Pfc. Bradley Manning as drawn at his February 23, 2012, by USMC Sgt. Shawn Sales
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In his December 7, 1915 State of the Union, President Woodrow Wilson delivered the following words:"There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue…I urge you to enact such laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. They are not many, but they are infinitely malignant, and the hand of our power should close over them at once. They have formed plots to destroy property, they have entered into conspiracies against the neutrality of the Government, they have sought to pry into every confidential transaction of the Government in order to serve interests alien to our own. It is possible to deal with these things very effectually. I need not suggest the terms in which they may be dealt with.""Whistleblowing was never considered in the Espionage Act. It was—and this point cannot be stressed enough—aimed squarely at individuals who would deliver national security secrets to foreign governments."
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In the 90s and much of the 2000s, the Espionage Act was used to prosecute various spies. It wasn't until around 2010, two years into Obama's first term, that the DOJ used it in its prosecution of various whistleblowers. In total, the Justice Department under Obama has charged seven individuals with violating the act—Edward Snowden being the latest addition. Bradley Manning, of course, was convicted of violating the Espionage Act in his court martial case, too.What Next?So, here we are exactly 40 years out from Edgar and Schmidt's paper, still ducking their critique of the Espionage Act (and others) when it comes to whistleblowers' leaking of classified defense and intelligence documents and actions. In fact, America has been debating whether the Espionage Act is overbroad and vague for almost 100 years now. Isn't it time to revisit the law, especially with the rise of the whistleblower?Remember, the Espionage Act of 1917 is at bottom a law passed during WWI, anti-German hysteria. It is a document out of sync with reality. More and more people, whatever their political ideology, desire a more transparent government. Instead, they get more secrecy. And when whistleblowers try to pry open the vault of secrets, a witchhunt ensues. Unfortunately, as you can see above, the courts aren't interested in limiting the Espionage Act. If anything, they are allowing the executive branch to expand its boundaries. Where does it end?With the highly popular and effective internet campaigns against SOPA, PIPA, CISPA, and even the multi-pronged effort to defund the NSA surveillance program, which failed by seven votes last week, it seems possible that a similar effort to amend the Espionage Act could gain steam. Right now, this doesn't even seem to be a point of debate. No one is calling for it. With the very public persecution and prosecution of whistleblowers, this needs to become a new front in the fight for transparency."America has been debating whether the Espionage Act is overbroad and vague for almost 100 years now. Isn't it time to revisit the law, especially with the rise of the whistleblower?"