Congress Has Lost All Perspective When It Considers Prosecuting Journalists As Spies

Free Speech

from the who's-the-real-enemy-of-the-state? dept

We’ve noted the unfortunate fact that President Obama has used the espionage act to go after whistleblowers, rather than actual spies. Similarly, we’ve been quite concerned that people have tried to paint organizations like Wikileaks as being criminal operations or guilty of violating the Espionage Act as well. While there may be many reasons to not like Wikileaks or Julian Assange, that does not mean that they’re guilty of criminal activities in publishing classified information they obtain. That’s what lots of reporters do.

And, in fact, as the EFF is warning, some in Congress are now turning their sights on reporters at the NY Times for daring to publish newsworthy material, dug up through traditional reporting means. In other words, the gradual expansion of the definitions here is putting reporters at risk. Already we expanded the definition of espionage to cover whistleblowers… and now they’re trying to expand it to the press who report on the information leaked by whistleblowers.

At a House Judiciary subcommittee hearing on July 11th, some members of Congress made it clear they also want New York Times journalists charged under the Espionage Act for their recent stories on President Obama’s ‘Kill List’ and secret US cyberattacks against Iran. During the hearing, House Republicans “pressed legal experts Wednesday on whether it was possible to prosecute reporters for publishing classified information,” according to the Los Angeles Times.

In addition, the Washingtonian’s Shane Harris reported a month ago that a “senior” Justice Department official “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”

Leaks big and small have been happening for decades—even centuries—and the most recent are comparable to several others. No journalist has ever been prosecuted under the Espionage Act and it has generally been accepted, even by Congress’s own research arm, that the publication of government secrets by the press is protected speech under the First Amendment. Yet the government is actively investigating WikiLeaks and now threatening others for just that.

It’s hard not to be offended by the disdain for the Constitution displayed by these politicians. Even if no one actually goes through with a prosecution against a journalist, the chilling effects have already made their mark. Reporters are likely to think twice now about publishing that big scoop, exposing questionable government behavior, because those within the government seem to think that actually revealing troubling facts about the government is akin to being a spy.

Filed Under: espionage act, free speech, journalism

If You're Going To Leak Classified Info About The White House, It Better Make Them Look Good

Free Speech

from the vindictive-administration dept

We’ve noted the unfortunate trend of the Obama administration vindictively going after any whistleblowers (despite one of Obama’s first moves in office being to encourage whistleblowing). To date, the Obama administration has been involved in six prosecutions of whistleblowers using the Espionage Act… twice as many such uses of all other Presidents combined. But, here’s the thing. We just wrote about the NYTimes reporting that the US was behind Stuxnet, and that President Obama himself was deeply engaged in the project.

As people have noted, that level of “leak” seems to go way beyond what many of those charged under the Espionage Act did (including other leaks to the NY Times). And yet, as Gawker discovered, unlike with some of those other stories, the White House did not try to prevent the publication of this info, and almost certainly gave its tacit approval to the publication.

So, what’s the difference? Well, the prosecutions against whistleblowers, and the attempts to stifle the reports based on them, all seem to focus on cases where the White House looks bad — domestic spying, torture, etc. The Stuxnet story was a success story. Even though the malware eventually leaked out into the world and was exposed, the “damage” was already done. This leak actually lets the White House claim credit and look good.

A year and a half ago, we wrote about Daniel Ellsberg (the guy who leaked The Pentagon Papers to the NY Times a few decades back) talking about his personal theory as to why Obama was so vindictive against leaks, despite an outward persona (and specific statements) that totally contradicted the position. His belief was that Obama was so vindictive about whistleblowing, because all of those whistleblowing cases revealed things that were embarrassing to the President. The fact that the White House doesn’t seem to have a problem with this particular leak of classified info — one that more or less makes them look good — certainly adds significant weight to that theory.

Filed Under: daniel ellsberg, espionage act, obama, pentagon papers, whistleblower, white house

Once Again, The Administration Vindictively Charges A Whistleblower As Being A Spy

Free Speech

from the scary-stuff dept

This is getting ridiculous. When President Obama was campaigning and even when he first took office, he claimed that it was a priority to support whistleblowing activities. And yet, as President, he has been ridiculously aggressive in pushing vindictive criminal lawsuits against whistleblowers — often by abusing the Espionage Act. The Espionage Act is supposed to be used against spies. But the Obama Justice Department has used it over and over again against whistleblowers in a purely vindictive manner. In fact, he’s used it to bring charges against whistleblowers more often than every other President combined. This strategy turned out to be a disaster in the Thomas Drake case (which was initiated by President Bush, but continued with strong support by President Obama), where the case completely collapsed, once it became clear that the charges were nothing but a vindictive attack on a whistleblower.

Apparently the Obama administration has not learned its lesson. It has now used the Espionage Act to go after a former CIA agent, John Kiriakou, who blew the whistle on the CIA’s waterboarding torture regime. This now makes it the sixth Espionage Act prosecution of a whistleblower brought by the Obama administration. All other presidents before him used it a total of 3 times. As the Government Accountability Project notes, the really stunning thing in all of this is that Kiriakou will be the only person prosecuted in relation to the use of waterboarding — and simply for blowing the whistle on it.

if you torture a prisoner, you will not be held criminally liable, but if you blow the whistle on torture, you risk criminal prosecution under the Espionage Act.

Something seems very, very wrong about this.

Filed Under: doj, espionage act, obama, torture, whistleblowing

Justice Department Trying To Figure Out How To Twist US Laws To Charge Julian Assange

Free Speech

from the um,-wow dept

Yesterday, we noted that the Obama administration was considering legal action against Julian Assange of Wikileaks for the release of various government documents. The latest on that front is that the Justice Department is wasting valuable resources scouring the legal books to see if it can come up with some sort of ridiculous justification for charging Assange with violating the Espionage Act. It’s difficult to think of a more ridiculous and simply petty response from the feds.

First of all, Assange is not an American and not in the US. Charging him in absentia is basically a meaningless (and childish) gesture against someone it doesn’t like. Furthermore, as the Justice Department must know (it does know this, right?), the Espionage Act is generally viewed as outdated in light of more modern case law on the First Amendment. The feds’ loss in the Pentagon Papers case should make them realize what an amazing waste of taxpayer money it would be to go after Assange.

But, more to the point, such a response wouldn’t do anything to help the situation. Getting rid of Assange won’t stop the release of this kind of information. It will just mean that the next such release will come from more distributed sources. The US government’s focus on Assange and Wikileaks as an organization suggests that it doesn’t realize what it’s actually dealing with. The fact that it’s reacting this way, rather than addressing the issues raised by the leaks, suggests that it thinks these types of leaks aren’t inevitable. It’s wrong. It’s shooting the messenger, rather than realizing that the message is pretty important.

Filed Under: espionage act, free speech, julian assange, obama administration
Companies: wikileaks