Last night, the House Rules Committee blocked an amendment to the National Defense Authorization Action that would have amended the draconian Espionage Act to prevent its continued abuse against journalists, their sources, and whistleblowers. Had the Rules Committee approved the amendment, put forward by Rep. Rashida Tlaib (D-MI) and supported by Rep. Ilhan Omar (D-MN), Congress would have had a floor debate on the first substantive reform to the Espionage Act since the 1920 repeal of the Sedition Act. Instead, in a purely political decision, the Rules Committee ruled the amendment “out of order.”
The Tlaib-Omar amendment built on past efforts to reform the Espionage Act supported by Defending Rights & Dissent. Writing for Freedom of the Press Foundation, Trevor Timm called it “the best reform we’ve seen come through Congress since we’ve been tracking this issue,” stating the amendment “could do more to help journalists and whistleblowers than anything Congress has passed in decades.” Unlike past reform efforts that dealt with either the problems faced by publishers and journalists or whistleblowers and sources, this comprehensive amendment would rectify a litany of Espionage Act abuses and bring the law in line with current First Amendment jurisprudence.
Specifically, the amendment
The Espionage Act was passed during World War I. In spite of a name that sounds like it was designed to target spies and saboteurs, its immediate target was those who opposed US involvement in the war. Even with political repression in full swing, war zealots would a year later expand the law with amendments known as the “Sedition Act.” The Sedition Act amendments were repealed in 1920.
The Espionage Act predates modern First Amendment jurisprudence. In fact, popular opposition to the use of the law against political dissent and the willingness of the judiciary to act as an accomplice to the war time shredding of civil liberties helped to set the stage for our modern understanding of the First Amendment. But during World War I the government argued that even seemingly mild criticisms of the war or government could lead individuals to decline to join the military or refuse conscription. They claimed war critics had violated provisions criminalizing obstructing recruitment and conscription and inciting insubordination within the military. Initially, the courts were largely willing to rubber stamp this theory. However, during World War II, when the government attempted to apply this legal logic to far-right anti-Semite O. M. Hartzel, the Supreme Court struck a different tune. They ruled that the government could not convict someone for pure speech without proving specific intent. They overturned Hartzel’s Espionage Act conviction.
When it comes to government employees who work with the media to alert the public about abuses of powers, courts have either failed to comprehend, or turned a blind eye to the pressing speech issues. As a result, they have failed to properly apply the specific intent standard.
This has resulted not only in a situation where the government does not need to prove a defendant under the Espionage Act committed “classic spying and espionage activity,” but deprives a defendant of a chance to defend themselves. All the government must prove is that the defendant had “reason” to believe their actions could injure the United States – not that they intended to do so. With government employees, the government cites their non-disclosure agreements and other training about handling classified information as giving them a reason to believe releasing classified information could hurt the US. Since all the government must prove is that a defendant gave classified information to the media, the defendant is barred from discussing what they disclosed or why they did it in front of a jury.
Forcing the government to prove a defendant acted with the specific intent to injure the United States or aid a foreign power, should open the door for whistleblowers to explain how they acted with the public interest in mind. But the Tlaib-Omar amendment left nothing to chance. It also would create an affirmative public interest defense and affirmative right for a whistleblower to testify about the purpose of their disclosures.
The amendment would have done two other vitally important things. The Espionage Act predates the classification system and thus references not classified information, but “national defense information.” The amendment would make the Espionage Act apply to properly classified information instead. This is necessary because courts have ruled defendants cannot challenge the classification of what they released in part because the Espionage Act criminalizes the disclosures of both properly and improperly classified information. The proposed reform also amends who the Espionage Act applies to, limiting it to just those with a duty to protect classified information or foreign agents. This would mean the law could not be used against journalists and publishers.
Although the Rules Committee blocked a floor vote on this historic amendment, it received a wide outpouring of support. Government transparency organizations endorsed the amendment, including Freedom of the Press Foundation, Government Accountability Project, The Project on Government Oversight and National Security Counselors. Whistleblowers prosecuted under the Espionage Act, including Daniel Ellsberg, Thomas Drake, and John Kiriakou also voiced support, as did drone whistleblower Lisa Ling, lawyer Jesselyn Raddack, who has represented numerous clients indicted under the Espionage Act, and Billie Winner-Davis, the mother of Reality Winner.
Although the NDAA amendment has been blocked, Defending Rights & Dissent will continue to lead the efforts to reform the Espionage Act. The outpouring of support for the amendment, especially when there were nearly 1200 amendments up for consideration, shows that there is urgent demand for real, bold comprehensive reform of the Espionage Act.