In principle, new laws are passed, upheld, and enforced to protect us and our inalienable rights. Violation of these laws have consequences and the fear of the consequences are meant to deter us from said violations. For example, the fear of ending up in prison or the death penalty discourages those who lack the empathy not to commit the act of murder.
However, laws can also have a negative effect, such as the racially divisive Jim Crow laws that were enacted in the late 19th and early 20th centuries and upheld until 1965. Laws can also be effective while having serious drawbacks. One of these laws is The Espionage Act of 1917. While the law was meant to prevent information that could be harmful to the United States or its allies from getting into the hands of foreign powers, it has also been used to silence those who were merely trying to speak out against injustices that the United States government has committed.
The Espionage Act was passed as a result of America entering World War I. In the form it exists today it states in part,
“Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information concerning the communication intelligence activities of the United States or any foreign government.”
While it may seem that the law was put into place to avoid classified information falling into the wrong hands, such as Russia, in practice it has been used to silence those who see injustices committed by our government, and want to make them public.
John Kiriakou, a former CIA analyst who was working for the accounting firm Deloitte, was interviewed by CBS news in 2007. Kiriakou was a CIA agent who stayed by the bed of Abu Zubadaya while he was being waterboarded, sparking a national debate as to the effectiveness of the practice. “As he (Kiriakou) saw it, he was defending the agency’s adherence to the rule of law and its commitment to keeping Americans safe.”
Similarly, in 2005, The New York Times released a story exposing the illegal wiretapping of those in the United States by the NSA. This was in direct response to 9/11 and the legitimate need to collect information on the enemies of the U.S. The program used to collect data was called Trailblazer, and was chosen over a cheaper option, Thin-thread. Unlike Trailblazer, Thin-thread didn’t disclose the names of individuals until it was necessary. Thomas A. Drake, a senior official at the NSA, headed up Thin-thread, and had serious concerns about the costly project and the unconcealed names of innocent civilians.
Drake tried going through legal channels with his concerns and testified before Congress but he felt that he wasn’t being heard. He was put in contact with a reporter at the Baltimore Sun, and the reporter used him as a source in an article exposing the Thin-Thread and Trailblazer controversy. Ultimately, Drake was charged under the Espionage Act and while he wasn’t charged with conspiring with a foreign power, he was charged with “willful retention of national defense information”, or “unauthorized possession of classified data”.
This is one example of how law can silence us. Trailblazer directly violated the Fourth Amendment rights of the citizens of the United States and Drake spoke out against it. The United States tried to make an example of Drake, but the case was dropped due to lack of evidence. Fear of being prosecuted keeps vital classified information from being leaked, but also has the consequence of silencing those who wish to speak out for the public good.
Edward Snowden and Chelsea Manning are now household names, but they were not the first to be charged with leaking information to the public to show government wrongdoing. From the precautions Snowden took in leaking the information to The Guardian, it is evident that his decision was not one he made without some fear. Snowden consequently fled the country and is currently living in Russia.
In prosecuting whistleblowers who leak classified information, the United States government has set a precedent that whistleblower protection laws do not apply to those who deal with classified data, even if the classified data proves wrongdoings or illegal activities. Examples can be provided which show how whistleblowers are treated, but for obvious reasons, examples of those who considered not speaking out but did not do not exist. This is how the Espionage Act, and other laws, can be, and are being used to silence the public.