ANOTHER ALLEGED WHISTLEBLOWER has been charged with espionage. This week on Intercepted: Donald Trump is set to shatter Barack Obama’s record of prosecuting journalistic sources under the 1917 Espionage Act.
— May. 15The Intercept
Freedom of the Press Foundation’s Trevor Timm, organizer Bill Fletcher Jr., and Dr. Krystal Redman are this week’s podcast guests.
“The Invisible Man” (1933): He’s invisible. That’s what’s the matter with him. If he gets the rest of them clothes off, we’ll never catch him in a thousand years.
Donald J. Trump: There was nobody that was in the history of our country more transparent than me. There has never been anybody so transparent.
“The Invisible Man” (1933): Help! Help! He’s here. It’s the Invisible Man.
DJT: I was transparent. I was totally transparent. But I’ve been the most transparent president in history.
“The Invisible Man” (1933): He’s here. The Invisible Man!
DJT: I can’t imagine being more transparent. There has never been a president that’s been more transparent than me or the Trump administration. I have been the most transparent president in the history of our country by far.
Jeremy Scahill: This is Intercepted.
JS: I’m Jeremy Scahill, coming to you from the offices of The Intercept in New York City. And this is episode 93 of Intercepted.
Mark Ruffalo [reading Eugene Debs’ speech]: For in every age it has been the tyrant, the oppressor and the exploiter who has wrapped himself in the cloak of patriotism or religion or both to deceive and overawe the people.
JS: On June 16, 1918, the prominent Socialist labor leader Eugene Debs delivered a speech in Canton, Ohio. In the speech, Debs argued against U.S. involvement in World War I and he praised activists who had been organizing against the military draft or had been convicted of sedition. At the time, Debs was one of the most prominent socialists in the United States and his speech came on the heels of the Russian Revolution and the rise of global socialist and communist movements. Eugene Debs had run for president four times as of the day of that speech. Here is actor Mark Ruffalo reading part of that speech.
MR [reading Eugene Debs’ speech]: The working class who fight all the battles, the working calls who make the supreme sacrifices, the working class who freely shed their blood and furnish their corpses had never yet had a voice in either declaring war or making peace. It is the ruling class that invariably does both. They alone declare war and they alone make peace. Yours not to reason why. Yours but to do and die. That is their motto.
JS: Soon after that speech, Eugene Debs was arrested and he was charged under a new law in the U.S. that had passed just a year earlier. It was called The Espionage Act. Debs and his lawyers argued that his anti-war speech was protected by the First Amendment to the Constitution. And they lost. And Debs was sentenced to ten years in prison. The case eventually went to the U.S. Supreme Court where the justices voted unanimously to uphold the conviction of Eugene Debs. “I believe in free speech, in war as well as in peace,” Debs told the jury during his trial. “If the Espionage Law stands, then the Constitution of the United States is dead.”
From his prison cell, Debs ran for a 5th time for president of the United States on the Socialist Party ticket. He got nearly a million votes, almost three and a half percent — the most ever won by a Socialist at that time. In 1921, President Warren Harding commuted Eugene Debs sentence, but he did not pardon him. Though he did invite Debs to meet him at the White House.
Congress ultimately amended parts of the Espionage Act, but the thrust of the law has remained in effect to this day. Anarchist Emma Goldman was also prosecuted under the act. Julius and Ethel Rosenberg were executed after being convicted under the law.
Newscaster: One of the greatest peace-time spy dramas in the nation’s history reaches its climax as Julius Rosenberg and Morton Sobell, convicted of revealing atomic secrets to the Russians, entered a federal building in New York to hear their doom. Another of the spy ring, Mrs. Ethel Rosenberg, who with her husband was convicted of actually transmitting the secrets to Russia through Soviet diplomatic channels.
JS: Throughout its history, the Espionage Act has been used as a weapon to attack free speech and dissent. And then decades later came the Pentagon Papers case where the U.S. government charged the whistleblower Daniel Ellsberg under the Espionage Act. He faced 115 years in prison.
Daniel Ellsberg: How can you measure the jeopardy that I’m in whether it’s 10 years, 20 years, 115 years, rather ludicrous amounts like that to the penalty that has been paid already by 50,000 American families here and hundreds of thousands of Vietnamese families. It would be absolutely presumptuous of me to pity myself in that context and I certainly don’t and I’d be ashamed of myself.
JS: The charges were all dismissed in 1973, mostly because of rampant misconduct and illegal surveillance by the Nixon administration. But it was this model, developed by Nixon’s Justice Department that would be passionately adopted decades later as the weapon of choice of President Barack Obama to wage attacks on journalistic sources and journalism.
Barack Obama: Since I’ve been in office, my attitude has been zero tolerance for these kinds of leaks and speculation.
JS: Obama’s Justice Department indicted eight journalistic sources under the Espionage Act, more than all U.S. presidents before him combined. Among these cases was U.S. Army whistleblower Chelsea Manning, former CIA officer Jeffrey Sterling, National Security Agency whistleblower Thomas Drake, and NSA whistleblower Edward Snowden. In some of these cases, people were sentenced to lengthy prison terms. In others, the government ruined the lives of the targets.
DJT: We’re going to find the leakers. We’re going to find the leakers. They’re going to pay a big price for leaking.
JS: Then Donald Trump takes power and immediately begins using the playbook refined and sharpened by his predecessor, President Obama. Donald Trump is now surpassing Obama’s eight year record in just over two years in office. The first case Trump brought was against Reality Winner, who was accused of leaking a top secret document to a news organization. That NSA document related to alleged Russian intelligence operations aimed at breaching software systems used in some U.S. voting systems. Then FBI agent Terry Allbury was indicted for allegedly leaking information about FBI surveillance and informant operations to a news organization.
The government did not name the news organization in these cases, but other media outlets attributed the reporting to The Intercept. And then, last week, came the arrest of another alleged whistleblower, Daniel Everett Hale. The Justice Department is accusing Hale of leaking documents on the global assassination program and drone programs run by the Obama administration. This indictment also does not name a news organization but Trump administration officials — in leaks to news organizations — have claimed that it’s The Intercept.
I want to be clear here: Nothing I say here should be understood as discussing the specifics of the Hale case. And The Intercept does not discuss alleged confidential sources whoever they are. But I do want to state the following: Whoever provided documents for The Intercept’s reporting on U.S. assassination operations should be viewed as a hero who did a major public service at immense personal risk. This whistleblower provided the most detailed account ever published of what amounts to a secret legal system wherein the president of the United States and his advisors make lists of people to kill, including U.S. citizens who have not been charged with crimes.
The documents published by The Intercept showed that at times as many as 9 out of 10 people that the U.S. killed in its so-called targeted assassinations were not the intended target. These documents revealed how the watchlisting system has spiraled out of control and how U.S. citizens have no right to know if or why they are on watch lists or kill lists. This was an extremely important and brave moment in the history of the post-9/11 secrecy and mass killing operations and the fight against them. Back in 2015, I discussed this on Democracy Now!.
JS [on Democracy Now!]: Our source is an incredibly principled brave individual and you know, I worry because the government is, this government has been relentless in its pursuit of people of conscience who blow the whistle and has characterized them as traitors and spies and in the process has criminalized the ability to do independent journalism that is meant to hold them accountable, the government accountable without fear that your sources, or in some cases the journalists themselves are going to be put in the cross hairs of the so-called justice system.
JS: We are at an extremely dangerous moment in the history of this country. Donald Trump is using the same rhetoric used by Nazi officials in the 1930s and 40s to attack the press. He has said that he wants to jail journalists who publish stories he doesn’t like. And he is wielding the Espionage Act like a chainsaw against journalistic sources. What makes it all so much worse is that it was the Constitutional law scholar and Trump predecessor Barack Obama who teed Trump up, who laid the groundwork, who blazed the trail for this extremely deranged and dangerous man currently occupying 1600 Pennsylvania Avenue.
But look at the way these stories are covered in the broader media. With a few notable exceptions, the lack of solidarity or just basic understanding of how dangerous these cases are is just largely absent. Instead there are attacks on the news organizations or the reporters. And for all of the talk of how dangerous Trump is to a free press, why hasn’t the Reality Winner case been covered more extensively? Why is a CNN reporter who lost his credentials a national scandal and threatening alleged whistleblowers with 50 years in prison is a non-story? My colleague James Risen knows a lot about the Espionage Act. When he was a reporter at the New York Times, he fought the Bush and Obama administrations for some 7 odd years when they tried to force Jim to testify against an alleged source of his being prosecuted under the Espionage Act. Last week, Jim Risen discussed how many media organizations are covering these cases when he talked to Amy Goodman on Democracy Now!
James Risen [on Democracy Now!]: It’s as if they’re joining in with the Justice Department and the prosecutor in hunting down a bank robber or something. And so I think that’s a fundamental flaw in the way the press covers these things is that they look at it as a crime rather than as an attack by the Justice Department on the press in the United States which is what this is.
JS: Daniel Everett Hale is facing a half a century in prison for his alleged crime of blowing the whistle on a secret assassination program that regularly resulted in the killing of civilians, including an American teenager. None of this is about espionage. And it should be clear to every journalist in this country, to every person of conscience that what this prosecution is about is threatening anyone who even thinks of leaking, say, a Trump tax return. This is about criminalizing journalism. It is about increasing the secrecy and decreasing the transparency. It is an assault on the very idea of a democratic society. At these moments, silence is complicity. Everyone should care about what happened to Reality Winner and what’s happening again to Chelsea Manning and what has happened to Edward Snowden and, yes, Julian Assange. And we should all care what happens to Daniel Everett Hale.
This is a precedent setting moment, not just legally, but morally. Because this is not the end. This is the beginning and they will eventually come for other news organizations. Or they will scare news outlets from doing high stakes national security reporting. It doesn’t matter what you think of any of these individual whistleblowers. It doesn’t matter what you think of The Intercept. But it does matter that we all recognize that this is an attack on our basic rights to information about what the U.S. government does in our names and with our tax dollars. It matters that people who blow the whistle on crimes and war crimes be defended and not abandoned or portrayed as violent criminals or traitors. All of us must ask ourselves where we stand. History will remember our answers.
Trevor Timm, Executive Director of the Freedom of the Press Foundation, Talks About the Weaponization of the Espionage Act
JS: Joining me now is Trevor Timm. He is the executive director of the Freedom of the Press Foundation. Trevor, welcome to Intercepted.
Trevor Timm: Thanks for having me.
JS: Let’s just start, your general thoughts about the latest indictment, the indictment of Daniel Everett Hale.
TT: Well, first of all, this is the seventh prosecution of a source of a journalist in just a little over two years in the Trump administration. The Trump administration right now, is on pace to shatter the Obama administration’s records for prosecution of journalists’ sources. This is a huge threat to press freedom. Even if journalists themselves aren’t getting prosecuted, this creates a massive chilling effect across the government bureaucracy when journalism in many cases has never been more important in holding our government to account. The fact that the Trump administration is targeting sources who have allegedly provided journalists with really important documents and stories that have been cited dozens of times by other news organizations, which have forced both the Obama and Trump administration to be more transparent about issues of foreign policy and national security.
The American public should be quite disturbed that they are taking it to this level and you can almost guarantee that this is not the last leak investigation or the last leak indictment. The Trump administration has talked about how they have dozens of other cases opened and virtually every major news organization in this country likely has sources that are under investigation now and it’s possible that surveillance is being done on both the sources and the journalists. And this has far-reaching implications for press freedom in the United States. And I think it should worry everybody.
JS: The charges against Daniel Hale could bring up to 50 years in prison.
TT: Yeah, the Espionage Act is this Draconian statute from literally World War I. So, it’s over a hundred years old. It was originally passed by Congress to go after spies and saboteurs.
Newscaster: The Wilson administration under criticism as soft on pro-Germans, seeks and gets tough new laws suppressing freedom of speech and opinion.
TT: And yet in the past few decades has been morphed and warped into this statute that ends up going after the sources of journalists. It was never used for this purpose in its first 50 or 60 years. In fact, the first Espionage Act case was Pentagon Papers whistleblower Daniel Ellsberg who faced over 100 years in jail.
Reporter: The latest indictment says, 115-year prison term and a $120,000 fine, the maximum. Are your thoughts still the same that you’re willing to accept any consequences?
DE: I have two thoughts about that. I go back to my earlier answer. How can you measure the jeopardy that I’m in whether it’s 10 years, 20 years, 115 years, rather ludicrous —
TT: But it’s really just been in the past decade or so, which it started with the Bush administration then expanded to the Obama administration and now is really being used as a regular weapon by the Trump administration to go after whistleblowers who come forward to the press. The real disturbing aspect of this law is that it virtually offers no defenses to the alleged sources who are prosecuted.
JS: What do you mean by that?
TT: If you are a source and bring something to a journalist, maybe you think it is showing government corruption or illegality and the U.S. government considers it classified, it may be your only option to go to the press to get some accountability. Yet, when these sources go to trial they’re not allowed to talk about the public benefits to these leaks. They’re not allowed to argue that actually, this leak did not harm national security at all and it was a huge benefit for the public to know this information. They aren’t allowed to talk about their motives for leaking. So you can imagine a whistleblower going to a journalist because they feel the American public wants to know this information. That is far far different than a government official selling information to a foreign adversary for profit yet these things are treated one in the same by the Justice Department. There’s a famous story of Daniel Ellsberg when he gets on the stand during the Pentagon papers case, you know him and his lawyer had prepared for months to tell the jury exactly why he came forward with the Pentagon Papers and all the lies he had been seeing from the Nixon and Johnson administration.
DE: Nixon is trying to throw the book at us. He continues to lie. The three areas in which he’s lying today, this very day: Number one, he says the war is winding down. He says he hasn’t bombed the dikes. That’s a blatant lie. The Vietnamese dikes have been bombed.
TT: And his lawyer asked why did you do this? The prosecution objects. The judge quickly sustains the objection and Daniel Ellsberg is sitting there speechless thinking I’m not allowed to tell the jury why I did this and so, this is what has happened with every leak case since. These sources and whistleblowers are not allowed to tell their story to the jury. The only thing that matters is did you have access to information and did you give it to a journalist? And if that’s the case, you face decades in jail for some of these charges. And so, it’s impossible for these people to get a fair trial. So, what happens is now almost all of these cases in the Trump administration end in plea deals because they basically have their hands tied behind their back. And so this process keeps repeating over and over again where the Trump administration can bring more and more of these cases.
JS: One pattern that I’ve noticed emerging is that there is virtual silence from many important news organizations on these prosecutions. When Chelsea Manning was put on trial in front of a military court, The New York Times and CNN basically had to be shamed into coming to cover the trial by independent journalists like Alexa O’Brien, Kevin Gosztola, other people who were covering it. And The New York Times was one of the major publishers of Chelsea Manning’s leaks through all phases of it: the diplomatic cables, the war logs, etcetera, and they had to sort of be shamed into even covering her trial. And then you have these cases where Reality Winner or Terry Albury or now Daniel Hale and you have this lionization of the Pentagon papers leak now, but those same publications who are happy to engage in the kind of historical celebration of their bravery seem to be completely missing what I think clearly is an absolute assault on journalistic sources and ultimately, journalism.
TT: You’re exactly right and it’s infuriating and depressing, both the same time. Press freedom, in some cases, this is a good thing, has been in the public eye more than ever in the last two years because Trump is constantly going out there disparaging journalists and talking about how they’re the enemy of the people. And while you know taking Trump’s tweets and statements all together is a bit alarming this has much more dire consequences for journalists than anything Trump can tweet. He is using the awesome power of the Justice Department to go after journalists sources, to get their communications, in some cases, directly spy on journalists, and it gets barely a mention from a lot of journalists who often claim to care about these issues of press freedom.
JS: It’s so transparent and clear that with William Barr as attorney general, the Trump administration has a strategy now that seems aimed at blocking any attempt to leak about this administration. They don’t want his tax returns leaked. They want nothing leaked. So, they dig up this case, they dig up from five years ago and clearly the Obama administration had decided not to prosecute it. It’s not even that they care so much about what let’s say, Daniel Hale did specifically, it does seem to be a weaponization of the Justice Department and these prosecutions aimed at stopping anyone else from leaking because hey, we’re going to throw the book at you. You get 50 years in prison if you leak about Trump.
TT: Right, exactly. I mean, you really only have to listen to what Trump says. I mean, you know, everybody is furious when Trump starts tweeting about journalists as enemy of the people. But look what he says around that. He talks about how he is furious with leakers. The FBI and [the] Justice Department have figured out that they can use technology to basically track everything that every government employee does. You know, we talk a lot about surveillance of the American people which is incredibly important, but the government is actually surveilling its own employees much more than anybody else.
And when you know, you see these indictments and how they are able to track somebody’s every move, what they looked at, what they printed, cameras following them around. It’s quite scary, especially when we’re dealing with a president as unhinged as Trump. You know, we want journalists talking to these people and journalists are talking to them all the time. So the idea that we should just you know, kind of poo-poo these indictments and use them to kind of take shots at the news organizations or journalists who are involved in them, it’s just quite depressing because you know, we’re not seeing the forest and the trees here. This is a direct attack on press freedom. We should be up in arms about it.
JS: You read the indictment of Daniel Hale, I assume?
JS: Seventeen-page indictment. There have been media organizations that have reported that I am the reporter in question. And that The Intercept is the publication in question. And of course, we’re not going to make any comment whatsoever about anything specific regarding this case and it’s our general policy to not talk about any confidential or anonymous sources, but based on what the government is alleging in the indictment, what was it exactly that Daniel Hale did or that the government is accusing him of having leaked? What kinds of documents?
TT: So it looks like from the indictment that they are accusing Daniel Hale of leaking to an unnamed news organization and reporter which seems to be The Intercept.
Amy Goodman: In 2015, The Intercept published a special report called The Drone Papers exposing the inner workings of the U.S. military’s assassination program in Afghanistan, Yemen and Somalia. The publication’s findings were later turned into a book called “The Assassination Complex: Inside the Government’s Secret Drone Warfare Program.”
TT: And also the investigation into the government’s terrorist watch list, which has caused all sorts of controversy over the past 15 or 20 years since 9/11, which has led to dozens of lawsuits where the ACLU in many cases has represented people who have been wrongly put on this list, whether it’s the no-fly list or other terrorist watch lists where there is virtually no due process. Everything is kept secret and the people who are affected are kept in the absolute dark. And both of these investigations were incredibly important to understand the vast secretive national security apparatus of the United States and how it is ripping due process rights away from both Americans and people abroad. You know, nobody is arguing that this stuff shouldn’t be public and that the government isn’t over-classifying information and this isn’t information that the American public should have access to.
These are really important stories. And this is actually, this is what all national security reporters do. They uncover things that the government is doing behind closed doors the American public deserves to know about. I mean, when we think about the classification system virtually everything that the U.S. government does in both the realm of foreign policy and national security, they consider secret. They consider classified and so they can use this Espionage Act as a weapon to wield. Then there’s a leak that they don’t like, they can go after that source, and then they can feel free to leak information that they so choose that is also considered classified to basically shape the narrative for how people see what the U.S. government is doing. And it’s you know, not only just grossly unfair and even un-American to the sources that are affected but it really negatively affects, you know, the hundreds of millions of people in the American public who have no idea what their government is doing.
JS: You know, I also think it’s important to remind people how powerful leakers or powerful people who are sloppy with their “operational security” are treated. I’m thinking specifically of General David Petraeus who as far as we know was showing sensitive and classified material to someone he was having an affair with and, you know, he got off with barely even a slap on the on the wrist and it hasn’t affected his livelihood. Hillary Clinton had a private email server where she had thousands of emails, some of which the government said should have been classified. Nothing, nothing ever happens as a result of that criminally, whatsoever. And then you have Reality Winner doing five years in prison for allegedly leaking one piece of paper about the 2016 elections and attempts by the Russian GRU to probe or cyberattack software systems being used in some states for elections. You have Daniel Hale facing half a century in prison for allegedly blowing the whistle on a global assassination program that existed with a parallel justice system where the president decided who could be killed or who lived on any given day. But that juxtaposition between official leakers, powerful people who do this kind of stuff and then whistleblowers of conscience.
TT: Well, that’s why these cases are such a total farce. I mean, think back to the Obama administration. They were claiming up until the very end that large portions of the drone strike program were totally classified, that they would barely talk about it on the record —
JS: Obama’s first mention was joking that he was going to send a drone to kill one of the Jonas Brothers if they came near his daughters.
BO: Boys, don’t get any ideas. I have two words for you: predator drones. You will never see it coming.
TT: Right, they can joke about it but then when there’s a lawsuit against them, they claim it’s a state secret. Yet we read dozens and dozens of articles at the time about the drone strike program, which a lot of that information, the Obama administration wanted out and so they leaked it to the New York Times. They leaked it to the Washington Post or the Wall Street Journal. These classified leaks are in the newspaper all the time. Same thing goes in the Trump administration. There are hundreds and hundreds of stories in every single major paper that contain classified information. At the same time, it is both incredibly important that newspapers can report on this stuff but it allows the government to essentially use the Espionage Act as this weapon as they see fit. They will let the leaks go that they want out there and then they will attack and prosecute the leakers who leaked things that they didn’t want leak, that puts them in a bad light, that shows how they may be potentially killing civilians or engaging in illegal profiling. You can go on and on down the list.
JS: What can ordinary people do and what should journalists be doing in response to the weaponization of the Espionage Act and this assault on journalistic sources in journalism?
TT: As we’ve seen over the past two years, journalists in some cases have brought this issue of press freedom to the front pages of newspapers. Unfortunately, it has largely been about Trump’s rhetoric which again, can be dangerous especially when you take it all together when seeing that he for months and months and months, every day attacking journalists. Yet, you know, we have to understand that this is just rhetoric at the same time. These actions that he is pressuring the Justice Department to take in again, in his public tweets, he is talking about how the Justice Department needs to go after leakers. So we know he wants this. But the second thing the public can do more broadly is talk about the Espionage Act with your member of Congress.
So far, even though we have known that this has been a huge issue for 10 years now virtually no member of Congress is willing to go after the Espionage Act partly because it’s called the Espionage Act. They don’t want to touch it with a ten-foot pole. But this law is being used against sources of journalists far more than its being used against actual spies and it is in dire need of reform or repeal. So if there are a brave member or two of Congress out there who can introduce a law that actually separates out the actual spies from these patriotic whistleblowers who are coming forward to inform the American people, it is of dire importance. Because if it keeps going this way, you know, you can imagine a situation as the government surveillance capabilities keep growing that it may be virtually impossible for any journalist to talk to a source without them being immediately outed.
JS: What are some organizations that people could contribute to that support whistleblowers and the defense of whistleblowers?
TT: Well, I’m a little biased but I would encourage everybody to check out Freedom of the Press Foundation where I’m executive director. Our URL is freedom.press. We work on these issues day-to-day. We build technology for journalists to communicate more securely with sources. So, for example Secure Drop which is our whistleblower submission system that we have helped over 70 news organizations install and is in use all the time even here at The Intercept. We also give digital security trainings to journalists so that they can have the tools that they need to figure out how they can communicate more closely with journalists. Because when you look at all these indictments, you can see that the government can paint this incredibly detailed picture of everything a government employee does because they have so many avenues to surveil them.
So, it’s more important than ever. There are several other organizations that support whistleblowers that I would encourage everybody to check out. There’s a new one called The Signal Networks, actually, that is looking to not only provide advocacy for whistleblowers, but actually the personal support that they need whether it’s legal support, financial support or mental health support. You have to understand that even when these people don’t go to jail, you know, there are dozens of investigations that don’t go to indictment but these people often are bankrupted by legal fees. They are blacklisted from jobs and their lives can be ruined even if they don’t go to jail because the government decided to target them for the crime of informing the American public about an important issue.
JS: Trevor Timm, thanks so much for being with us.
TT: Thanks for having me.
JS: Trevor Timm is executive director of the Freedom of the Press Foundation. I should note that FPF has at times received funding from our parent company First Look Media. You can find Trevor on twitter at Trevor Timm. That has two “M’s.”