Once Reserved For Spies, Espionage Act Now Used Against Suspected Leakers
A hundred years ago this month, President Woodrow Wilson signed the Espionage Act to deal with spying against the U.S. in World War I.
Historically, the most notorious U.S. spy cases have been tried under the act, like the one against Julius and Ethel Rosenberg, who were convicted in 1951 of giving nuclear secrets to the Soviet Union and executed two years later.
But prosecutions have been relatively rare and limited almost entirely to spies — until recently. The Obama administration used the Espionage Act to prosecute suspected national security leakers and now the Trump administration is doing the same.
The act is sweeping and bars any disclosure of secrets that could harm the country's defense.
"It applies to what would be the conventional [spies], who are spying for an enemy, but it also includes individuals who leak classified information," said Mark Zaid, a Washington attorney who specializes in national security cases.
During the Obama administration, eight people were charged or convicted of leaking national security secrets under the Espionage Act — more such cases than under all previous administrations combined. The cases included Chelsea Manning, the former Army private who was recently released after serving seven years in prison, and Edward Snowden, the former National Security Agency contractor who remains in Russia but still faces charges in the U.S.
Now the Trump administration is pursuing its own case. Reality Winner, a 25-year-old government contractor, is accused of divulging an NSA document that details Russian meddling in the U.S. election.
Zaid and others say the reason for the rise in prosecutions against suspected leakers is simple — technology.
We've entered a new era with encryption apps, thumb drives and other technology that allows leakers to spread classified information in a click, he said. But there's a flip side.
"Even though it's easier now to grab these documents, it is a lot easier for the government to track the documents," said Zaid.
Winner has pleaded not guilty, though the FBI says she left a trail of bread crumbs. The bureau says the NSA document was printed at her office. An anonymous letter was postmarked in Augusta, Ga., where she lives. And she reportedly had email contact with The Intercept — the outlet that published the document.
She was arrested on June 3, just two days after the FBI was alerted to the leak. Like Snowden and Manning, she's a young, junior-level figure who had access to highly classified material.
"When I first started representing individuals suspected of leaking classified information back in the mid-'90s, the government was never able to catch any of these people," said Zaid. "They would have loved to have prosecuted them, but they couldn't. The evidence was lacking."
The Espionage Act never envisioned modern communications. Its critics call it antiquated; it was last amended more than a half-century ago.
Zaid said he believes the law should be turned into two separate statutes — one for spying and one for illegal leaking. But he thinks that if Congress was to act, it might overreach and impose highly restrictive measures that would prevent legitimate attempts to bring important information to public attention.
His book offers 30 rules to follow. He notes that employees can formally appeal to their own agency. They can go to a government inspector general or a federal court. And they can always head to that very reliable source of leaks — Congress.
"All of a sudden, what might be just four or five people knowing something could be 200 people knowing something," Kohn said. "And some of those entities leak on their own. I'm just saying this is how to protect yourself."
As an attorney, Kohn counsels against unlawful leaks and says being tech-savvy doesn't make someone safe.
"You just gotta go low-tech," he said, citing the government's extensive means for electronic tracking in investigations. "So when I say beware of your electronic footprint, beware of your electronic footprint."
Kohn looks back to the Watergate scandal and the way Washington Post reporters Bob Woodward and Carl Bernstein handled their key source, FBI official Mark Felt, better known as "Deep Throat."
"The way that Deep Throat communicated in the Nixon era," he says, "in a parking lot, orally — [that was] pretty smart."
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