Senator Dianne Feinstein has proposed legislation to protect the National Security Agency from losing dragnet surveillance powers when Patriot Act provisions expire. But her bill would not only save spying powers but also codify into law a provision that would expressly enable the government to criminalize any national security whistleblower who may choose to follow the footsteps of NSA whistleblower Edward Snowden.
As first reported by journalist Marcy Wheeler, the provision in Feinstein’s bill [PDF] is modeled after the Espionage Act, which President Barack Obama’s administration has aggressively relied upon to prosecute a record number of whistleblowers. (Snowden was indicted under the Espionage Act.)
The provision would prohibit “unauthorized disclosures” by an “officer, employee, contractor, or consultant of the United States” or any “recipient of an order” issued under the Foreign Intelligence Surveillance Act (FISA), who “knowingly comes into possession of classified information or documents or materials containing classified information” of the US.
A person could be criminalized if they disclosed any information connected to an application to the FISA Court, an order approved by the court or information acquired under a directive issued by the court.
Knowingly communicating, transmitting and making available information to an “unauthorized person,” such as a journalist, would be criminal. Someone who “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location,” as Snowden did before providing documents to journalists, would be violating the law as well.
Making information available to a reporter could potentially result in someone going to jail for ten years. Retaining documents at an unauthorized location could potentially result in a one-year prison sentence.
A similar provision was included in a bill introduced by Senator Richard Burr over the weekend. The bill was also drafted to protect dragnet surveillance powers.
Both Burr, a Republican who chairs the Senate intelligence committee, and Feinstein, a Democrat and former chair of the Senate intelligence committee, are powerful senators who have traditionally supported anti-leaks measures, which Senator Ron Wyden blocked in 2012.
Feinstein accused Snowden in June 2013 of “violating” his oath to defend the Constitution. She unequivocally stated, “He violated the law. It’s treason.” When Burr found about what Snowden revealed on mass surveillance, he was not concerned about the programs but rather about how a contractor like Snowden had access to so much material.
Jesselyn Radack, an attorney who has represented a number of whistleblowers such as Thomas Drake, Bill Binney, and currently represents Snowden, reacted, “Feinstein is the latest member of Congress to offer a non-compromise ‘compromise’ to replace the already-compromised USA Freedom Act. Her bill would essentially retain Richard Burr’s odious Section 215 mini-Espionage Act, imposing 10-year penalties on people like my NSA whistleblower clients Edward Snowden, William Binney and Thomas Drake, who told us what the intelligence community was really doing with the call records program.”
“The most disturbing aspect is the prospect of Congress codifying the Justice Department’s draconian use of the century-old Espionage Act into law when there’s a lot of validity that the Department has unconstitutionally applied the Espionage Act to whistleblowers.”
The provision contains no clear and present danger standard, which means it would not matter if a person knew the disclosure of information would result in no harm. The government would be under no obligation to present any evidence that a release of information caused grave damage or harmed anyone during prosecution. This would likely violate the First Amendment.
Abbe Lowell, an attorney for Stephen Kim, a former State Department employee who pled guilty to violating the Espionage Act, has criticized law used to prosecute leaks, particularly the Espionage Act, because it is “so vague and so broad.”
…[I]t deals with words that don’t have obvious meanings, such as information relating to the national defense, so that they can be applied immediately to a government employee who signs a confidentiality agreement, and then it could be applied to the foreign policy analyst who meets with that government employee and discusses what the government employee knew. And then it could be applied to a reporter who is overhearing the conversation between the government employee and the analyst and prints a story.
Not only that, the current laws can be applied to each of these individuals whether or not there is an actual document involved, or whether the subject of the leak is an oral conversation. And not only that, a prosecution can be brought without the requirement of any of the disclosures involving an actual intent to injure the United States or to assist an adversary. And all this is made more complicated when there are good motives involved, such as somebody trying to bring to the attention of the public a lie the government has stated, or a corrupt contract, or when the press is doing its job or when lobbyists are doing theirs… [emphasis added]
Both Burr and Feinstein are proposing provisions that would further entrench into law the ability of the government to criminalize a person, even if a document was never actually disclosed. Again, this has huge implications for the First Amendment.
During trial, anyone charged with violating this proposed law would not be able to make a defense that their disclosures were in the public interest. That is because the law treats “unauthorized disclosures” as strict liability offenses, which is how the Justice Department has convinced federal courts to handle cases brought against whistleblowers for leaks. A whistleblower could argue he did not know he or she was communicating classified information or that what he had in his or her possession was a FISA order but that kind of a defense would not be all that appealing to someone wanting to come off as competent and appropriately concerned about government policies.
Finally, what Burr and Feinstein are proposing is comparable to the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act, which was sponsored by Senator Joseph Lieberman back in 2010. It sought to make it a crime to publish or disseminate classified information and was reintroduced after WikiLeaks and other organizations began to publish US State Embassy cables.
However, the provision stops short of criminalizing the publishing of classified information, which would make it blatantly unconstitutional. Instead, the provisions nestled in an array of extensions designed to preserve spying powers simply go after the person revealing the information, and, in a climate that already has been very chilly for national security whistleblowers, it discourages government employees from going public with concerns about the operations of US intelligence agencies.
If this measure were to be adopted by Congress in any so-called compromise bill, the next Edward Snowden would likely choose to stay silent and keep concerns to themselves or flee the United States, as Snowden did, because they recognize going public in the US could mean facing harsh punishment.
Image is a screen shot from a broadcast of a Senate hearing.