Who are they: whistleblowers or spies? | The US Espionage Act

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Contents:
What is the Espionage Act about?
Whistleblowers or spies?
Important to know
What is the reporting procedure in the governmental sector?

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There is no place in the world where you can safely blow the whistle: the laws on whistleblowing either don't exist or can be vaguely defined as 'complicated'. Where to go and what to say, how to keep your position and protect yourself from disclosure and retaliation?

Even in the US, the country we always mention talking about the strictest Especially complex procedures you can face if you are working in governmental services and have access to classified information.

That's how you become a spy willing to be a whistleblower — we are going to talk about a famous Espionage Act of the US. That's the very document under which numerous whistleblowers were prosecuted and because of which justice didn't come into play.

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What is the Espionage Act about?  

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The Espionage Act in the US was implemented in 1917 after WW1 to strengthen national security and prosecute American citizens for disclosing information of national importance. Mostly the Act referred to disloyalty to the state, meaning that both an attempt to discourage soldiers from their service and an attempt or completed action of giving a technology secret would be classified as a violation of the Espionage Act. An unapologetically strict law, it provided for 20 years of imprisonment or $10,000 fine ($200,000 in today's equivalent).

The Act is still interesting for us for two reasons:

  1. 100 years of history of the Act. Crimes of a different level of importance and various sources of information and leakage type fell within the scope of the Espionage Act. The Act, therefore, is one of the most controversial and restrictive on freedom of speech in history.
  2. Several whistleblowers who were convicted under the Espionage Act. We don't equate whistleblowing with espionage, but it's evident in the US that more and more whistleblowers are prosecuted. The number of whistleblowers convicted under the Act rose rapidly after the Obama presidency. Look at the number: only one whistleblower was convicted during Nixon's, Reagan's and Bush' presidency accordingly. During Obama's two terms, eight whistleblowers were convicted, and five during Trump's presidency. 

A rising number of whistleblowers worldwide shows not only the importance of the information they provide but raises a question of their safety. What is a general reason for convicting numerous people with different backgrounds under the same Act?

All of the reports revealed the information concealed by the governmental structures, and this information was crucial for public safety. Disclosed information was mostly classified, which guaranteed a sentence to whistleblowers. The exception to this rule was Thomas Drake. Drake revealed only unclassified information and the US government had to drop the charges. As a result, the whistleblower lost his job and reputation. 
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Whistleblowers or spies?

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Have a look at most recent whistleblower and what they were about:

1. Daniel Hale - "The drone papers". Daniel Hale is a former NSA (National Security Agency) security analyst, who leaked several classified and unclassified documents to the press. Journalists didn't reveal the whistleblower - all the papers are now available at Intercept under the title "The drone papers". Hale leaked the information on crimes against humanity: papers describe in details the methodology of the assassination the US is using in Somalia, Yemen and Afghanistan.

The information disclosed in the report is controversial since it covers not only internal issues of the US security program but information of public importance. Who and how is placed in the US killing list, how drone attacks are planned and what are the human costs of it - everything is reflected in "Drone Papers". And yes, Daniel Hale didn't spy for foreign governments but his case still fell within the scope of the Espionage Act.

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2. Reality Winner - "Cyber-attacks during the US elections". Reality Winner is famous for one of the strictest sentences among the violators with similar disclosures. The whistleblower got 5 years for revealing one paper with information on the direct involvement of Russia in the US elections. Winner had no chance to tell her story to the media, though, it is clear that she made her decision to disclose top secret information out of good intentions.

Winner wanted to inform the US citizens about questionable results of the elections - the government considered her leak as the one "threatening national security". The document reveals the methods used to break into voting mechanisms of the US government - there is no proof that this information threatens the security of the US. Still, Winner got the longest sentence and strictest punishment.

3. Terry Albury, "Racism in FBI". Again, leaked documents were published at Intercept - Albury disclosed the information on unethical use of informants in FBI operations. The FBI was recruiting vulnerable people from political and religious communities to spy on them and later harass them. Terry Albury provided vast pieces of information on how FBI agents find loopholes in their own statute and how they intrude in vulnerable communities.

Vague formulations in the FBI statute allowed the agents to bypass the protocol - Terry Albury, as a black person and the only black agent at the FBI field office, considered it important to report on the issue. 4 years of imprisonment is the result of his report - again, a controversial decision with no opportunity for Terry Albury to express his motivation and justify his actions. The court never considered the profile of whistleblower since this option is never available for whistleblower convicted under the Espionage Act.

Just as in Drake's case, there is no objective opinion in all of the cases. The jury had to decide between right and wrong, and it always decided in favor of the government.

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Important to know:

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  • The Espionage Act is no longer applicable in its original form. Instead, a less controversial part of the Espionage Act is now present in the 18 US Code Chapter 37 under the title "Espionage and Censorship".

  • Crimes which fall within the scope of the Espionage Act are crimes of strict liability. For whistleblowers, it means that the court can only decide on guilty/not guilty. In the case of the former whistleblowers can't get a fair trial with an explanation of the motives behind their actions.
  • Currently, there is no comprehensive legal protection for whistleblowers in the US, meaning that their identity is always under fire. The only Act whistleblowers can rely on in this sense is the updated "Whistleblower Protection Enhancement Act of 2012" which doesn't state explicitly that whistleblower's anonymous identity is protected. The Trump-Zelensky scandal exposed this problem to the fullest: even in case of the legitimate anonymous complaint which followed all of the rules of reporting higher officials may demand the identity revelation. Simply because there is no law which prohibits doing so.

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The majority of whistleblowers leaked the information directly to the press, but not all - there is a legitimate process of reporting on violations in governmental structures. Does it always work? No, and that was the primary reason for whistleblowers to report externally. Thomas Drake (2006) was one of the whistleblowers who reported to the Director of National Intelligence and Congressional intelligence first. After the mishandling of his case and delayed reaction from the investigation group, Drake leaked unclassified documents to the press: the charges against him were dropped since the documents were unclassified.

The documents revealed a mishandle of taxpayers' money on a public surveillance program worth billions of dollars. Just as Drake did, Trump-Zelensky anonymous whistleblower reported about the tape he heard where Trump was asking Zelensky to investigate corruption of Trump's political rival. First to the Inspector General, then to the Director of National Intelligence and later directly to the Congress after there was no progress in the investigation. The anonymous whistleblower didn't have to leak to the press since the Congress immediately started to investigate the matter and initiated the impeachment process.

Normally, whistleblowers only have to initiate the investigation with reporting to the Inspector General, while the Inspector is entitled to forward the materials to a higher official.

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What is the reporting procedure in the governmental sector? 

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Whistleblowers from the intelligence community are guided by The Intelligence community whistleblower protection act, which defines the procedure of reporting on violations which contain classified information.

The whistleblower first reports to the Inspector General or his/her designee. The IG decides if the complaint is credible and forwards it to the head of the intelligence unit during 14 calendar days. The head of the intelligence unit has to investigate the matter or forward it to the Director of National Intelligence in case it poses a conflict of interests.

The Director of National Intelligence may forward the complaint to Congressional Intelligence; however, a whistleblower can do the same in case all of the previous stages of the reporting process failed to give any result. 

The only way for whistleblowers to circumvent the reporting process is to leak information to the press. Nevertheless, only in cases where the information wasn't classified, the whistleblower has a chance to avoid prosecution. And it's doubtful that the whistleblower will stay anonymous as the history of the Espionage Act shows. 

The Espionage Act is largely criticized not only by ordinary citizens who sympathize with convicted whistleblowers but free media, lawyers who condemned strictness of the law and scholars who place the law among the most controversial and behind the times. What is needed is a comprehensive whistleblower protection law.

The purpose of it would be anonymity and confidentiality protection, along with guarantees of reinstatement after the report. Among the cases of questionable misconduct, where whistleblowers did well for the public but bad for the government, some whistleblowers tried to follow the procedure of reporting and faced ignorance. 

The idea to protect whistleblowers and consider their motivation as patriotic is still vivid - Protect Brave Whistleblowers Act 2020 intends to add crucial amendments to the Espionage Act. If passed, the Act would allow whistleblowers to speak in their defense and use public interest defense in justifying their actions. As for now, whistleblowers are still vulnerable and decide not to report at all rather than report to the authorities or leak to the media.

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