Obama administration increases Espionage Act prosecutions

By Zachary Toillion

In 1917, the Espionage Act was passed by Congress and signed into law by President Woodrow Wilson largely to silence dissidents of World War I and prosecute spies of foreign governments. Political dissidents jailed as a result of this aspect of the law later received commutations of their sentences as parts of the law were repealed in 1921 One sentence was overturned on appeal. Since the act’s passage prosecutions against government employees who leaked government information to journalists have very rarely been prosecuted.

Some of the most high profile prosecutions under the Espionage Act have been within the last five years, namely the disclosures of classified state department and NSA documents.

The first example is Chelsea Manning, who released 250,000 confidential state department cables to the website Wikileaks. Wikileaks was founded by Julian Assange, with the goal of acquiring secret documents in the name of transparency. Manning was charged and convicted under the espionage act in 2013, and sentenced to 35 years in prison.

The ramifications of Manning’s leaks are in the eye of the beholder. Supporters believes revelations from the cables led to the successful 2011 Tunisian Revolution which in turn led to the Arab Spring-a movement that toppled the long time regimes in Egypt and Libya and additional large scale protests of Syria, Yemen and Bahrain. Detractors believe the leaks unnecessarily put the lives of American troops and our allies in danger.

The second high profile use of the espionage act is an ongoing saga that began in the Summer of 2013. In June 2013, The Guardian’s Glenn Greenwald reported a former government contractor named Edward Snowden had approached him and documentary filmmaker Laura Poitras earlier in 2013, under an alias, and eventually leaked 1.7 million documents exposing the NSA’s domestic and international surveillance programs to the duo.

Shortly after Snowden’s identity was known the State Department revoked his passport and the Justice Department announced it’s intention to charge Snowden with violating two counts of the Espionage Act. Snowden fled Hawaii, where he was living and sought asylum in a number of countries citing his pending prosecution under the Espionage act. For now, Snowden remains in Russia and his asylum has run out as of July 31st, although an extension is likely to be granted. Previously Snowden had been offered asylum in Venezuela and Nicaragua after applying to 21 countries.

The precedent for these two cases was set 40 years earlier when the Nixon Justice Department began the prosecution of Daniel Ellsberg. In 1971, Ellsberg leaked secret government documents that showed the Johnson administration lied to Congress and the public about events that took place during the Vietnam War. Among the leaks were secret bombing campaigns in Cambodia and Laos. Like Snowden, Ellsberg stole government documents as a contractor for a government agency–in this case the Department of Defense–and leaked the documents to leading media outlets including the New York Times. Ellsberg’s detractors also alleged his leaks put the lives of American troops in danger.

The Obama administration has used the Espionage Act more than any other administration in history since its passage. Only three other cases were started by other administrations. As a matter of record the Obama administration has prosecuted seven cases under the Espionage Act, however two prosecutions using the act began in the Justice Department during the final months of the Bush administration. In other cases, the Obama administration has asked journalists to reveal their sources citing national security interests, an admission that is neither required in American or international law.

The Obama administration has aggressively prosecuted leaks, but the leaks they have prosecuted have been highly selective. In June of 2012, a story was leaked to the New York Times that the Obama had signed off on “a wave of cyberattacks against Iran”. A month earlier, a story leaked about an alleged “kill list” of top Al Qeda officials to the New York Times. Both leaks appear to have come from high level officials because in both stories President Obama himself is quoted. Prosecutions were not brought in either case.

The Obama administration’s usage of the Espionage Act for leaks to journalists is unprecedented. Why the presecutions is the question that remains unanswered. Is this change due to the government adapting to a world where it is easier to leak confidential information, or is the result of of an overzealous Justice Department?

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