by Howie Hawkins
The 10-day-old civil uprising following the murder of George Floyd has put police brutality and racism into the national spotlight. The militarized and often violent response by the police and National Guard against nonviolent protest is one form of political repression.
Today is the seven-year anniversary of when the national spotlight beamed on to another form of political repression: the mass surveillance of the people by the National Security Agency (NSA).
June 5, 2013 was the first publication of Edward Snowden’s revelations of mass surveillance by the National Security Agency (NSA). Snowden blew the whistle on global mass surveillance of US citizens and people around the world by the NSA in cooperation with big telecommunications companies, including AT&T and Verizon.
The scope of NSA mass surveillance included watching and reading the computers of anyone in the world, collecting metadata for hundreds of billions of telephone calls, tracking the location of cell phones, retrieving personal data from Google and Yahoo accounts, capturing individuals’ online sexual activity, infecting personal computers with malware to enable NSA hacking and data retrieval, conducting industrial espionage, and spying on allied world leaders. One of those leaders was In Angela Merkel, the conservative German Chancellor, who, when she found out the NSA was spying on her phone calls, compared the NSA to the Stasi, the secret police of the former East Germany.
The US government charged Snowden with theft of government property and two counts of violating the Espionage Act of 1917, a World War I law that criminalizes spies who sell secrets to an enemy for profit, but not whistle blowing or political dissent. But it has been used for political repression of people who dissent from government policies and who expose crimes by the government to the media.
Defendants in Espionage Act trials are not allowed to use a public interest defense, which would likely help their case with a jury. Defendants are prohibited from describing the crimes and public harm they were attempting to halt. Using the Espionage Act against whistle blowers has no other purpose other than suppressing dissent and the exposure of crimes by government officials.
Invite Snowden To Advise US Government on Cybersecurity and Digital Democracy
In a Hawkins/Walker administration, we would not only have the charges against Edward Snowden dropped, we would invite him into the administration to help shape policy on cybersecurity and digital democracy. Snowden’s memoir, Permanent Record, was the most compelling book I read in 2019. He recounts how he decided to become a whistle blower. He shares his views on how to conduct legitimate digital intelligence gathering for national defense and public safety without violating our constitutional rights to privacy, free speech, and a free press. He also proposes policies to protect personal data and privacy from private sector corporate databases. Snowden has the experience and expertise from working in the intelligence community to provide this policy advice. He also brings the right values. As he says in Permanent Record (p. 207), the major ideological conflict of our time is between liberal democracy and authoritarianism.
Political Repression Using the 1917 Espionage Act
The Espionage Act was enacted and used during World War I to suppress anti-war activists. Three prominent members of the Socialist Party were charged under the Espionage Act for anti-war speeches and writings, including Milwaukee congressman Victor L. Berger, five-time Socialist presidential candidate Eugene V. Debs, and labor and civil rights leader A. Philip Randolph. The two most prominent American anarchists of the time, Emma Goldman and Alexander Berkman, were also charged under the Espionage Act. Debs served the most time in prison, nearly three years of a ten-year sentence before it was commuted by President Harding. Debs received nearly a million votes for president in 1920 campaigning from the Atlanta Federal Penitentiary.
After the Wilson administration, prosecutions under the Espionage Act were relatively rare and used only against spies, not political dissidents or whistleblowers, until the Nixon administration unsuccessfully charged Daniel Ellsberg and Anthony Russo for releasing the Pentagon Papers to the media.
The use of the Espionage Act changed radically with the Obama administration and its “war on whistleblowers.” It charged eight whistleblowers under the Espionage Act. The Trump administration has continued with five more Espionage Act cases against four whistleblowers and one journalist and publisher, Julian Assange. These cases are not about espionage and spying. They are about intimidating potential whistleblowers, criminalizing journalism, and rendering the First Amendment right to freedom of the press ineffectual.
As president, I would pardon or drop the pending charges against all 13 of these Obama-Trump era whistleblowers:
Shamai Leibowitz, a translator for the FBI, disclosed documents to a member of the media concerning illegal FBI practices he has said are similar to what Edward Snowden reported about the NSA. He became a whistleblower after his FBI superiors took no corrective action after he reported the violations to them. In 2009, he pled guilty to one count of disclosure of classified information and was sentenced to 20 months in prison.
Thomas Drake was an NSA official who was charged under Espionage Act in 2010. The case arose from investigations into his communications with Siobhan Gorman of The Baltimore Sun and Diane Roark of the House Intelligence Committee as part of his attempt to blow the whistle on several issues, including the NSA’s Trailblazer project of analyzing cell phone and email traffic. In the end, he was found guilty of misdemeanor unauthorized use of a computer.
Stephen Jin-Woo Kim was a contractor for the State Department and a specialist in nuclear proliferation. In 2010, he was indicted for alleged disclosure of national defense information to reporter James Rosen of Fox News related to North Korea’s plans to test a nuclear weapon. Kim pled guilty to a single felony count of disclosing classified national defense information and was sentenced to 13 months in prison.
Jeffrey Sterling, a lawyer and one of the few African-American CIA agents, was indicted in 2011 for revealing details in 2003 about Operation Merlin, the covert operation to supply Iran with flawed nuclear warhead blueprints, to journalist James Risen, a reporter for the New York Times, for Risen’s book State of War. Sterling had also refused to settle his racial discrimination lawsuit against the CIA, which used the “state secrets privilege” defense get the case dismissed. Sterling was sentenced to three and a half years in 2015.
Chelsea Manning, a US Army Private First Class, disclosed to Wikileaks military and government documents that became known as the Iraq and Afghanistan War Logs. Among many revelations about the conduct of these wars was the infamous “Collateral Murder” video showing a helicopter gunship shooting down noncombatant civilians and journalists in Baghdad. She was convicted under the Espionage Act in 2013 and sentenced to serve a 35-year sentence. On January 17, 2017, President Obama commuted her sentence to nearly seven years of confinement dating from her arrest on May 27, 2010. She was subsequently imprisoned for much of 2019 and 2020 for contempt of court for refusing to testify before grand juries considering the Espionage Act charges against Julian Assange. She said the grand jury proceedings were targeting political speech and that she had revealed all she knew in her previous trial in 2013. She was fined $1,000 a day, which mounted up to $256,000, by the time she was released in March of this year. A crowdfunding campaign raised the money to pay off her fines in two days.
John Kiriakou, a former CIA officer and later a Democratic staffer on the Senate Foreign Relations Committee, is the sole CIA agent to go to jail in connection with the US torture program during the Bush administration. He didn’t torture anyone. He blew the whistle on waterboarding to the media. He was charged in 2012 with several counts under the Espionage Act. Facing a possible 45-year sentence and mounting legal fees, Kiriakou entered a plea agreement. In exchange for pleading guilty to the one charge, the prosecution agreed to a 30-month sentence.
Edward Snowden has been exiled in Russia since 2013 facing charges under the Espionage Act for revealing the NSA’s secret mass surveillance program. As president, I would have the charges against him dropped and invite him into the administration to help formulate policies on cybersecurity and digital democracy that enable legitimate intelligence gathering without violating civil liberties and the right to privacy.
Reality Winner was arrested in 2017 for leaking a half-page classified NSA document about Russian attempts to gain information about the US election process, including a cyberattack on at least one U.S. voting software supplier and spear-phishing emails sent to more than 100 local election officials just days before the 2016 presidential election. The document was a summary of findings, not raw intelligence. She remains in prison today after pleading guilty to one count of felony transmission of national defense information. Winner’s plea agreement with prosecutors sentenced her to five years and three months in prison followed by three years of supervised release.
Terry Albury is a 17-year FBI agent who was charged under the Espionage Act in 2017 of leaking to The Intercept the FBI’s secret guidelines for using informants and for surveilling journalists and religious and ethnic minority and immigrant communities. Albury, the son of an Ethiopian refugee, viewed the FBI’s approach to counterterrorism as rooted in racial and religious bias. He routinely heard other agents make racial jokes and slurs as they investigated the Somali Muslim population in Minneapolis, where Albury was the office’s only Black agent. He believed the FBI’s racism and xenophobia only deepened the mistrust of law enforcement among people who could give useful information. He pled guilty in 2018 to unauthorized disclosure of national security secrets and is currently serving out a four-year sentence.
Daniel Hale, an NSA employee, leaked documents about Obama’s drone assassination program to Jeremy Scahill for his Oscar-nominated “Dirty Wars” film. Hale believed extrajudicial murders were illegal and wrong. He was charged under the Espionage Act in May 2019 for counts that could carry a 50-year sentence. He pled not guilty and his case is under litigation.
Julian Assange was indicted in May 2019 on 17 counts of violating the Espionage Act for publishing secret military and diplomatic documents in 2010 that he received from Chelsea Manning. Assange is not indicted for being a whistleblower, but for being a journalist and publisher of information provided by a whistleblower. Assange is the first journalist charged under the Espionage Act. The Bush administration considered using the Espionage Act to prosecute the New York Times for revealing the warrantless wiretapping program and the Washington Post for exposing the CIA’s secret prisons for the detention and torture of terrorism suspects. The Obama administration considered charging Assange under the Espionage Act. Both administrations backed off when they realized the implications for First Amendment free press rights made their case difficult to win, as the Nixon administration found out in the Ellsberg and Russo case with the Pentagon Papers. But the Trump administration has no such qualms and has charged Assange for practicing journalism. If convicted for publishing government leaks, it will effectively end freedom of the press, which relies on government leaks to report what the government is really up to. If I were president, I would have the charges against Assange dropped.
Henry Kyle Frese, a counterterrorism analyst at the Defense Intelligence Agency, was charged in late 2019 under the Espionage Act of disclosing classified information about a foreign countries’ weapons systems to two reporters. He pled guilty in February 2020 and faces up to 10 years in prison when sentenced.
Joshua Schulte, a former CIA software engineer, was charged in August 2017 under the Espionage Act, with leaking to Wikileaks “Vault 7,” a large set of documents that revealed a secret division of the CIA responsible for offensive hacking operations that include implanting malicious computer viruses to compromise cars, smart TVs, web browsers, smartphones, and other operating systems. These activities are plainly illegal and unconstitutional. Schulte pled not guilty and the judge declared a mistrial in March 2020 after the jury was deadlocked on all but two of 11 charges. The government can retry the case. Meanwhile, Schulte has pled not guilty in separate trials on charges of possessing child pornography and of sexual assault. As president, I would have the Espionage Act charges for whistleblowing on CIA illegal activities dropped. I would monitor the sex crime trials to make sure received due process under the law.
The Trump administration’s war on whistleblowers includes three more indictments using other laws as well as the firing of the inspectors general of the intelligence community and the departments of defense, state, health and human services, and transportation, many of them because they were protecting anonymity of internal whistleblowers.
US Political Prisoners
Whistleblowers serving time in prison are a small subset of a much larger group of US political prisoners.
I have previously called for the release of all US political prisoners. Mumia Abu-Jamal and Leonard Peltier are probably the most well-known US political prisoners. But there are hundreds of political prisoners from the freedom movements of African Americans, American Indians, Chicanos, and Puerto Ricans and from the peace and environmental movements. Many of them are serving longer sentences than others convicted for similar crimes for the political reason that they opposed government policies.
Dr. Joseph Harris, a former Black Panther and Mumia’s doctor, has said that many of these political prisoners who have been incarcerated for decades should be released now on the grounds of simple human decency.
In the midst of the Covid-19 pandemic, there is more reason than ever for them to be released. For example, Major Tillery is a 70-year-old jailhouse lawyer who blew the whistle in 2015 when Mumia Abu-Jamal was near death due to untreated hepatitis C. Tillery, who is serving a life sentence for a murder conviction that most observers believe was a frame-up, became ill with Covid-like symptoms a couple of weeks ago, but has not been tested or properly treated.
There should be no political prisoners in free and democratic society. As president, I would pardon and free all US political prisoners.