History might not look fondly on the Bradley Manning conviction. That’s not a judgment on Manning’s actions or his trial; it's simply a matter of historical experience: Presidents who have invoked the Espionage Act have frequently ended up on the wrong side of history.
Congress passed the Espionage Act to bolster the U.S. war effort in 1917. An early draft of the law would have also allowed media censorship, though that part didn’t make it into the final legislation. The act made it illegal to interfere in the U.S. war effort and to transmit a large variety of national defense information, classified or otherwise, to both foreign governments and domestic individuals who weren’t authorized to have it.
That vague wording has meant a lot of things over the years, not all of them good. In the period immediately after it was written, the Espionage Act was used to jail hundreds of socialists and pacifists who opposed World War I. Later it would be applied to everyone from KGB spies to nuclear scientists. Since the start of the Obama administration, six leakers have also been prosecuted under the law -- twice as many than in all past administrations combined.
To be clear, the Espionage Act has been amended several times since it was passed, and it’s been used to nail plenty of nefarious characters -- including a KGB informant who got several U.S. operatives killed. (Aldrich Ames is still serving out his life term.) The law no longer includes, for instance, the language about interfering with military recruitment that got Eugene Debs and other protesters in trouble in the early 20th century. But given the controversy around Manning’s case and conviction, it’s worth reminding that the law has been at the center of some pretty divisive cases:
- Eugene V. Debs: Debs was sentenced to 10 years in prison for making an “anti-war” speech in 1918, though he reportedly only mentioned the war once. He ran a presidential campaign from jail and was pardoned by President Warren Harding after three years behind bars.
- Robert Goldstein: In one of the most eyebrow-raising applications of the Espionage Act, Goldstein -- a movie director -- got a $5,000 fine and 10-year prison sentence for depicting British soldiers negatively in a film about the American Revolution. Prosecutors feared it would somehow undermine faith in U.S. allies.
- Charles Schenk: Schenk was indicted for distributing anti-war pamphlets during World War I. His appeal -- which he lost -- rose to the Supreme Court and set an important free speech precedent.
- Julius and Ethel Rosenberg: Both Rosenbergs were charged with, and executed for, sharing military secrets with the Soviet Union, though later evidence suggests Ethel was likely innocent.
- Daniel Ellsberg: The former military analyst who famously shared the “Pentagon Papers” with the New York Times was the first leaker charged under the Espionage Act. The papers exposed decades of military mishandling in Vietnam, and the case was later dropped.
- Samuel Loring Morison: Sen. Daniel Moynihan lobbied for Morison’s pardon, which the former Navy intelligence analyst received from President Bill Clinton in 2001. Morison was convicted in 1985 of selling classified photographs of a Soviet aircraft carrier to a British military journal.
- Wen Ho Lee: Lee was fired from his job as a U.S. nuclear scientist and was indicted on fears he leaked nuclear information to China, though his case didn't go to trial. Lee later won an apology and a $1.6 million settlement from the government and five media outlets, including The Washington Post, that reported the allegations against him.
- Shamai Leibowitz: The first government leaker charged under the Obama administration, Leibowitz -- a former FBI linguist -- was sentenced to 20 months in jail in 2009 for leaking documents about Israeli diplomats to a blogger.
Since Leibowitz, the Obama administration has gone on to indict several more government leakers, including Stephen Kim, who told Fox News that North Korea would respond to sanctions with nuclear tests, and Thomas Andrews Drake, who reported a wasteful NSA program to the Baltimore Sun. Drake's story has been particularly unfortunate: Though the case against him fell apart and a top Justice Department spokesman conceded that it was an "ill-considered choice for prosecution," Drake lost his job and government pension and now works at an Apple Store in Bethesda.
Edward Snowden, the government contractor who exposed a massive surveillance program and promptly decamped to a Russian airport, is the most recent leaker to be charged under the Espionage Act.
Public opinion is divided on many of these figures, who are either traitors or whistleblowers, depending whom you ask. But public opinion has been divided on the people charged under the Espionage Act during their own time.
Today, many of the early Espionage Act prosecutions seem hard to defend. Will future generations have a similar view of the Obama administration's campaign against Manning, Snowden and other leakers?