The press and the law

The Obama administration has cracked down hard on national security leaks to the press over the past four years, dusting off the almost 100-year-old Espionage Act to pursue prosecutions against leakers in seven cases, twice the number of any other presidency combined.

At the end of last month, Bradley Manning became the first successful Espionage Act conviction under the Obama administration. Manning was WikiLeaks' source for some 700,000 diplomatic cables and battlefield reports, the largest single leak of secret information in US history. Edward Snowden, who leaked several secret National Security Agency surveillance programs to the press, is the latest leaker to be charged under the act.

Signed into law in 1917, the Espionage Act criminalizes the transmission of defense information, which could cause injury to the US or give advantage to a foreign nation, to unauthorized people. According to Stephen I. Vladeck, an expert on national security law, the language of the act makes no distinction between old-fashioned espionage by foreign spies and whistle-blowing government abuse to the press.

"For better or worse, the Espionage Act is the American statute that best fits the crime of wrongfully disclosing national security information to someone who's not entitled to receive it," Vladeck told DW via email.

"Whether we'd call it leaking, whistle-blowing, or classic espionage, the statute treats all three as the same offense - and so the government understandably gravitates toward it in any case where it can," he said.

Origins in First World War

Drafted in the context of the First World War, the Espionage Act was first presented to Congress just two days after President Wilson formally announced the severance of diplomatic relations with Imperial Germany on February 3, 1917.

Wilson's attorney general, Thomas Watt Gregory, had originally proposed tightening federal statutes against foreign plotters two years earlier - in reaction to growing concern about German sabotage activities on US soil.

During the summer of 1915, explosives had repeatedly been detonated in munitions dumps along the Atlantic coast and in ships carrying war materials from US ports to the Allies in Europe. That September, police arrested two German men - Robert Fay and Walter Scholz - after they were caught buying explosive materials in New York City and testing bombs in the New Jersey woods. Ultimately, Fay and five others were indicted for trying to blow up vessels carrying war materials to Europe.

Although Berlin denied any connection to the plot, Fay claimed to be an agent working for the German Kaiser. He was ultimately sentenced to eight years in prison. That same year, a former Austro-Hungarian consular official, Dr. Josef Goricar, claimed that the Central Powers had at least 3,000 spies operating across the US.

The Espionage Act built on a 1911 statute, called the Defense Secrets Act, which prohibited certain types of information gathering around military installations and the transmission of such information to people not entitled to receive it. An early draft of the Espionage Act also included press censorship provisions. But the sections targeting the media ultimately failed in the Senate by a one-vote margin.

"The Espionage Act, when it was first drafted...had a draconian press censorship provision in it that was since removed, but it has always been a concern," Beatrice Edwards, director of the Government Accountability Project, told DW.

Reporting during wartime

Specifically, the 1917 Espionage Act forbids the unauthorized retention and transmission of information "connected to the national defense" that could cause "injury to the US" or provide "advantage to a foreign power." These provisions have been used to prosecute not only foreign spies, but also the press on several occasions for leaking defense secrets.

In 1942, the Chicago Tribune published a front page article on the naval battle at Midway, called "Navy Had Word of Jap Plan to Strike at Sea." According to the Tribune, the US navy knew of the strength and position of the Japanese fleet prior to the battle. The article went on to give a precise description of the Japanese forces, including the names of specific ships. The article implicitly revealed to the public that Washington had broken Tokyo's naval codes.

Washington pursued a case against the Tribune under the Espionage Act for the unauthorized transmission of defense information, but ultimately abandoned its case against the Chicago daily, unwilling to reveal even more classified information to a jury in order to prove the allegations.

Three decades later, the Nixon administration sought to prosecute Daniel Ellsberg and Anthony Russo under the Espionage Act for leaking the Pentagon Papers to the New York Times. The Pentagon Papers were a secret history of the Vietnam War. Ultimately, the case ended in a mistrial in 1973, because two government employees had broken into the office of Ellsberg's psychiatrist looking for evidence.

The first conviction under the Espionage Act for a national security leak to the press came a decade later. Samuel Loring Morison worked part time as a civilian analyst at the Naval Intelligence Support Center in Maryland and part time for the publication Jane's Defense Weekly. When Morison left naval intelligence to work full time at Jane's in 1984, he passed along three classified photos of a nuclear-powered Soviet aircraft carrier, taken by a US satellite. He was convicted under the Espionage Act in 1985 and sentenced to two years in prison.

Obama's crackdown on leaks

Up until the Obama administration, the Espionage Act had been used a total of three times to prosecute national security leaks to the press. Currently, seven cases have been brought against government employees who have leaked national security information to the press.

Beatrice Edwards' organization, the Government Accountability Project (GAP), represents Thomas Drake, a former NSA employee who was prosecuted under the Espionage Act. Drake exposed a wasteful NSA surveillance program to the Baltimore Sun newspaper in 2005.

Edwards said that leakers like Drake view their actions as a form of civil disobedience protected by both the First Amendment and the Fourth Amendment of the US Constitution. The former protects free speech, and the latter defends against unreasonable search and seizure.

Free speech and government employees

But according to national security law expert Vladeck, leakers have few First Amendment protections in their capacities as government employees.

"Although the First Amendment might protect third parties from being prosecuted for receiving such information (or retransmitting it to others), government employees have minimal First Amendment protections with regard to speech they undertake as government employees, and so there's little cover for such leakers under the First Amendment," Vladeck wrote via email.

Internal channels are supposed to exist for government employees to report waste, fraud and abuse. But according to Edwards, the Defense Department and NSA have violated the confidentially of whistleblowers, "who were then subjected to vicious years-long reprisal."

"The evidence is from Edward Snowden, who said as much, that he was aware of what happened to whistleblowers when they use internal channels," Edwards said.

Last week President Obama said that under Presidential Policy Directive 19, national security whistleblowers had received additional protections.

"The protection provisions under his presidential policy directive are not yet implemented, they are not yet enforceable," Edwards said. "So they are there on paper, but Edward Snowden - for example - could not have used them to protect himself."