When government insiders leak classified information to the media, prosecutors do not consider whether the act benefited the public interest. Should they?
When a National Security Agency whistleblower leaked a document related to Russia's cyber spying, she says she never expected that she would be charged with espionage herself. Now Reality Winner's high-profile case has resurrected a debate over prosecution of national security leakers.
"I knew it was secret," she said."But I also knew that I had pledged service to the American people. And at that point in time, it felt like they were being led astray." in June 2017, and within hours of publication, the Justice Department announced she had been charged under the Espionage Act. After more than a year in pre-trial detention, Winner pleaded guilty to the espionage charge.
But the Espionage Act went beyond spying and into territory that put it in contention with First Amendment free speech protections. When it was passed in 1917, the Espionage Act limited public dissent against the war and banned any action that interfered with the military draft effort. An amendment to the law, known as the Sedition Act of 1918, briefly barred criticism of the war effort before it was repealed.
In 1973, Daniel Ellsberg became the first civilian whistleblower the government charged with violating the Espionage Act. He had given a classified government study of U.S. involvement in the Vietnam War, known as the Pentagon Papers, to the. After it came to light that the Nixon Administration had illegally gathered evidence against Ellsberg, including a break-in at his psychiatrist's office, the government was forced to drop its case against him.
"Unless one believes that the national security establishment has a magical exemption from the dynamics that lead all other large-scale organizations to error, then whistleblowing must be available as a critical arrow in the quiver of any democracy that seeks to contain the tragic consequences that follow when national security organizations make significant errors or engage in illegality or systemic abuse," legal scholar Yochai Benkler wrote in thein 2014.
Whistleblower Thomas Drake, a former NSA senior executive, tried to go by the book when he attempted to sound the alarm about a failed project at the agency that was costing American taxpayers more than $1 billion. Drake first complained to his superiors. He then privately informed the intelligence committees on Capitol Hill. After four years of reporting through proper channels, Drake anonymously contacted areporter and became an unnamed source for her articles about mismanagement at the NSA.
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