I’m not a big fan of Representative Tulsi Gabbard, but her proposal to allow defendants to use a public interest defense in cases of releases of classified information is an idea long overdue.
Prosecutions under the Espionage Act frequently resemble a kangaroo court, particularly in Judge Leonie Brinkama’s court, where she has consistently made a vigorous defense by the defendant impossible.
Still, I’m waiting for the other shoe to drop about it, because I do not trust Gabbard:
Legislation proposed in Congress would amend the United States Espionage Act and create a public interest defense for those prosecuted under the law.
“A defendant charged with an offense under section 793 or 798 [in the U.S. legal code] shall be permitted to testify about their purpose for engaging in the prohibited conduct,” according to a draft of the bill Hawaii Representative Tulsi Gabbard introduced.
Such a reform would make it possible for whistleblowers like Edward Snowden, Reality Winner, Terry Albury and Daniel Hale to inform the public why they disclosed information without authorization to the press.
The legislation called the Protect Brave Whistleblowers Act is supported by Pentagon Papers whistleblower Daniel Ellsberg.
“If this long-overdue revision of the 1917 Espionage Act had been law half a century ago, I myself could have had a fair trial for releasing the Pentagon Papers in 1971: justice under law unavailable to me and to every other national security whistleblower indicted and prosecuted since then,” Ellsberg declared.
As noted, government employees or contractors prosecuted under the Espionage Act would be allowed an “affirmative defense” under the Protect Brave Whistleblowers Act that they engaged in the “prohibited conduct for purpose of disclosing to the public” violations of laws, rules or regulations, or to expose “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
However, the Espionage Act Reform bill appears to do more to prohibit the Justice Department from prosecuting journalists. It specifically ensures “only personnel with security clearances can be prosecuted for improperly revealing classified information” and aims to protect the rights of members of the press that “solicit, obtain or publish government secrets.”
“When brave whistleblowers come forward to expose wrongdoing within our government, they must have the confidence that they, and the press who publishes this information, will be protected from government retaliation,” stated Gabbard.
I like the bill, though my preferred solution, adopting the Swedish concept of Offentlighetsprincipen (openness) as an explicit constitutional right.
Anything that provides more accountability and exposure to the US state security apparatus is a good thing.