My first installment of Daily Intel, published on June 8 of last year, I told the story of the arrest of the woman with the best name for someone arrested for doing something stupid. The FBI had just arrested Reality Winner, a now-26-year-old former Air Force linguist who worked as a contractor for the National Security Agency, on charges that she violated the Espionage Act. She was the first leaker arrested during the Trump Administration. She won’t be the last by any stretch.
On Tuesday of this week, Winner pleaded guilty to one count of violating 18 U.S.C. 793, “Gathering, transmitting or losing defense information.” Under the terms of her plea, Winner will spend 63 months in federal custody, followed by three years of supervised release. As it turned out, “pretty, white, and cute” was not an effective defense strategy.
Winner printed out a Top Secret report on Russian meddling in the U.S. presidential election in 2016 and mailed it to Edward Snowden’s favorite publication, online outlet The Intercept. Her arrest came after the site’s editors shared the report with the NSA in an attempt to verify its authenticity, which enabled the agency to identify where it came from.
There has been a lot of talk recently about how bad things are in the U.S. compared to other periods in our history. I come down firmly in the “are you kidding? Things now aren’t remotely close to the worst they’ve ever been” camp. The Espionage Act, under which Winner now stands convicted, has been abused in the past, for sure. Congress passed the law in 1917, shortly before the U.S. entered the First World War. It’s early application didn’t really concentrate on espionage so much as dissent. President Woodrow Wilson’s use of the Espionage Act to jail people critical of his war policies endures as one of the worst First Amendment violations in the country’s history.
The government sent many people to jail simply for opposing the government’s decision to enter the war in Europe. The Supreme Court’s decision in Schenck v. United States, in which Oliver Wendell Holmes wrote his oft-quoted, oft-misunderstood, and long since overruled phase about “falsely shouting fire in a movie theater,” is one of the most wrong-headed decisions of the Supreme Court this side of the Dred Scott case.
Time and new jurisprudence have rendered Holmes’s opinion in Schenck moot, but the Espionage Act still remains on the books, and for good reason.
Keep it secured
Holders of a security clearance like Ms. Winner, whom The Intercept laughably calls a “whistleblower” are held to a different standard from the rest of the country. Governments get to keep secrets. If journalist come to possess those secrets, they are free to publish them. The Pentagon Papers case made that clear.
But Daniel Ellsberg’s leak in that case also proved that when you are the one with the clearance, your responsibility is to prevent the unauthorized release of that information. It’s not a difficult concept. The coffee mug on my desk says it best: “What happens in the Pentagon stays secured in the Pentagon.”
Another former government official has just learned this lesson. James Schwab was the spokesman for the San Francisco office of Immigration and Customs Enforcement until he resigned in March. He says that ICE officials wanted him to lie about the agency’s activities, so he quit. I’ve argued before that in this situation, quitting is the honorable thing. But by making his departure a public spectacle, he opened himself up to suspicion.
As Schwab was talking to a CBS reporter in his home on Wednesday, he received a visit from two investigators from the Department of Homeland Security Inspector General’s office. They wanted to talk to him about leaks to Oakland’s mayor, who had received advance warning of ICE raids in February.
I am certainly not saying Schwab is the leaker, nor has DHS or ICE said he’s the leaker. But his actions and his statements certainly drew attention to himself and revealed enough of a motive for leaking to make him worthy of further investigation.
The government is serious about finding and punishing those who are behind unauthorized releases. It was true under President George W. Bush. It was especially true under President Barack Obama, who used the Espionage Act to prosecute more leakers (eight) than all other presidents combined (five).
It’s true of President Donald Trump, and it will continue to be true of future presidents.
