just an Oval Office lapdog, Senator Ron Wyden and Representative Ro Khanna are trying to do something to protect journalists who receive and report on leaked documents and other whistleblower activity.

The Espionage Act Reform Act [PDF] would strengthen protections for journalists and whistleblowers, shielding them from vindictive prosecutions for engaging in acts protected by the First Amendment and (supposedly) by the federal government itself.

A FAQ [PDF] released with the bill makes it clear the new law would not prevent legitimate deployment of the Espionage Act to prosecute government employees who hand government secrets to those not authorized to receive them, as well as foreign spies and other agents of foreign powers.

What it would do is keep journalists from being prosecuted under the law and make it easier for whistleblowers to bring their concerns up through the proper channels. Here’s what the bill does:

? Protects journalists who solicit, obtain, or publish government secrets from prosecution. ? Ensures that each member of Congress is equally able to receive classified information, including from whistleblowers. Currently, the law criminalizes the disclosure of classified information related to signals intelligence to any member of Congress, unless it is in response to a “lawful demand” from a committee. This puts members in the minority party and those not chairing any committee at a significant disadvantage. ? Ensures that federal courts, inspector generals, the FCC, Federal Trade Commission, and Privacy & Civil Liberties Oversight Board can conduct oversight into privacy abuses. ? Ensures that cybersecurity experts who discover classified government backdoors in encryption algorithms and communications apps used by the public can publish their research without the risk of criminal penalties. It is up to governments to hide their surveillance backdoors; academic researchers and other experts should not face legal risks for discovering them.

This will prevent this administration (and the ones that follow it) from targeting whistleblowers and journalists — something the Trump administration has been openly doing. It will also open up the official channels, making it easier for whistleblowers to take their concerns to Congress, rather than forcing them to navigate a complicated maze of deterrents with the omnipresent threat of prosecution hanging over their heads.

The protections for security researchers is also a welcome addition. Researchers often become the subject of legal threats and criminal charges just for doing the important work of ensuring data and systems that should be secured are actually secure.

Of course, this bill is being sent into hostile territory. The administration certainly doesn’t want to see whistleblowers and journalists protected, and neither do far too many legislators. But if it does become law, it will reset the status quo — turning the Espionage Act back into the law it was always supposed to be: something to wield against foreign spies and federal employees seeking to do harm to the nation, rather than those who actually wanted to make America better by reporting on wrongdoing.

Filed Under: doj, espionage act, free speech, journalism, leaks, ro khanna, ron wyden, whistleblowers

Current Whistleblower Scandal Shows (Again) That The Official Channels Are Useless

from the no-sense-fixing-what-no-one-really-wants-fixed dept

The official channels for whistleblowing are meant to deter whistleblowers. Just look at what has happened to the whistleblower currently at the center of accusations against President Trump. Despite raising concerns urgent enough the IC’s Inspector General felt compelled to notify Congress, the Office of the Director of National Intelligence decided the allegations were too sensitive to be shared with its oversight.

Ed Snowden saw how useless the official channels were. That’s why he and a ton of sensitive documents headed to Russia via Hong Kong. The United States government has no time for whistleblowers. Hunting down and punishing whistleblowers is the national pastime — one that Barack Obama particularly enjoyed.

The Trump Administration isn’t any better. Obama may have passed some mostly-worthless protections for IC whistleblowers before he left office, but the current administration is engaging in a demonstration of just how worthless those protections are.

Nick Baumann’s detailed examination of the flawed whistleblower procedures is worth a read. It shows exactly why Snowden chose the path he did, and why the whistleblower behind this latest report is probably headed towards a premature exit from public service.

This system, in which even those who follow the rules are persecuted for talking out of turn, is not new, [former DOJ legal ethics advisor Jesselyn] Radack noted. “Thomas Drake — an NSA surveillance whistleblower pre-Snowden — was prosecuted under the Espionage Act after following the procedures in the Intelligence Community Whistleblower Protection Act,” she said. Seeing what happened to Drake, she added, led “Snowden to correctly conclude that using the same channels that entrapped Drake to make his disclosures … would be an exercise in futility.”

Snowden’s government critics should have known this better than anyone. Obama’s administration used the Espionage Act against more alleged leakers than any administration before or since. An interagency review panel later found that Ellard, the NSA inspector general who said Snowden should’ve come to him, had himself retaliated against a whistleblower. The panel, composed of inspectors general from outside the Defense Department, recommended Ellard be fired; the Defense Department later overruled that decision.

The basic problem with government whistleblowing, as Snowden noted in October 2013, is that “you have to report wrongdoing to those most responsible for it.”

In this case, the person involved in the alleged wrongdoing is none other than the President himself. The person making the allegations comes from the same governmental branch they’re making accusations against. It’s little surprise the ODNI — an executive agency — is in no hurry to allow Congressional oversight to examine the report or speak to the whistleblower. The ODNI may not be directly involved in the alleged wrongdoing, but it made a decision to protect the alleged violator, rather than the person utilizing the proper channels to have their concerns addressed.

The only thing going for the whistleblower now is that the publicity surrounding this report will likely prevent direct retaliation from the President and the administration. But that still leaves the agency the whistleblower works for, as well as the ODNI itself. Both of these could engage in direct retaliation without it being noticed (at least not immediately) by anyone outside of these entities. By the time anyone gets around to addressing these violations, the whistleblower will likely be out of a job and informally blacklisted by the federal government. In the United States, whistleblower protections are just another way to ensure no good deeds go unpunished.

Filed Under: ed snowden, espionage act, intelligence community, leaks, proper channels, prosecution, whisteblowers, whistleblowing

Federal Prosecutors Questioned The Assange Prosecution, But Their Concerns Were Ignored By The DOJ

from the gov't-gets-it-man-and-the-citizens-get-a-little-less-free-speech dept

The DOJ spent several years toying with the idea of prosecuting Julian Assange for the publication of leaked documents. It finally pulled the trigger earlier this year, utilizing UK police to pick up the ousted Assange from the Ecuadorian embassy. There was only a single charge related to cracking passwords protecting classified documents. It wasn’t much of an indictment, but it initially appeared the DOJ might steer clear of the First Amendment… well, at least as well as it’s capable of doing.

That all changed last week. The DOJ brought a new indictment, loaded with charges and First Amendment implications. It was no longer limited to some password-cracking attempts that went further than receiving sensitive files from a source. The new indictment basically turns journalism into treason. Things journalists do every day, like cultivating sources, seeking out leakers/whistleblowers, and publishing the results of these efforts are all treated as Espionage Act violations.

The charges are so broad, they cover more than the day-to-day business of journalism. If all it takes is asking someone to hand over sensitive documents, it’s likely Donald Trump himself violated the Espionage Act while still on the campaign trail when he informally asked Russia to dig up 30,000 emails from then-State Department head Hillary Clinton’s servers.

This prosecution has the potential to do so much damage to First Amendment press protections, even the DOJ wasn’t of a single mind when it came to pushing the new indictment.

Two prosecutors involved in the case against WikiLeaks founder Julian Assange argued against the Justice Department’s decision to accuse him of violating the Espionage Act because of fear that such charges posed serious risks for First Amendment protections and other concerns, according to people familiar with the matter.

The Obama Administration began the case against Assange, but ultimately decided to abandon its pursuit of this prosecution because of the very issues we’re seeing raised now. Unfortunately, the case was never closed. Incoming Attorney General Jeff Sessions pushed this back into the prosecutorial queue as part of the Trump Administration’s efforts to deter whistleblowers and leakers.

That push was met with internal resistance from two DOJ prosecutors who recognized the prosecution being pushed by AG Sessions was highly problematic.

When it came to Assange, [prosecutor] James Trump was concerned about pursuing a prosecution that was so susceptible to First Amendment and other complicated legal and factual challenges, the people familiar with the matter said.

Another prosecutor, Daniel Grooms, also disagreed with charging Assange, according to the people familiar with the matter. At the time, Grooms served as criminal chief in the U.S. Attorney’s office that was handling the case.

By the time the first indictment was issued, James Trump’s opinion had been disregarded and Grooms was no longer with the agency. Their protests weren’t enough, and now the DOJ is neck deep in Constitutional concerns.

The Assistant AG leading Assange’s prosecution said the following during his announcement of the superseding indictment, as if this somehow threaded the needle on the Constitutional side effects of turning journalism into treason:

The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department’s policy to target them for their reporting.

Julian Assange is no journalist. This made plain by the totality of his conduct as alleged in the indictment—i.e., his conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the names of human sources.

Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers. And this is just what the superseding indictment charges Julian Assange with doing. The new charges seek to hold him responsible in light of the full breadth of his illegal conduct.

But that is journalism. Journalists encourage sources to acquire classified information. Journalists publish documents that may result in harm to national security. It happens and it’s part of the job. It’s an integral part of holding the government accountable for its actions. Yes, journalists should take care to prevent foreseeable harm, but they are under no obligation to withhold every bit of information the government feels shouldn’t be published.

I supposed we should be happy there was some internal pushback. But the DOJ is engaged in a very dangerous prosecution that, if successful, will lay the groundwork for prosecuting journalists for engaging in journalism.

Filed Under: 1st amendment, daniel grooms, doj, espionage act, james trump, journalism, julian assange
Companies: wikileaks