Almost a year after the Trump administration unsealed an indictment against WikiLeaks founder Julian Assange, two progressive members of Congress are trying to prevent a World War I-era secrecy law from being used to investigate and prosecute journalists for publishing classified information.
The legislation to amend the 1917 Espionage Act was introduced by Oregon Democratic Sen. Ron Wyden in the Senate and California Democratic Rep. Ro Khanna in the House of Representatives. Wyden and Khanna told The Intercept they crafted the legislation to preserve the government’s need for secrecy while strengthening protections for members of the press and expanding legal channels for government whistleblowers.
“When I think about espionage, I’m thinking about somebody like Aldrich Ames,” Wyden said in an interview, referring to the CIA officer who passed secrets to the KGB before his arrest in 1994. “What my bill does is refocus the Espionage Act to the core issue, which is ensuring that the more than four million government employees and contractors with a security clearance don’t violate their oaths by divulging government secrets.”
The Espionage Act makes it a crime to for anyone to share secrets “relating to the national defense” with people who are not authorized to hear them. The statute makes no exception for members of the press who obtain and report classified information, but there is broad agreement among legal scholars that prosecuting a journalist for unearthing and publishing government secrets would violate the First Amendment.
The Wyden-Khanna bill would narrow the scope of the law to primarily target offenders with current or expired security clearances, as well as any agents of a foreign government to whom they may pass information. Members of the press or the public could be prosecuted if they committed a separate crime in the course of obtaining the information, but not for soliciting information or for “speech activity” like publishing.
Journalists “shouldn’t be prosecuted simply for getting information from a source or transmitting that information,” Khanna said in an interview. Hackers who break the law to get secret information should be prosecuted, he said, but to prosecute those who obtain such information legally would be tantamount to “criminalizing speech.”
The bill also removes the broadest language in the Espionage Act, which allows anyone to be charged for “conspiring” with leakers. Press freedom advocates have long worried that that part of the act could be abused by overzealous prosecutors to criminalize standard journalistic practices such as asking for information.
In April 2019, the government unsealed an indictment against Assange charging him with one count under the Computer Fraud and Abuse Act. The indictment alleged that as part of his relationship with former U.S. Army Pfc. Chelsea Manning, he had offered to help crack a password on a Defense Department computer system. Around that time, Manning transmitted documents to Assange that WikiLeaks would later publish: case files of men detained at Guantanamo Bay and documents revealing torture and civilian deaths in Iraq and Afghanistan. The bulk-release tactics of the transparency platform would later attract widespread criticism for exposing the identities of U.S. government informants and collaborators and putting them in danger.
A month after the Trump administration’s first indictment, prosecutors added 17 criminal counts under the Espionage Act, which involved Assange soliciting the classified material from Manning. The indictment included three counts of having “communicated … documents” by publishing them on the internet.
“This is the first time the government, to my knowledge, has charged anyone with the pure communication of information under the Espionage Act, and that is very concerning,” said Kathleen Ruane, senior legislative counsel with the American Civil Liberties Union. “That’s pure communication of information. That’s reporting.”
Khanna told The Intercept that the new bill wouldn’t stop the prosecution of Assange for his alleged role in hacking a government computer system, but would make it impossible for the government to use the Espionage Act to charge anyone solely for publishing classified information.
But while the bill creates protections for publishers, it doesn’t address a key complaint of press freedom and civil liberties advocates: that over the past decade, the Espionage Act has served as the government’s weapon of choice to punish unauthorized press leaks.
Instead, the bill expands carve-outs that allow security clearance holders to more freely communicate as whistleblowers with members of Congress, inspectors general, and other government regulatory bodies that oversee technology and privacy. The Espionage Act includes language suggesting that classified information can only be sent to Congress “by lawful demand” of a congressional committee; the new measure would allow clearance holders to provide information to any member of Congress without a specific request or demand.
“Americans who learn about waste, fraud, and abuse, even if it’s classified, ought to be able to go to any member of Congress with that information,” Wyden said. “I just think that’s the proper way to proceed.”
Throughout the 20th century, it was extremely rare for the government to bring criminal cases against those accused of sharing government secrets with journalists. That changed under the George W. Bush and Obama administrations. Obama’s Justice Department famously brought more Espionage Act cases against whistleblowers than all previous administrations combined.
Donald Trump has continued the practice, using the Espionage Act to prosecute government employees and contractors for allegedly sharing information about Russian hacking into U.S. state election infrastructure, leaking information about the U.S. drone program, and other sensitive topics.
Khanna told The Intercept that revealing classified information should still be a crime for those with clearances, but that prosecutors and judges should have discretion to weigh the consequences of the leak against the motives of the source.
“I don’t think we can have a situation where people who have security clearances can simply leak information in violation of their oath and their responsibility,” Khanna said. “That could put lives in danger in many cases.”
Alex Abdo, the litigation director at the Knight Institute at Columbia University, told The Intercept that the bill was a “crucial effort” to ensure national security journalists are protected while doing their jobs.
“These protections for journalists are vital,” Abdo said in an email. “It is also vital that Congress enact additional protections for national-security whistleblowers, who risk personal and professional sanction to expose government malfeasance and corruption.”