When will courts realize that leaks are vital to the American public?

May 24, 2016

WikiLeaks whistleblower Chelsea Manning filed her long-awaited appeal to a 35-year jail sentence last week, and her case brings up an important question for journalists: When will courts finally rule the Espionage Act unconstitutional for leakers and whistleblowers? 

Manning, who admitted to leaking thousands of classified Pentagon documents and State Department cables to WikiLeaks in 2010, was convicted for something that happens on a smaller scale every day in Washington: handing journalists classified information. Yet as the ACLU pointed out in its excellent legal brief bolstering her defense: Before Manning, “no person in the history of this nation had been sentenced to decades in prison for the crime of disclosing truthful information to the public and press.”

Thanks to Manning, the wealth of information the public now has on how its government operates is almost incalculable. Hundreds of newspaper stories have been written using the documents Manning leaked—years later, the cables are still regularly cited in stories about breaking news around the world. For example, just this week, the Intercept used some of the State Department cables in its widely read feature on Hillary Clinton’s role in advocating for fracking during her time as Secretary of State.

Despite the harsh jail sentence, no one can point to any significant damage caused by the leaks. Even government officials admitted in court that they don’t know of a single person to have died as a result, despite claiming at the time of publication that WikiLeaks had “blood on its hands.”

And that gets to the crux of the problem: During the trial, Manning wasn’t allowed to tell the court of the benefits her leaks produced, nor was she allowed to challenge the charge that they did damage to national security. She wasn’t even allowed to explain her motivations for informing the American public—rather than, say, selling secrets to foreign governments for profit. In a pre-trial ruling, the judge in her case said this evidence was inadmissible because of the absurdly broad language of the Espionage Act.

Unfortunately, lower courts in other leak cases have largely come to the same conclusion. The Espionage Act is written so broadly that prosecutors merely have to prove a government official transmitted “national defense information” to a person “unauthorized” to see it. The motives, good or ill, and the circumstances, even if the information shows abuse or illegality, do not matter. And because appeals for such cases are incredibly expensive for defendants, an appeals court hasn’t ruled on the issue in decades, let alone the Supreme Court.

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This breathtakingly sweeping and draconian law, coupled with a lack of public interest defense, are antithetical to the Constitution, and it violates the First Amendment. It’s possible, though, that the Manning case will finally bring this injustice to the public’s attention.

If there’s one thing everyone should read on the matter, it’s the ACLU’s brief that forcefully and convincingly describes how leaks are not only extraordinarily pervasive in our democracy, but vital to its health. Yet because the government is allowed to pick and choose who to prosecute—the law effectively turns into a weapon to control speech.

You can go down the list of past journalism prize winners and find it littered with now-famous stories based on classified leaks—from the secret and illegal bombing of Cambodia and Laos and CIA crimes from the 1970s all the way up to secret CIA prisons, NSA warrantless wiretapping, and drone strikes of modern times. Would the public really be better off if they never found out about these crimes and violations of the Constitution?

But those investigations are not an aberration: Stories based on classified leaks fill the news all the time. Just this Sunday, both The New York Times and The Washington Post ran prominent stories that likely contained Top Secret information about a Taliban leader allegedly killed by a drone strike (Top Secret is a higher classification than anything Chelsea Manning leaked). It’s right there in black and white: “Pakistan was not informed of the strike beforehand, said a senior American official, who spoke on condition of anonymity to discuss confidential operational details,” the Times reported Sunday. You can find similar information in The Washington Post: “[O]ne U.S. official said Mansour and a second male combatant accompanying him in a vehicle were probably killed,” the Post reported. “President Barack Obama authorized the attack, which occurred on the Pakistani side of the border, and was briefed before and after it was carried out, a White House aide said. Both officials spoke on condition of anonymity and were not authorized to discuss the operation publicly.”

While this particular drone strike was conducted by the military and not the CIA, drone strikes have, for years, been de facto classified by the US government at the highest levels, despite the fact that they regularly show up on the front pages of newspapers. (It should be noted, though, that the president confirmed yesterday the Taliban leader was killed while managing to never say the word “drone”). The CIA, meanwhile, continues to fight in court so that it won’t have to turn over the most basic details about its drone program’s existence.

No investigation will be made into who leaked this information to the Post and the Times ahead of time, because it’s information that furthers the government’s favored narrative. Only, if we were to read the letter of the law as the government interprets it, these officials broke the Espionage Act, just as Chelsea Manning did.

As former Washington bureau chief of The New York Times, Max Frankel, once wrote in the Pentagon Papers case: “Without the use of ‘secrets’…there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington, and there could be no mature system of communication between the Government and the people.” Over the past 45 years, Frankel’s wise words have only grown in their significance.

We can only hope courts will one day recognize what newspapers long have: Leaks are vital to democracy, and whistleblowers should not be going to jail for decades for telling the truth to the American public.

Trevor Timm is the executive director of Freedom of the Press Foundation, a non-profit organization that supports and defends journalism dedicated to transparency and accountability. He is also a twice-weekly columnist for the Guardian, where he writes about privacy, national security, and the media.