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Rashida Tlaib Is Trying to Fix the Espionage Act, but Whistleblowers Are Probably Out of Luck [1]
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Date: 2022-07-12
Photo: Stefani Reynolds / AFP via Getty Images
For more than 100 years, the Espionage Act, one of the worst laws in American history, has stayed on the books, impervious to reform. 100 years, the Espionage Act, one of the worst laws in American history, has stayed on the books, impervious to reform. A relic of World War I, when the government sought to stifle anti-war dissent, the law is so vague and yet so draconian that it has become a handy weapon for federal prosecutors to use against a wide array of targets — often individuals considered politically dangerous by mainstream America. For generations, it was used against American communists; in the 21st century, the Espionage Act has been repeatedly employed against whistleblowers who disclose embarrassing government secrets to the press. The Biden administration is now fighting to extradite Julian Assange, the WikiLeaks founder, so he can be tried under the Espionage Act, among other charges.
It’s easy to see why prosecutors love this antiquated law. Unlike other measures that might be used to prevent the disclosure of classified information, the Espionage Act carries extraordinarily heavy penalties, including life in prison. Prosecutors use the Espionage Act like a cudgel, convincing whistleblowers to plead guilty to a lesser charge, like mishandling classified information, to avoid a lengthy prison sentence. That way, prosecutors get quick convictions without going to trial. Because prosecutors find the Espionage Act such a useful tool, it is probably not going away anytime soon. It is an abuse of the legal system, but the Justice Department has no incentive to stop using it.
The occasional efforts by members of Congress to reform the Espionage Act have never gotten very far. In recent years, Sen. Ron Wyden, an Oregon Democrat, has tried, and failed, to change it; now Rep. Rashida Tlaib, a Michigan Democrat, is trying again. In an amendment to the massive 2022-23 Pentagon spending bill known as the National Defense Authorization Act, Tlaib would, among other things, allow whistleblowers charged in leak cases to defend themselves by arguing that their disclosures to the media were in the public interest. One of the worst things about the current law is that there is no way for whistleblowers to argue in court that they had a valid, even laudable reason to reveal government secrets. They are not allowed to explain that what they did was designed to help the American people know the truth about the government’s actions. A so-called public interest defense would be thrown out of court.
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[1] Url:
https://theintercept.com/2022/07/12/whistleblower-espionage-act-reform/
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