US - National Whistleblower Day: Time to stop prosecuting whistleblowers as spies

Edward Snowden, the US’ most famous whistleblower, is still living in exile since he revealed the National Security Agency’s extensive surveillance of American citizens. If he ever returns home, he could face at least 30 years in prison for charges he faces under the Espionage Act. Less than six months into Trump’s term, former NSA contractor Reality Winner was arrested and charged with gathering, transmitting, or losing defense information under the same Act. The government’s charges came shortly after online news outlet The Intercept published a story featuring a leaked NSA document showing Russian interference in the 2016 presidential election.

Winner’s case could be the beginning of a series of leak prosecutions to come under President Trump. Yet his predecessor famously prosecuted more whistleblowers than any previous administration combined. Today, many of them are imprisoned or living in exile for what they revealed. Chelsea Manning was sentenced to 35 years in prison for leaking information on the US’ human rights abuses during the ‘war on terror.’ Though her sentence was commuted before Obama left office, she had already twice attempted to take her own life during her seven years in detention. Jeffrey Sterling was found guilty of leaking information to The New York Times about an unsuccessful and dangerous CIA operation involving Iran’s nuclear program and was sentenced to three-and-a-half years in prison. His conviction was based on metadata from telephone and email conversations with Times reporter James Risen, but no direct evidence that he was a source was ever presented in court. Sterling’s prosecution almost resulted in Risen’s jailing for refusing to reveal his source.

Both Manning and Sterling’s prosecutions demonstrate the disproportionate sentences whistleblowers face when compared with the vital public service they provide.

“Whistleblowers who leak information of interest to the American people are being treated as if they were enemies of the state, instead of being recognized for the role they play in a healthy democracy that respects press freedom and government transparency,” says Margaux Ewen, Advocacy and Communications Director for RSF’s North America Bureau. “Leaks are the lifeblood of investigative journalism. In continuing to use the Espionage Act against whistleblowers, the US government is sending the signal that its citizens’ First Amendment rights both to report and access the news are not worth protecting when it comes to the realm of ‘national security,’ a catch-all for information the government doesn’t want revealed.”

The Espionage Act was adopted in 1917 just after the US formally entered World War I and was used to prosecute individuals who shared government secrets with enemies of the US up until the prosecution of Daniel Ellsberg in 1971. A military analyst, Ellsberg gave the New York Times a classified report on US military misconduct in Vietnam, which would later be known as the Pentagon Papers. He was the first person to be charged for releasing classified information under the Act. Though his case was eventually thrown out because the government had illegally wiretapped him, other whistleblowers have not been so lucky.

Leak prosecutions under the Espionage Act do not adequately protect whistleblowers. Defendants aren’t allowed to present a public interest defense, and prosecutors need only show that the leak could have harmed national security, but not that it actually did.

The United Nations Special Rapporteur on Freedom of Expression has called on Member States to do more to protect whistleblowers under the right to access information embodied in Article 19 of both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The United States is clearly not fulfilling this obligation.

On National Whistleblower Day, it’s time that the country of the First Amendment start celebrating the role whistleblowers play in maintaining our democracy instead of labeling them traitors and locking them up for years at a time.

The United States ranks 43rd out of 180 countries in RSF’s 2017 World Press Freedom Index.