The US observes National Whistleblower Day today, but despite this nominal recognition, whistleblower protections in many ways remain threadbare, and the most chilling threat to truth-tellers looms larger as ever in the continuing and expanding use of the Espionage Act. We put together the following overview of how the Espionage Act has increasingly been used to stifle whistleblowers and chill freedom of the press.
The recognition of the role of whistleblowers in protecting our democracy goes back to the founding generation. In fact, National Whistleblower day commemorates the passage in 1778 of a Congressional resolution recognizing the importance of whistleblowers. In 1777, petitioners sent letters to the Continental Congress complaining that their commodore abused prisoners and mistreated his men. (Other allegations included an addiction to swearing and taking the Lord’s name in vain.) The men understood the risk they were taking by disclosing misconduct. But they found it important anyway. Congress concurred, and passed a resolution defraying the whistleblowers’ legal expenses.
Fast forward a century. In 1917, Congress passed the Espionage Act. Predating modern First Amendment jurisprudence, the law was used against labor organizers and anti-war dissenters like Eugene Debs. (Listen to historian Carey Shenkman on our Primary Source Podcast to learn more!) In fact, several such Espionage Act cases were critical to the development of First Amendment doctrine.
The law was unused in press leak cases until late in the Cold War, with the indictment of Daniel Ellsberg. Prosecutors weaponized it to fire a broadside against whistleblowers and the right of journalists to freely inform the public on what their government is doing. In addition to charging Ellsberg, the Espionage Act was also the basis of the Nixon administration’s filing (granted temporarily) to block further publication of the Pentagon Papers, the first-ever such injunction against newspapers granted by a federal judge. Ellsberg’s prosecution fell apart, but only due to egregious misconduct by the government. The Supreme Court overturned the injunction on newspapers, but ominously left open the possibility that it might support punishment post-publication. (Listen to our interview with Dan on Primary Sources here)
Post-Watergate, the government backed down for a time, and then chose its next battle more carefully. In 1985, the Reagan DOJ indicted a naval analyst named Samuel Loring Morison for leaking top-secret satellite photographs of a Soviet shipbuilding facility to Jane’s Defence Weekly. Morison said his concern was that advances in Soviet aircraft carriers would necessitate more U.S. naval spending. The politics of his disclosures did not win him much sympathy from press freedom and civil liberties groups, who mostly stayed silent as he was ultimately prosecuted and lost his appeal. The U.S. government had finally achieved court precedent solidifying the criminalization of giving true information to the press. A 1989 article in Harper’s called it “The Quiet Coup” – and presciently recognized the importance of speaking out even for “unsympathetic” defendants lest they be used to set bad precedent.
Morison himself eventually benefited from Daniel Patrick Moynihan’s anti-secrecy campaign, after Moynihan convinced President Clinton to grant a pardon erasing what was still an extreme outlier prosecution. But at trial and on appeal, the courts in the Morison case had issued troubling precedents that effectively walled off the Espionage Act from badly-needed Constitutional scrutiny, and this would haunt whistleblowers to come.
As the abuses and excesses of the Global War on Terror metastasized under a cloak of intense secrecy, a number of insiders tried to alert the American public to what was being done. The Bush administration responded with a then-unprecedented level of criminal leak investigations, but ultimately it was the Obama administration that went nuclear and revived the use of the Espionage Act in its attempt to stop the leaks. A string of indictments were issued against whistleblowers such as Chelsea Manning, Shamai Leibowitz, Thomas Drake, John Kiriakou, Jeffrey Sterling, and Edward Snowden, for allegedly serving as journalists’ sources on explosive stories on war crimes, mass surveillance, torture, and dangerously incompetent covert operations against Iran. (Listen to our interviews with Thomas Drake, John Kiriakou, and Jeffrey Sterling)
Under the Trump administration, the Espionage Act was used to attain more and harsher sentences against whistleblowers. Reality Winner received five-and-a-half years in prison for leaking a single document on foreign interference in the 2016 election. Terry Albury received five years for exposing the FBI’s abusive policies on the surveillance of journalists and minority communities. Daniel Hale was sentenced to nearly four years for revealing the discriminatory and arbitrary rules of terrorism watchlists, and that military and political leaders were badly lying about the accuracy of drone strikes. Hale remains imprisoned in a Communications Management Unit (CMU) today, where he recently celebrated his 35th birthday. Our Policy Director, Chip Gibbons, covered the Kafkaesque nature of Hale’s trial and why imprisoning journalists’ sources damages democratic debate..
Presently, the Biden administration is still carrying forward Trump’s attempted extradition and prosecution of Julian Assange, which if successful would expand the use of the Espionage Act from sources all the way to publishers — a power over the press that the government has coveted since Nixon’s failed bid to quash the publication of the Pentagon Papers.
Defending Rights and Dissent recently worked for the introduction of an amendment to the NDAA that would rein in the use of the Espionage Act against whistleblowers acting in the public interest. The Tlaib-Omar Amendment is the gold standard to fix the Espionage Act, but was not allowed to the floor for a vote.
We’ll continue to push Congress to follow in the footsteps of 1778’s Congress, and acknowledge the role of whistleblowers in a vibrant democracy and act to protect them.