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Acts of Journalism and the Espionage Act

June 29, 2013

By Josh Stearns

Earlier this month, federal prosecutors filed a formal criminal complaint against Edward Snowden charging him with three felonies for leaking information about the National Security Agency’s surveillance programs to Glenn Greenwald at the Guardian and Barton Gellman at the Washington Post. Two of those charges were filed under the 1917 Espionage Act.

Snowden is the seventh person the Obama administration has charged with violating the Espionage Act for leaking information to the press. Prior to 2008, only three other people had been charged with felonies under the Espionage Act for leaking documents.

Indeed, the first time the Espionage Act was applied to a whistleblower was in the case of Daniel Ellsberg, who leaked the Pentagon Papers to the New York Times in 1971.

This month marks the 32nd anniversary of the Times’ publication of the first excerpts of the Pentagon Papers.

I serve on the board of directors of the Freedom of the Press Foundation with both Greenwald and Ellsberg, and minutes after news broke about Snowden’s charges our board received an email from Ellsberg. It was short and to the point: “Same charges as against me, 40 years ago, except (so far) for conspiracy.”

Ellsberg predicted, accurately, that Snowden wouldn’t be charged with “espionage” per se, but rather with a violation of one specific part of the Espionage Act, 18 U.S.C. 793 (d). “Other parts of 792, 793 and 794 deal with real espionage; paragraph 793(d) could too, potentially, but has been used almost exclusively not for espionage but for unauthorized disclosures of classified information, starting with me in 1971, and all of Obama’s prior prosecutions of leaks,” Ellsberg wrote. Read the rest at bongbong.

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