"The Espionage Act Gets An Instant Makeover" by Matt Taibbi
"A law reviled by liberalism ten minutes ago is now Savior to All."
I am re-blogging Matt Taibbiβs excellent post as I thought it was well worth reading.
The Espionage Act Gets An Instant Makeover
A law reviled by liberalism ten minutes ago is now Savior to All
by Matt Taibbi β’ August 13, 2022
I woke this morning to find the Twitter version of a block party, over the news that Donald Trump is being investigated under the Espionage Act. A few examples:
π¨π¨ A former U.S. president is under investigation for violations of the Espionage Act. Let that sink in. π¨π¨For the warrant to cover the Espionage Act, there had to be PROBABLE CAUSE of espionage. Not just a βwhat if Trump gave classified docs to foreign agents.β There was PROOF presented to the judge β witness testimony, video footage, other documents, something. Tangible proof.The most mind-blowing of these tweets is by Reich, who should know better. If I were Trump, I absolutely would fundraise off being investigated under the Espionage Act. By pursuing him under this provision, the Justice Department just did Trump the mother of all favors, adding his name to a list of some of the most famous political martyrs in our history.
βEllsberg, Hale, Winner, Snowden, Assange, and now Trump,β a source close to Julian Assange said this morning. βIncredible.β
Maybe Reich canβt see how this will play politically, or doesnβt care, but anyone thrilled at the prospect of trying to prosecute a former president under the Espionage Act has blacked out the recent history of this law. How much does this Act suck, and shame us all? Letβs count the ways.
The Espionage Act represents the evolution of a series of laws whose purpose is/was to criminalize unauthorized use of sensitive information. I wrote this after the indictment of Assange:
The indictment stressed Assange/Manning were seeking βnational defense informationβ that could be βused to the injury of the United Statesβ¦β [This] gave off a whiff of BritainβsΒ Official Secrets Acts and AmericaβsΒ Defense Secrets Act of 1911, prohibiting βnational defenseβ information going to βthose not entitled to receive itβ¦β
These laws were written in a way that contradicted basic speech protectionsβ¦ There was a way to read the Espionage Act that criminalized what theΒ Columbia Law ReviewΒ back in 1973 (during the Pentagon Papers controversy) called the βmere retentionβ of classified material.
If you want a clear portrait of the shift in establishment thinking about this, look at the attitude of the New York Times toward its own role in the history of the Act. In 1981, on the ten year anniversary of the government charging former [U.S. military analyst] Daniel Ellsberg with violation of the Espionage Act for taking the βPentagon Papersβ to the Times for publication, the paperβs former attorney in that case, Floyd Abrams, wrote an editorial celebrating the episode. He said it βstiffened the spines of all journalists.β
Thirty years later, the Times ran a very different essay. Written by attorney Gabriel Schoenfeld and entitled βLeaking the Pentagon Papers was an Assault on Democracy,β Schoenfeld argued βMr. Ellsbergβs legacy is at best mixed,β as he was βstill a rogue actor,β who βif the fundamental ground rules of our constitutional democracy are to be respected, deserves a measure of condemnation.β
Katie Halper and I asked Ellsberg about the Act around then:
Theyβve learned to wield the Espionage Act, to criminalize whistleblowingβ¦ 9/11 comes along, and itβs βConstitution be damned.β Since then we've had total surveillance of everybody, totally unconstitutionallyβ¦ Weβre not a police state, but we could be a police state almost from one day to the nextβ¦ They know where we are, they know our names, they know from our iPhones if weβre on our way to the grocery store or notβ¦ We could be East Germany in weeks, in a month.
The general public not long ago had sympathy for revealers of secrets like Edward Snowden, who disclosed the county had been the subject of an illegal mass surveillance program. They also had growing contempt for a security apparatus that awarded itself virtually unlimited power via pseudo-laws like the PATRIOT Act, the Office of Legal Counsel secret memo supposedly legalizing drone assassination even of Americans, and the Bush-era memo with the amazing Orwellian name, βHumane Treatment of Taliban and al Qaeda Detainees,β that unilaterally exempted the U.S. from Geneva convention prohibitions against torture.
When CIA whistleblower John Kiriakou revealed details about the program, what law was used to charge him? The Espionage Act. What βespionageβ did he commit? Did he sell secrets to Russia, China, al-Qaeda? No. He talked to American journalists, including a network TV pair named Matthew Cole and Richard Esposito (remember those names).
Even as the government defined talking to American reporters as espionage, and even as Kiriakou went to jail for two years (the only CIA person ever to be jailed in connection with the torture program), the press backed the concept. βIt took my lawyers a year to get CNN and MSNBC to stop calling me CIA-leaker John Kiriakou and to start calling me CIA-whistleblower,β he said.
Barack Obama was one of the most enthusiastic deployers of the Espionage Act, using it at least eight times to bring charges against people not for βespionage,β but for talking to the press. The list included Thomas Drake, Shamai Leibowitz, Stephen Kim, Chelsea Manning, Donald Sachtleben, and Jeffrey Sterling, plus Kiriakou and Snowden. The AP wrote how the Obama administration βobtained the records of 20 Associated Press office phone lines and reportersβ home and cell phones,β while they also:
Secretly dogged Fox News journalist James Rosen, getting his phone records, tracking his arrivals and departures at the State Department through his security-badge use, obtaining a search warrant to see his personal emailsβ¦
Establishment attitudes toward βwhistleblowingβ shifted with Trumpβs election. Director Laura Poitras, won an Oscar in 2015 for her documentary about Snowden, CitizenFour. Glenn Greenwald, the reporter with whom Snowden collaborated, won the Pulitzer Prize. Yet when Trump got elected, a new type of βwhistleblowingβ became common. High-level leaks about issues like the Trump-Russia investigation, seemingly all coming from senior intelligence officials or congressional sources, were an almost weekly occurrence, and none were prosecuted.
One that didnβt go unpunished involved NSA contractor Reality Winner, sentenced to five years under, you guessed it, the Espionage Act. What was different about her case? She wasnβt a former CIA director or a DNI, just an ordinary person. βItβs about low-hanging fruit,β Titus Nichols, Winnerβs attorney, told me at the time.
Winnerβs case came after a 2017 story in the Intercept entitled, βTop Secret NSA report details Russian hacking effort days before election.β They called it the βmost detailed U.S. government account of Russian interference in the election that has yet come to light.β
The affidavit attached to Winnerβs indictment charges her with having first βimproperlyβ removed βnational defense information,β then having βunlawfullyβ transmitted it βto an online news outlet.β The lead reporters on the Intercept story, by a remarkable coincidence β like a remarkably remarkable coincidence β were Matthew Cole and Richard Esposito.
A military analyst named Daniel Hale couldnβt take being a drone assassin, disclosed details about his work, and got 45 months under the Espionage Act for his trouble. At sentencing he insisted his real crime was his work for the Air Force. βI am here because I stole something that was never mine to take β precious human life,β he said.
The case against the onetime liberal hero Julian Assange boils down to one half-assed charge of allegedly agreeing to help (but never following through) source Chelsea Manning crack a hash to protect her identity, wrapped around 17 insane charges under the Espionage Act. I wrote at the time his indictment was βthe work of attorneys who probably thought the Sedition Act was good law.β A list of the charges:
Count 1: Conspiracy to Receive National Defense Information. Counts 2-4: Obtaining National Defense Information. Counts 5-8: Obtaining National Defense Information. And so on. The indictment is an insane tautology. It charges Assange with conspiracy to obtain secrets for the purpose of obtaining them. It lists the following βoffenseβ:
βTo obtain documents, writings, and notes connected with the national defense, for the purpose of obtaining information respecting the national defenseβ¦β
The Espionage Act is an embarrassment that would make Marcos or Suharto squeamish, but itβs of course not completely impossible thereβs an actual espionage offense in Trumpβs case somewhere (just as obviously, no evidence of this has been produced). Julius and Ethel Rosenberg were tried under the Act for giving bomb secrets to the Soviets, as Michael Beschloss and Michael Hayden just helpfully reminded us. However, in modern times, the Espionage Act is more associated with talking to the Times, ABC, The Guardian and The Intercept than with actual spying. The defendants are more often conscience-stricken heroes like Hale than villains.
Thatβs the problem with this law. βInformation relating to the national defenseβ can essentially be anything the government decides, and they can put you in jail a long time for βmishandlingβ it, which in Assangeβs case included merely having it. Trump or no Trump, if you think thatβs okay, youβre an asshole. Itβs totally un-American, which is why Robert Reich shouldnβt be surprised if Donald Trump acts proud of being investigated for it. This law is more infamous than he is, and everyone but a handful of blue checks can see it.