Opinion | I Am Guilty of Violating the Espionage Act
I am guilty of violating the Espionage Act, Title 18, U.S. Code Sections 793 and 798. If charged and convicted, I could spend the rest of my life in prison.
This is not a hypothetical. Right now, the United States government is prosecuting a publisher under the Espionage Act. The case could set a precedent that would put me and countless other journalists in danger.
I confess that I — alongside journalists at The Guardian, The Washington Post and other news organizations — reported on and published highly classified documents from the National Security Agency provided by the whistle-blower Edward Snowden, revealing the government’s global mass surveillance programs. This reporting was widely recognized as a public service.
The Espionage Act defines the unauthorized possession or publication of “national defense” or classified information as a felony. The law was originally enacted during World War I to prosecute “spies and saboteurs.” It does not allow for a public interest defense, which means a jury is barred from taking into account the difference between a whistle-blower exposing government crimes to the press, and a spy selling state secrets to a foreign government.
Before Sept. 11, 2001, the Espionage Act was rarely used in the context of journalism. The most notable exception is the case of Daniel Ellsberg, who in 1971 was charged with violating the Espionage Act for providing news organizations, including The Times, with the Pentagon Papers. The charges against Mr. Ellsberg were dropped when the illegal methods of the government’s evidence gathering — breaking into his psychiatrist’s office and warrantless wiretapping — were exposed.
All this changed after Sept. 11, when the Espionage Act became a tool of the government to selectively prosecute sources and whistle-blowers, and to intimidate journalists and news organizations seeking to publish reports that the government wanted to suppress. During Barack Obama’s presidency alone, the Justice Department prosecuted eight journalism-related Espionage Act cases against sources, more leak prosecutions than all previous administrations combined.
One of the most alarming abuses of the Espionage Act under President Obama was the case of Stephen Kim, a State Department analyst who in 2010 was indicted under the law for disclosing classified information to the Fox News journalist James Rosen. In the Justice Department’s search warrant, Mr. Rosen is described as a possible “co-conspirator.” Mr. Rosen was ultimately not charged, but tragically Mr. Kim pleaded guilty to one count of violating the Espionage Act and served 10 months in prison. (I produced a film about the case.)
Despite this escalation of prosecuting whistle-blowers and sources, the government had never crossed the line to charging journalists or publishers for receiving or releasing classified information — until last year.
That was when the Justice Department indicted Julian Assange, the founder and publisher of WikiLeaks, with 17 counts of violating the Espionage Act, on top of one earlier count of conspiring to violate the Computer Fraud and Abuse Act.
The charges against Mr. Assange date back a decade, to when WikiLeaks, in collaboration with The Guardian, The New York Times, Der Spiegel and others, published the Iraq and Afghanistan war logs, and subsequently partnered with The Guardian to publish State Department cables. The indictment describes many activities conducted by news organizations every day, including obtaining and publishing true information of public interest, communication between a publisher and a source, and using encryption tools.
I made a film about Mr. Assange and WikiLeaks called “Risk.” I filmed Mr. Assange for many years, and as the film shows, we had serious disagreements. There are many reasons to be critical of Mr. Assange, and I have not shied away from them. But we should be clear about what he is being prosecuted for and the stakes for press freedom.
WikiLeaks’ publications exposed war crimes, revealed previously undisclosed civilian deaths in American-occupied Iraq, detailed government corruption in Tunisia on the eve of the Arab Spring, and generated countless other reports that dominated the front pages of newspapers around the world throughout 2010 and 2011.
WikiLeaks was responsible for the most unvarnished reporting on American occupations and foreign policy since the start of the “war on terror,” and helped to shift the public consciousness.
None of the architects of the “war on terror,” including the C.I.A.’s torture programs, have been brought to justice. In contrast, Mr. Assange is facing a possible sentence of up to 175 years in prison.
He is detained at Belmarsh, a high-security prison in London, recently under lockdown because of a coronavirus outbreak, and fighting extradition to the United States. A British judge is expected to rule on his extradition on Jan. 4. On Wednesday, 15 members of Britain’s Parliament issued a letter to the secretary of state to meet with Mr. Assange ahead of the extradition decision, citing concerns of press freedom.
I have experienced the chilling effect of the Espionage Act. When I was in contact with Mr. Snowden, then an anonymous whistle-blower, I spoke to one of the best First Amendment lawyers in the country. His response was unnerving. He read the Espionage Act out loud and said it had never been used against a journalist, but there is always a first time. He added that I would be a good candidate because I am a documentary filmmaker without the backing of a news organization.
It is impossible to overstate the dangerous precedent Mr. Assange’s indictment under the Espionage Act and possible extradition sets: Every national security journalist who reports on classified information now faces possible Espionage Act charges. It paves the way for the United States government to indict other international journalists and publishers. And it normalizes other countries’ prosecution of journalists from the United States as spies.
To reverse this dangerous precedent, the Justice Department should immediately drop these charges and the president should pardon Mr. Assange.
Since Sept. 11, this country has witnessed an escalating criminalization of whistle-blowing and journalism. If Mr. Assange’s case is allowed to go forward, he will be the first, but not the last. If President-elect Joe Biden wants to restore the “soul of America,” he should begin with unequivocally safeguarding press freedoms under the First Amendment, and push Congress to overturn the Espionage Act.
Laura Poitras shared a Pulitzer Prize for public service with The Guardian and The Washington Post for her reporting on the N.S.A.’s mass surveillance program. She directed the film CITIZENFOUR and is a founding board member of the Freedom of the Press Foundation.
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