Former CIA employee Josh Schulte, who is accused of leaking the “Vault 7” files to WikiLeaks, urged a federal court to rule the Espionage Act is unconstitutional. He also asked the court to dismiss the Espionage Act charges against him.
The files Schulte allegedly released brought scrutiny to the CIA’s hacking arsenal, which targeted smartphones and computers. A program called “Weeping Angel,” that allowed the CIA to attack Samsung F8000 TVs and convert them into spying devices was exposed. They also showed how the CIA targeted Microsoft Windows, as well as Signal and WhatsApp users, with malware.
In June 2018, Schulte was charged with 13 offenses, including four counts of violating the Espionage Act.
The draconian process in which the Justice Department applies the Espionage Act to individuals accused of leaks has never been reviewed by the United States Supreme Court. Yet, as such prosecutions occur with increased regularity, defense attorneys have challenged the 1917 law.
Schulte’s attorneys, Edward Zas and Sabrina Shroff, maintain [PDF] the provision of the Espionage Act wielded against Schulte, which is known as Section 793, is “so vague and overbroad that it threatens to ‘criminalize substantial amounts of protected speech essential to informed public debate in a democratic society.’”
The government does not have to prove whether Schulte “knew or intended that the information would be used to injure the United States.” They only have to prove that Schulte had “reason to believe” it would.
Their motion to the court acknowledges the statute was intended to “curb classic ‘spying,’” such as “providing national security secrets to foreign agents with intent to harm the United States,” but it was “written so broadly (and vaguely) as to cover substantial amounts of protected speech based on its content.”
Schulte’s attorneys argue, “This content-based restraint is therefore subject to strict scrutiny and presumptively unconstitutional.”
“Because the act restricts the flow of ‘information,’ it undeniably restricts ‘speech.’ The Supreme Court has held ‘that the creation and dissemination of information are speech within the meaning of the First Amendment,’” they add.
Related to the “reason to believe” standard, Schulte’s attorneys warn the government could prosecute “members of the media for obtaining and publishing truthful information about U.S. foreign policy and national defense” because the government could argue that information could “injure” or be “useful” to a foreign power.
To argue the section of the Espionage Act wielded against Schulte is “overinclusive,” Schulte’s attorneys insist it “brings under threat of criminal liability a tremendous amount of newsworthy reporting that does not threaten national security.”
The Washington Post published two articles in 2017 by David Ignatius and Greg Miller and Greg Jaffe respectively. The reports contained sensitive details about Retired Lieutenant General Michael Flynn speaking to Russian ambassador Sergey Kislyak and President Donald Trump sharing highly classified information with the Russian foreign minister and ambassador.
Ignatius, Miller, and Jaffe each possessed this information without authorization. The public interest, Schulte’s attorneys write, may have outweighed the potential threat to the “national defense.”
Furthermore, Schulte’s attorneys say the government may use the statute to target “just about every act of newsgathering, including those made for or by the press.”
“After all, anyone who transmits or collects national security information with the aim of disseminating it to the public has an objective ‘reason to believe’ a foreign government could get that information and use it to its benefit,” they suggest.
“Mr. Schulte’s particular conduct is irrelevant to this analysis,” Schulte’s attorneys conclude. A defendant may argue it would violate the First Amendment rights of “third parties,” even if it did not violate his First Amendment rights.
In September, the defense for Daniel Hale, a former U.S. Air Force language analyst, challenged the Espionage Act charges against him for allegedly disclosing documents to Intercept reporter Jeremy Scahill, which exposed a targeted assassination policy involving armed drones.
Hale’s attorneys invoked the legislative history of the Espionage Act and argued he was targeted for engaging in his First Amendment right to criticize his government. They took issue with the fact that government does not have to prove that Hale intended to harm the United States. The government simply has to show Hale knew he was violating the law.
Likewise, Schulte’s attorneys similarly argue, “Knowledge that one’s conduct is unlawful—in the case of [section] 793, that one’s speech is prohibited—is not the same thing as having an evil motive or an intent to harm the United States.”
Back in November 2018, the government accused Schulte of using contraband phones to leak from prison and charged him with another violation of the Espionage Act.
The charge came around a month after Schulte said he was put in solitary confinement and not permitted to contact his attorney or work on his defense.
Schulte filed a complaint [PDF] for “violation of civil rights” on March 20, 2019, that contemptuously labeled all the agencies involved in his prosecution and incarceration “Federal Terrorists.” He accused the FBI of stealing his property and fabricating evidence against him, and he claimed he was enduring torture, which is especially illegal because he is a “pretrial inmate.”
Incredibly, Schulte maintained he had lost over $50 billion worth of income and was owed this amount in damages from the U.S. government.
Despite the questions this filing raised about Schulte’s mental stability, the recent motion from his attorneys puts forward crucial arguments against how the government pursues Espionage Act prosecutions.
There are technically no limits on how the Espionage Act may be applied. His attorneys recall how Attorney General Alberto Gonzales considered prosecuting the New York Times for revealing the warrantless wiretapping program and the Washington Post for exposing the CIA’s use of secret prisons for the torture and detention of terrorism detainees.
President Trump often calls for investigations into who leaked information to journalists for negative stories about his administration. When Jeff Sessions was the attorney general, he proclaimed, “We are going to step up our efforts and already are stepping up our efforts on all leaks,” a threat that represented his zeal for punishing government employees who talked to the press.
The Trump administration has charged WikiLeaks founder Julian Assange with violating the Espionage Act, which makes him the first journalist to be charged under the law. This fact is conspicuously missing from the motion from Schulte’s attorneys.
Schulte’s attorneys may not want to appear to confirm details in Schulte’s case by expressing alarm over the case against Assange. Yet, regardless, the way in which the Espionage Act increasingly is employed to chill media sources and shut down journalism is troubling, and the controlling precedents this case may establish should have media organizations paying attention.