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Writers and Editors (RSS feed)

Espionage, whistleblowing, and a free press

Espionage and whistleblowing are two very different things.

The Part of the Espionage Act That Matters (Jan Lodal, a longtime defense and intelligence official, in a guest post on James Fallows blog, Breaking the News) "Trump’s violation of this Subparagraph (d) of the Espionage Act could not be clearer. Unlike all other crimes being considered for prosecution, Subsection (d) requires no probing of intent or consequence. It defines as criminal a clear process violation -- “failing to return” classified documents when properly asked to do so."
18 U.S. Code Chapter 37 - ESPIONAGE AND CENSORSHIP (Legal Information Institute, Cornell Law School)
What Does Julian Assange's Indictment Under the Espionage Act Mean for Journalism? (Ofer Raban, Pacific Standard, 5-28-19) Originally published in The Conversation (5-25-19) as Assange’s new indictment: Espionage and the First Amendment What goes for Assange may also go for any person who obtains or discloses classified information—even journalists.
Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press (Stephen Vladeck, Harvard Law and Policy Review, 2007, via Digital Commons) Parsing of the statutory text, and why it raises a First Amendment issue in cases like Julian Assange and Wikileaks.
Revealed: The Justice Dept's secret rules for targeting journalists with FISA court orders (Trevor Timm, Exec. Director, Freedom of the Press Foundation, 9-19-18). Read Targeting Journalists Under FISA: New Documents Reveal DOJ’s Secret Rules (Ramya Krishnan, Knight First Amendment Institute at Columbia University, 9-17-18) "For years, press advocates suspected that the government was relying on the Foreign Intelligence Surveillance Act to monitor the communications of journalists and news organizations. New documents appear to confirm that suspicion." See also Secret Rules Make It Pretty Easy for the FBI to Spy on Journalists (Cora Currier, The Intercept, 6-30-18)
We Still Stand With Daniel Hale (Defending Rights and Dissent, 3-31-21) Defending Rights & Dissent stands with Daniel Hale, a courageous whistleblower. "Hale’s crime is exposing the human rights abuses of US drone strikes, including that during a given time period nearly 90% of those killed by drone strikes were not the intended target....Whistleblowers charged under the Espionage Act have an almost impossible chance of mounting a fair defense, which is why Defending Rights & Dissent has repeatedly urged Congress to amend this draconian and antiquated law....It is outrageous that a law ostensibly designed to target spies and saboteurs is used to jail journalists’ sources and even journalists who act in the public interest to reveal official abuses of power. Hale’s case spans three administrations, including presidents from both major parties. Espionage Act abuse to prosecute whistleblowers is a bi-partisan disgrace."
Julian Assange, WikiLeaks, and the value of truth in the shadow of empire (Cody Bloomfield, Defending Rights and Dissent, 10-16-22) If extradited, Julian Assange faces up to 175 years in prison under the Espionage Act – a draconian sentence intended to deter other journalists and truthtellers from revealing the long shadow of the American empire.
What is FISA? Here Are 4 Things to Know About the Controversial Spy Law (Martin Luenendonk, Cleverism, 9-25-19) Surveillance has become a big issue in America and the world over the last two decades. Since the September 11 attacks of 2001, the US government has done its best to gather as much intelligence as it can about clandestine, foreign operations that may be a threat to national security. Surveillance, by its very definition, is highly intrusive. US citizens have the right to privacy, and this is protected by legislation.One of the most famous and controversial laws in charge of protecting such privacy is the Foreign Intelligence Surveillance Act (FISA). Set in 1978, it has over the years expanded its mandate as amendments were made to accommodate changing circumstances.
An Unbalanced Biography of the Espionage Act (Gabriel Schoenfeld, Lawfare blog, 9-29-22) Review of A Century of Repression: The Espionage Act and Freedom of the Press by Ralph Engelman and Carey Shenkman
Who are they: whistleblowers or spies? | The US Espionage Act (Sofiia Merzlikina, Ethicontrol, 2-12-20) "The Espionage Act is no longer applicable in its original form. Instead, a less controversial part of the Espionage Act is now present in the 18 US Code Chapter 37 under the title "Espionage and Censorship".
      "Crimes which fall within the scope of the Espionage Act are crimes of strict liability. For whistleblowers, it means that the court can only decide on guilty/not guilty. In the case of the former whistleblowers can't get a fair trial with an explanation of the motives behind their actions.
      "Currently, there is no comprehensive legal protection for whistleblowers in the US, meaning that their identity is always under fire. The only Act whistleblowers can rely on in this sense is the updated "Whistleblower Protection Enhancement Act of 2012" which doesn't state explicitly that whistleblower's anonymous identity is protected. The Trump-Zelensky scandal exposed this problem to the fullest: even in case of the legitimate anonymous complaint which followed all of the rules of reporting higher officials may demand the identity revelation. Simply because there is no law which prohibits doing so."

       Must reading for whistleblowers.

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