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January 31, 2021 FEATURED ARTICLE

Gabbard’s Espionage Act Reform Bill Highlights U.S. Government’s Recent Responses to National Security Whistleblowers

by Jadyn Marks

On September 30, 2020, Representative Tulsi Gabbard introduced H.R. 8452, an Act that would allow defendants in Espionage Act cases to discuss intent in their defense and add a defense of disclosure in the public interest. This proposed legislation sheds light on recent U.S. government responses to whistleblower activities, including efforts to extradite Julian Assange and a court ruling to obtain royalties on Edward Snowden’s book.

Espionage Act prosecutions fell into disuse prior to the Obama administration, but the former President reinvigorated the legal action.

Espionage Act prosecutions fell into disuse prior to the Obama administration, but the former President reinvigorated the legal action.

The United States government is seeking to extradite Julian Assange, so he may face charges under the Espionage Act. As the founder of WikiLeaks, a “multi-national media news organization and associated library” which “specializes in the analysis and publication of large datasets of censored or otherwise restricted official materials involving war, spying and corruption,” Assange is facing 17 charges under the Espionage Act.

Espionage Act prosecutions fell into disuse prior to the Obama administration, but the former President reinvigorated the legal action, prosecuting eight alleged whistleblowers under the Act. 

The Espionage Act was not significantly utilized prior to the Obama administration in part because it arguably violates the notions of free speech our country is founded on. The Espionage Act of 1917 criminalizes the conveyance of information with the intention to interfere with the United States’ prosecution of the war or to benefit a foreign nation. The Sedition Act of 1918, which expanded the scope of the Espionage Act to include public statements, was repealed two years later and is now largely viewed as antithetical to First Amendment rights.

Because Assange is not a U.S. citizen, nor currently in the U.S., he is not protected by the First Amendment, according to Secretary of State Mike Pompeo

Procedurally, prosecution under the Espionage Act is problematic due to the nature of evidence related to national security matters and the elements required to prove unlawful disclosure of classified information. Relevant evidence may be considered classified, and thus concealed from the defendant, making a fair trial inaccessible. As applied to the disclosure of classified information, the Act is problematic because it disregards intent, a typical element required for conviction of many criminal offenses. As such, it does not protect whistleblowers who provide journalists with information in order to expose illegal government actions, rather than to aid foreign countries in injuring the United States. Because national security is at issue, the standard is low.

The practical implications of Assange being successfully extradited to the United States for his alleged crimes are worrisome at the least. Permitting this action sets a dangerous precedent for whistleblowers all over the world to answer for their alleged crimes in the U.S, despite U.S. First Amendment protections and the protections individuals may have in their respective countries. Equally notable is the difficulty to distinguish between Assange’s actions and those of journalists, driving further First Amendment concerns.

On January 4, 2021, a British judge at the Central Criminal Court in London provided a further hurdle for Assange’s extradition, ruling that he may not be extradited because he would be at an extreme risk of suicide. The court notably rejected the defense that the charges were politically motivated and attacked freedom of the press.

In other whistleblower news, the U.S. District Court for the Eastern District of Virginia ruled that the U.S. government is entitled to over $5.2 million in book royalties from “Permanent Record,” whistleblower Edward Snowden’s book. Snowden was initially sued over the book in 2019, when the government alleged he had violated non-disclosure agreements. 

Interestingly, the government did not seek to prevent publication of the book via an injunction, only to seize assets of the book. This calls into question the U.S. government’s true concerns. If the purpose of prosecuting Snowden under the Espionage Act is national security concerns, one would think that publishing a book that violates non-disclosure agreements he signed while with the NSA and the CIA would similarly give rise to national security concerns. So why, in a related civil suit, would the government not seek a permanent injunction to prevent further disclosure of national security? Perhaps the government is more concerned about punishing Snowden for his actions in other ways than prosecution since he is currently in asylum in Russia.

Rep. Gabbard attempts to address the unique problems with Espionage Act prosecution in her proposed legislation. H.R. 8452’s allowance of evidence of intent and a public interest defense would help Assange’s case significantly. Further, Rep. Gabbard introduced H.Res. 1162, a bipartisan resolution which calls for Snowden’s charges to be dropped.

H.R. 8452 was referred to the House Committee on the Judiciary on September 30, 2020. H.Res. 1162 was referred both to the House Committee on the Judiciary and the Committee on Intelligence on the same date. Only time will tell whether these pieces of legislation succeed in expanding protections for whistleblowers in the U.S.

Jadyn Marks

Second-year law student, The George Washington University Law School

Jadyn Marks is a second-year law student at The George Washington University Law School. She is a member of the Federal Communications Law Journal and the Promissory Notes, the law school's a cappella group.