Behind the US Espionage Act

June 6, 2019
WikiLeaks founder, Julian Assange.

WikiLeaks founder Julian Assange faces 17 counts of violating the United States Espionage Act, for publishing material given to him by former US soldier Chelsea Manning.

The material included documents that exposed US war crimes and other material about Washington’s wars against Afghanistan and Iraq, which the military wanted to keep secret from the public.

The Espionage Act was passed in 1917 as the US entered the First World War. A product of wartime hysteria, it was first used against the Socialist Party (SP) and against anarchists and the anarcho-syndicalists of the Industrial Workers of the World, who opposed the war.

Many were charged and convicted under the act, the most famous case being that of Eugene Debs, who gave a strong antiwar speech in Canton, Ohio, in June 1918, in which he also praised the Russian Revolution.

Debs ran for president on the SP ticket (over the objections of the party’s right wing) from jail in the 1920 elections.

The Espionage Act was used in the “Red Scare” of 1919–20. The US ruling class was terrified by the Russian Revolution, and used any and every law and excuse to round up radicals. Communist and anarchist organisations were targeted. Thousands of European migrants were swept up in raids and deported.

The act was not used much after that time, until 1945, when the US Federal Bureau of Investigation (FBI) raided the offices of the pro-Communist journal, Amerasia.

The journal had obtained hundreds of “secret” US intelligence and State Department documents and had been running articles based on them. The editors and their government sources were arrested and charged under the act, indicating how it would later be used, including in the Manning-Assange case.

At the time, a Grand Jury refused to indict, because there was no evidence the defendants had passed any document to a foreign power — the common definition of “espionage”.

An anti-communist witch-hunt began two years later and mushroomed into what became known as McCarthyism (named after its architect, Republican Senator Joseph McCarthy). Congress passed several amendments to the act, including making it applicable to any person who learned of classified information and passed it on to any other person.

In 1971, government intelligence employees Daniel Ellsberg and Anthony Russo copied and sent a secret Defense Department report to the New York Times. The report contained a 7000-page history of US foreign policy in Vietnam, Cambodia and Laos from 1945 to 1967.

The Richard Nixon administration arrested and brought Ellsberg and Russo to trial under the Espionage Act, and tried to indict the NYT for publishing articles based on the Pentagon Papers, as the report came to be known.

The anti-war movement was riding high by 1971. The release of the Pentagon Papers was a bombshell, as it exposed all the US dirty dealings, crimes and lies from the Vietnamese war of resistance against the French in 1945 through to the US war on Vietnam.

The indictment of Ellsberg and Russo was the first time the Espionage Act was used against people for providing information to journalists. The attempted indictment of the NYT was the first time it was used to try to censor a newspaper.

The anti-war political mood in the population resulted in the charges against Ellsberg and Russo being thrown out of court. In the NYT case, the Supreme Court ruled against Nixon for the same reason.

In 1981, Ronald Reagan’s administration threatened to prosecute author James Bamford under the Act. Bamford was writing a book about the National Security Agency, using a Justice Department report he had legally obtained under Freedom of Information.

The report detailed a Justice Department investigation into possible criminal activity by the NSA. The NSA claimed the Justice Department report was classified, even though it had been made public, and ordered Bamford to hand it over.

Bamford was threatened with prosecution if he published the book, but he published it anyway. The prosecution never materialised.

In 1984, Samuel Morison, an intelligence analyst, sent British magazine Jane’s Defense Weekly copies of satellite photos of a new Soviet aircraft carrier. He was arrested and convicted under the Espionage Act, the first time a source was convicted under the act.

Morison appealed, arguing the act should not apply to someone who leaked to the press and not a foreign government. The court rejected that argument in an opinion that laid the foundation for the current use of the act against news organisations’ sources.

He then appealed to the Supreme Court, which declined to rule on the case, so the lower court’s ruling was upheld and applies today.

Morison was pardoned by former president Bill Clinton in 2001.

Under former president Barack Obama and President Donald Trump, use of the Espionage Act has been accelerated.

Shami Leibowitz, an FBI linguist, was charged for leaking information to blogger Richard Silverstein about the agency’s illegal wiretapping of the Israeli embassy. He took a plea deal in 2009 and was sentenced to 20 months in prison.

In 2005, senior NSA executive Thomas Drake provided unclassified documents to Siobhan Gorman, a reporter for the Baltimore Sun. Gorman used them for an article about how the NSA spent hundreds of millions of dollars on a spying program that infringed on Americans’ privacy.

A Department of Justice investigation revealed that Drake was Gorman’s source. In 2010 he was indicted under the Espionage Act. He was never accused of providing classified information to Gorman, since he did not. Instead, he was accused of taking a few classified documents home.

In pre-trial hearings the prosecution argued it did not matter why Drake took the documents home or whether by doing so he actually did any harm.

The judge ruled that Drake could not claim in his defense that he was acting in the public interest in providing Gorman with the documents. That ruling has been used ever since against whistleblowers.

Just before Drake’s trial in June 2011, The New Yorker magazine and the 60 Minutes TV show highlighted the travesty of the case against him. The Justice Department then dropped all charges in exchange for Drake pleading guilty to a misdemeanor.

Chelsea Manning was accused under the act of giving the classified Afghan War Logs and the Iraq War Logs to WikiLeaks in 2010, which published them. She was tried before a military judge, and sentenced to 35 years in an army stockade. Shortly before leaving office, Obama commuted her sentence to time served, and she was released in May 2017.

State Department contractor Stephen Kim was accused of leaking information about North Korea’s nuclear program to Fox News reporter James Rosen in 2005. After fighting the case for years, Kim took a plea deal in 2014 and was sentenced to 13 months in prison.

Former CIA agent Jeffrey Sterling was accused of leaking information about the CIA’s botched attempts to disrupt Iran’s nuclear program in 2005. In 2011, as Obama ramped up his war on leakers, Sterling was indicted under the Espionage Act, and convicted in 2015. He was sentenced to three-and-a-half years in prison.

Former CIA agent John Kiriakou was accused of giving the name of an undercover CIA agent to a freelance reporter in 2009. Kiriakou, who had previously spoken out about the CIA’s torture at Guantanamo Bay, said he thought the agent was retired and no longer undercover. Although the reporter never published the information, Kiriakou took a plea deal. The Espionage Act charges were dropped, but he pleaded guilty under a different law, and was sentenced to 30 months in 2013.

Former CIA agent Donald Sachtleben was accused of confirming information about a foiled “terrorist plot” in Yemen to the Associated Press (AP) in 2012. The Department of Justice secretly seized two months’ worth of AP reporters’ work, mobile and home phone records, which showed Sachtleben was the source. He pleaded guilty of violating the Espionage Act in 2013.

In 2012 Edward Snowden became the most famous person accused under the Espionage Act under Obama. The world knows about his revelations of the NSA’s huge collection of phone and email data. Snowden was forced to seek asylum in Russia, as he knows he cannot get a fair trial in the US since he would be barred from claiming what he did was in the public interest.

Continuing Obama’s drive, Trump has declared he is going after all “leakers” and wants to jail journalists who publish them.

In June 2017, NSA contractor Reality Winner sent a classified document to The Intercept about alleged Russian attempts to hack employees of a voting machine company. Hours after the news organisation published an article on the document, Winner was arrested and charged under the Espionage Act.

Now, Trump has charged Julian Assange and WikiLeaks under the act, the first time it has been used against a journalist and a news publisher. Even the NYT has denounced this as an attack on the freedom of the press in an editorial.

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