Monday, April 23, 2018

Implications of our “post-subpoena” world

Guest Blogger

David Schulz

Last week FBI whistleblower Terry Albury pled guilty in Minneapolis to two counts of violating the Espionage Act.  Albury is the second person – after Reality Winner – prosecuted by the Trump administration for leaking documents to the media in just 15 months.  This puts Trump on track to outdo President Obama’s record-setting pace of Espionage Act whistleblower prosecutions, a chilling prospect given the description in the just-released Comey memos of the President and his FBI Director gleefully discussing the prospect of pursuing leakers aggressively and hoping to “nail one to the door as a message.”
The continuing use of the Espionage Act as a de facto official secrets act and Agent Albury’s conviction once again lay bare the fundamental problem that our legal regime for protecting national security secrets affords no adequate opportunity for a whistleblower to defend a disclosure on First Amendment grounds.  Albury had been the only African-American FBI agent in Minnesota, home to a significant Somali refugee community and, according to his attorney, Albury’s disclosures were an act of conscience.  Albury was motivated to pass information to a reporter by his belief that there was no viable alternative to remedy abuses he witnessed in the FBI’s investigation of political and religious groups and ethnic minorities, including its widespread use of national security letters (NSLs).
The Espionage Act was written a century ago to prosecute spies after World War I, but is being used to send sources like Albury to jail for leaking information to the U.S. press without any defense or mitigation based upon the public interest in the information disclosed.  As applied by the Department of Justice, the Espionage Act requires proof only that a whistleblower had “a reason to believe” a disclosure made to a journalist could harm the United States or aid a foreign country—it does not even require proof that a disclosure actually caused any harm.  
Like all nine of the whistleblowers prosecuted during the Obama administration, Albury was prosecuted without any evidence from reporters identifying their sources.  Indeed, with one exception, the government has not even sought such evidence. (A subpoena was issued to James Risen in the Sterling prosecution, but after the Fourth Circuit upheld it, Risen was never called to testify.)  The new reality is that journalists and their sources live in a “post-subpoena” world, where a government armed with massive new surveillance technology and unilateral authority to issue NSLs can identify and prosecute leakers without any need for evidence from a journalist.  This reality requires a serious re-thinking of the ways in which the public interest in disclosure can appropriately be taken into account to ensure that citizens have the information they need for self-governance to work.
Courts currently view the First Amendment as affording virtually no protection to a government whistleblower who discloses classified information and they extend virtually dispositive deference to the Executive in its classification decisions.  Recognizing that this lack of leaker protection creates a risk of substantial over-deterrence, some scholars have taken refuge in the thought—supported by the outcome of the Pentagon Papers litigation—that the information that truly needs to come out will make its way to the public through confidential sources working with reporters, who do have First Amendment protection and can be expected to protect their sources’ anonymity.  No more.
The rules of that game no longer work, as 11 consecutive Espionage Act prosecutions now attest.  Given this reality, there would seem to be two paths forward:  Either a technology develops that can once again allow whistleblowers confidently to communicate with reporters in a confidential manner (although no such solution is currently in sight), or the type of First Amendment defenses that have been widely understood to protect the press when it discloses national security information need to be extended to whistleblowers directly.  When Congress a few years back attempted to craft a federal shield law, for example, its legislation provided that the proposed reporters’ privilege would be overcome when “nondisclosure of the [reporter’s] information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in newsgathering and maintaining a free flow of information to citizens.” Free Flow of Information Act, S. 2831, 109th Congress, Section 4(b)(4) (2006).
Heidi Kitrosser has written insightfully on the need for the development of legal protections for whistleblowers and suggests that this same approach could be modified to provide protection to whistleblowers.  To establish in an Espionage Act leak case, for example, the government could be required to establish that there was no objectively reasonable basis for the leaker to believe that the public interest in disclosure outweighed national security concerns.  Prof. Kitrosser identifies other factors that could be added to the Espionage Act equation to prevent over-deterrence, such as permitting courts to take into account how and to whom information was disclosed, the extent to which the disclosed activity was illegal, and the public debate prompted by a disclosure as a measure of its public significance.  
The Albury guilty plea underscores the significant risks of not taking some such steps to address the current imbalance, which can choke off information the public vitally needs.  As Jameel Jaffer frequently puts it, imagine the world we be living in today if CIA black sites, the abuses at Abu Ghraib, the government’s techniques of mass surveillance and other vital information disclosed by whistleblowers were all still unknown.
David Schulz is the Floyd Abrams Clinical Lecturer in Law and the co-director of Yale's Media Freedom and Information Access Clinic. You can reach him by e-mail at david.schulz at

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