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Why Are We Still Using the Espionage Act?

No matter where you stand on the arrest of NSA contractor Reality Winner, the outdated law is unjust.
NSA contractor Reality Winner

NSA contractor Reality Winner

The Trump administration has taken it’s first step in retaliating against leakers, showing that the President’s tirades on twitter are more than just rhetorical threats. Charges have been brought under the Espionage Act against a 25 year-old NSA contractor for allegedly providing a news outlet with a classified document. Reality Leigh Winner could be the source of a five page NSA report published by The Intercept showing Russian hacking efforts just days before the US election.

The official version of events reads like this: According to the FBI Affidavit, Winner admitted to printing the top secret intelligence report, removing it from the facility where she works in Georgia, and then mailing it to a media organization. The government claims that what led them to Winner was the news outlet itself. Allegedly, a reporter emailed a scan of the document to verify it’s authenticity and in turn government officials saw that the file contained a crease, leading them to believe that the original was a physical copy which had been printed. The government also says the news outlet had emailed the document to a second contractor, disclosing that it had been mailed from Augusta, Georgia. Eventually, the trail led them to Winner.

Much reporting on this story is highlighting Winner’s poor op-sec (operational security), and questioning The Intercept’s handling of the document. The news organization has released a brief statement saying that their source was anonymous and urging caution in believing the official line, writing that “it is important to keep in mind that these documents contain unproven assertions and speculation designed to serve the government’s agenda and as such warrant skepticism. Winner faces allegations that have not been proven. The same is true of the FBI’s claims about how it came to arrest Winner.”

The notion of innocent until proven guilty is often forgotten, especially when related to national security, hence the danger of using the Espionage Act. The law was written during World War I to go after spies, but President Obama used it more times than any other administration in history to pursue whistleblowers, sources, and even journalists themselves. Trevor Timm, the executive director of the Freedom of the Press Foundation, has long advocated for its reform, told The Daily Banter that “in recent Espionage Act cases, sources have been barred by judges from telling the jury about their motive, from arguing their leaks did not harm national security, and from discussing the benefits of their leaks.” He warns that, “in a society that is supposed to appreciate the concept of 'fair trials', this is a travesty.”

A case like Winner’s will take us through a predictable process we’ve grown accustomed to thanks to the Obama administration’s pursuit of Chelsea Manning and Edward Snowden and the overwhelming growth of the security state. The public will debate whether Winner is a patriot or traitor, the damage or lack thereof done to national security, and if getting a security clearance is too easy. The NSA will take yet another hit on it’s ability to keep information secure, and Winner’s social media posts and political leanings will be scrutinized. The only person we won't hear from, if tried under the Espionage Act, is Winner herself. 

The current political environment may work in Winner’s favor given the animosity towards the Trump administration. Calling the President an “orange fascist” online doesn’t seem unusual these days, depending which social bubble one exists in. Whereas during the Obama administration’s unprecedented war on leakers many on the left were relatively silent or tepid in their response, concern over the the Trump White House attempting to discredit the media and threatening a free press has been more pronounced.

Encouragement and access to leaking is also at high point. Most news organizations have some kind of secure system for anonymous submissions, and some are openly advocating for dirt on the Trump/Russia scandal. Just yesterday, Michael Moore announced a new website called Trumpileaks urging people to share information “in the name of protecting the United States from tyranny”. Let’s hope this appetite for transparency extends to the legal system and momentum builds for Espionage Act reform. No matter where you stand on Trump or details of a specific leak, fair trials are something every American should support.