WASHINGTON, D.C. – Yesterday, U.S. Representative Rashida Tlaib (D-MI) introduced an amendment to the annual National Defense Authorization Act (NDAA) which would amend the Espionage Act of 1917 to increase civil rights, civil liberties, and due process protections in the law. Representative Tlaib’s amendment targets a number of Constitutional defects identified by legal scholars and press freedom advocates which encourage prosecutorial abuse and prevent the possibility of a proper defense at trial.
Espionage Act prosecutions of journalists’ sources were once rare, but under the Obama Administration they became the go-to weapon against national security whistleblowers. Under the Trump administration, the law was charged for the first time against a publisher, in the case of Julian Assange. Nearly every press freedom group has warned of the dangerous precedent that would be set in prosecuting Assange for Espionage.
“It is long past time for Congress to step up and end the increasing abuse of the Espionage Act,” said Defending Rights & Dissent Policy Director Chip Gibbons. “Rep. Tlaib’s amendment is the boldest, most comprehensive effort we’ve seen yet. It would truly limit the Espionage Act to the prosecution of spies, not journalists, not their sources, and restore basic principles of due process in the event the government did take someone to trial.”
Specifically, Tlaib’s amendment would: require the government prove a specific intent to harm the U.S., require the information at issue be properly classified, permit a defendant to testify as to their purpose for disclosing the information, create an affirmative defense for revelations in the public interest, and preclude the use of the Espionage Act against journalists and publishers.
“For half a century, starting with my own prosecution, no whistleblower charged with violating the Espionage Act of 1917 has had, or could have, a fair trial,” said Pentagon Papers whistleblower, Daniel Ellsberg. “These long-overdue amendments would remedy that injustice, protect the First Amendment freedom of the press, and encourage vitally-needed truth-telling.”
In addition to Defending Rights & Dissent, a number of press freedom and government transparency organizations have already endorsed the amendment, including Freedom of the Press Foundation, Government Accountability Project, and The Project on Government Oversight.
Tlaib’s amendment will now move to consideration by the House Rules Committee, whose members will decide whether to allow it to move forward for a vote.