The media has focused a great deal of attention on the Espionage Act in recent weeks. This is largely due to the fact it was cited by the warrant that led to the FBI raid on Trump’s residence at Mar-a-Lago. But while this may be the Espionage Act’s most notable role to-date, it isn’t likely the most concerning.
As many reports have noted, the real problem with the Espionage Act is that agencies have repeatedly used it to silence journalists and whistleblowers. Despite Trump’s attorney’s claims, the Espionage Act has not been ignored for a “hundred years.” And it’s true purpose, in practice, has not been to prosecute “true espionage.”
The Espionage Act and whistleblowers
By now, most Americans recognize that the government and country are not “all good.” There is an astonishing amount of disagreement over the parts that are not good, but most people recognize that we live in a nation of ideals and of practices that don’t always live up to those ideals.
That’s why we’ve seen:
- The government illegally wiretap civilians
- The military run illegal black ops missions abroad with little or no oversight
- The illegal waterboarding of prisoners
- Assassinations conducted by drones
- Secret projects that fail and cost taxpayers hundreds of millions or billions of dollars
Notably, these are all things that we know about only because whistleblowers reported them. By reporting these abuses, whistleblowers have helped to end them. Their reports have prompted new laws and government policies. They have helped force the government to adhere more closely to our nation’s ideals.
Unfortunately, many of the whistleblowers who reported on these particular topics also found themselves facing criminal charges. In fact, more people faced charges under the Espionage Act during the Obama and Trump administrations than during all previous administrations combined. But there is some good news: Many of those who took their cases to trial saw some or all the charges dismissed.
Why doesn’t the public’s interest matter?
Despite the fact that some of the whistleblowers managed to get charges dropped, there is one key problem with the Espionage Act. This is especially true when law enforcement officials leverage it against journalists and whistleblowers.
The problem? The law doesn’t differentiate between the people who sell secrets to foreign governments and those who disclose secrets in the public interest. Instead, the Espionage Act makes it illegal to keep or share secrets related to national defense. Period. It doesn’t matter why.
The good news is that lawmakers have already recognized this is a problem. They have proposed changes to the law, but it’s unclear what will become of their proposals. For now, that means whistleblowers need to be careful. They need to understand their options before they act. When it comes to materials related to national defense, they want to go through the right channels.
Protection against retaliation
The recent focus on the Espionage Act highlights how out-of-step it is with other whistleblower laws. Our nation has relied upon whistleblowers from the very beginning, and we have numerous laws designed to protect different whistleblowers from retaliatory actions.
One could very easily view pressing criminal charges against a whistleblower as a form of retaliation, but the Espionage Act currently makes this possible. Until this changes, whistleblowers want to make very sure they understand what protections they have before they act.