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Whistleblowing, Injustice and the Espionage Act
By Jeffrey Sterling
I was astonished to read recently that President Donald Trump acknowledged that many believe Edward Snowden has been treated unfairly and he is looking into the matter, mulling over pardoning him. After the shock of that revelation wore off, reality set in. Mr. Trump’s administration has to date taken the reprehensible position of continuing, if not increasingly empowering the Obama administration’s unprecedented vendetta against whistleblowers by using the Espionage Act, and now we are to believe Mr. Trump’s assertion that how Snowden has been treated is something he “could” look into. What is incredible about what Mr. Trump said are his previous comments about Snowden, whom he called a “terrible traitor” and suggested that he should be executed. Now we are to believe that Mr. Trump is actually considering pardoning Snowden?
In weighing the veracity of Mr. Trump in this latest, seemingly out of nowhere move, how whistleblowers have been treated under his administration has to be considered. Under the watch of his administration, there has been an incredibly destructive open season on whistleblowers. NSA analyst Daniel Hale, NSA contractor Reality Winner, and FBI field agent Terry Albury have all been indicted under the Espionage Act for disclosing classified information, as well as Wikileaks founder Julian Assange. Winner and Albury are currently serving prison sentences and the U.S. is desperately trying to have Assange extradited to face trial here in the United States. This is just the tip of the iceberg; Mr. Trump has shown a propensity for outright vengeance against anyone whom he may feel disloyal to his presidency, whether the Espionage Act is used or not.
Considering his struggles to provide leadership in this time of the COVID-19 pandemic and reprehensible fanning the flames of racial injustice and making no attempt to bring the country together during this crisis, it makes sense that Mr. Trump is going to reach for whatever poll booster he can find. This feels to me more like political maneuvering. If Mr. Trump is serious, then he will also take a look at all the other brave whistleblowers who have been treated unfairly by his and Obama’s administration. Edward Snowden should be pardoned and allowed to return home, Reality Winner and Terry Albury should not be in prison for telling the truth, and Julian Assange should not be locked up in the UK fighting extradition. These individuals and so many more have been treated unfairly and Mr. Trump could go a long way in adding some legitimacy to his presidency by doing more than looking into these cases, he should and must reverse the illegitimate witch hunt against whistleblowers, particularly those who have faced the incredible fight of being charged with violating the Espionage Act. I wish I could find some modicum of trust to believe Mr. Trump is sincere. Considering the atmosphere of his administration, I have to fall back on my Missouri motto, “you have to show me.”
The move by Mr. Trump calls into question the presidential candidacy of Joe Biden and whether, if he succeeds in defeating Mr. Trump, he will continue the perverse use of the Espionage Act that was started under the Obama administration (where he served as vice president) and continued under the Trump administration, or will Mr. Biden take a different stance. I certainly intend to take the opportunity, and I hope others will as well, to call Biden on his record on whistleblowers, particularly as to how it was while he was vice president. I think there can be a real danger that Mr. Biden will do as Mr. Trump has done, continue the Obama and Trump travesty of using the Espionage Act to persecute whistleblowers.
Vice-presidential candidate Kamala Harris has a promising history with regard to protecting whistleblowers, as recently detailed by the National Law Review. However, none of those efforts indicate whether she will be willing to be part of an administration, much as Mr. Biden was when he was vice president, so eager to use the Espionage Act as a hammer against whistleblowers. I commend Ms. Harris on her acknowledgment of the value of whistleblowers, but she also should be accountable for whistleblower protections which are disturbingly absent when it comes to so-called matters of national security.
Determining how a Biden-Harris presidency will impact whistleblowers and its position on the use of the Espionage Act against them may seem like a trivial policy point, but when you consider how it has and is being used, it becomes a very important question to ask. In the most immediate sense, the travesty of a prosecution and imprisonment I suffered through is a prime example of how damaging an Espionage Act persecution can be not only for an individual life, but also for our system of justice.
In the broader sense, just take a look at the U.S. efforts to extradite Julian Assange to face charges of violating the Espionage Act for what he divulged in Wikileaks. I feel personally connected to that travesty as it was during my trial that the government was able to get an appellate victory that answered once and for all that the government can go after sources and reporters alike for violating the Espionage Act. If the U.S. is successful, there will be no one immune to being persecuted under the Espionage Act, anywhere in the world. A free press throughout the world is at stake if the U.S. can reach out and charge anyone, source or otherwise, with violating the over-broad use of the Espionage Act. Assange is a clear indication that using the Espionage Act is no move to protect national security, it is being used to quiet dissent. I have had the pleasure of speaking directly to this issue, most recently during a webinar discussing what Assange will face if extradited. (You can watch via this link.) I hope to be able to have more opportunities to speak out against extraditing Assange while tackling the horrific and perverse use of the Espionage Act. If the current situation continues unabated, it is only a matter of time before the U.S. government charges a more well-connected news entity for publicizing embarrassing and damning information from a whistleblower. As such, the question for Mr. Biden and Ms. Harris is all the more pressing.
I am actually glad, sincere or not, that Mr. Trump has, though unintentionally, raised the issue of whistleblowers at this point in his presidency. It has the potential of sparking renewed interest in and support for those who have been and those who will be brave enough to stand up and say “no” to government wrongdoing. This is also an opportunity to question Mr. Biden and Ms. Harris and call them to account on their position in this matter. The trend started by the Obama administration has to stop, and maybe Mr. Trump has signaled an effort to at least examine changing that troubling trend by mentioning a possible pardon for Edward Snowden. And if Mr. Biden should become president, maybe his attention to this matter now will change his indelible connection to one of the biggest threats to our increasingly attacked freedom of speech.
It has been difficult for me to find purpose in my life since being released from prison, there has been so much loss and frustration trying to pick up the pieces of a life shattered by injustice. I am fortunate to have this forum to express my voice and maybe, hopefully make a difference. My tragedy can and should be one of the many warning beacons of governmental reprisal, overreach, and injustice. If my purpose is to use my experience to spark change, then I will wear that mantle as proudly as my refusal to plead guilty to a crime I did not commit. I am grateful to you for helping me find a meaningful purpose in my life.
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Jeffrey Sterling is a former CIA case officer who was at the Agency, including the Iran Task Force, for nearly a decade. He filed an employment discrimination suit against the CIA, but the case was dismissed as a threat to national security. He served two and a half years in prison after being convicted of violating the Espionage Act. No incriminating evidence was produced at trial and Sterling continues to profess his innocence. His memoir, “Unwanted Spy: The Persecution of an American Whistleblower,” was published in late 2019.