How Many Whistleblowers Were Charged Under the Espionage Act?

In the past ten years alone, six individuals were charged with crimes against the Espionage Act, a federal law existing since 1917, for leaking documents or other information on national security to the press. The most prominent example is WikiLeaks founder Julian Assange. Assange was indicted on 18 counts related to the Espionage Act in May 2019 and, after spending five years in the maximum security Belmarsh prison in the United Kingdom, signed a plea deal with the United States, allowing him to return to Australia a free man. As our chart shows, charging individuals leaking confidential information about U.S. institutions to the press has seen a dramatic uptick in both the Obama and Trump presidencies.

Before 2009, five individuals providing secret information to the press were indicted in four cases under the Espionage Act. Only one individual in one case was convicted: Civilian Navy analyst Samuel Morison was convicted of handing out satellite imagery to British military magazine Jane's Defense Weekly in 1985, which resulted in a two-year prison sentence, according to New York Times reporting. As a round-up of cases until 2013 by ProPublica shows, the Pentagon Papers containing classified information on the Vietnam War led to the indictment of analysts Daniel Ellsberg and Anthony Russo. The charges resulted in a mistrial due to new information coming to light during the Watergate scandal investigation.

The first instance of using the Espionage Act to charge a press leaker was in 1957 following Army Colonel Jack Nickerson revealing "the results of an Army missile program to the press in an effort to demonstrate that Defense Secretary Charlie Wilson had acted improperly in rejecting the Army missile in favor of an inferior Air Force missile manufactured by GM, Wilson’s former employer", according to a 2021 article by Heidi Kitrosser and David Schulz UNC School of Law First Amendment Law Review.

After Barack Obama took office, the number of cases trying press leakers on the same level as foreign agents increased at a rapid clip. Former Washington Post editor-in-chief Leonard Downie Jr. detailed the Obama administration's treatment of individuals providing secret documents to the press in 2013 in a special report for the Committee to Protect Journalists (CPJ). "The administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration, when I was one of the editors involved in The Washington Post’s investigation of Watergate", wrote Downie Jr. "The 30 experienced Washington journalists at a variety of news organizations whom I interviewed for this report could not remember any precedent."

The most high-profile cases were those of Chelsea Manning, who was indicted and convicted in 2010 and released seven years later after President Obama commuted her sentence, and Edward Snowden, whose indictment took place in 2013 and is the only case still pending resolution due to Snowden living in Russia, which has no extradition agreement with the United States.

While the Biden administration so far hasn't indicted or convicted any individuals for leaking secret information to the press under the Espionage Act, six cases were tried during the presidency of Donald Trump between 2017 and 2021. These include the aforementioned charges against Julian Assange. Other cases are those of Air Force veteran Reality Winner "sending journalists a top-secret NSA intelligence report about Russian attempts to interfere in the 2016 election" or Daniel Hale being "charged with leaking classified information about drone warfare and other counterterrorism measures to a reporter", both according to the U.S. Press Freedom Tracker.

The Espionage Act was implemented after the United States entered World War I in 1917 and "broadly sought to crack down on wartime activities considered dangerous or disloyal, including attempts to acquire defense-related information with the intent to harm the United States, or acquire code and signal books, photographs, blueprints, and other such documents with the intention of passing them to America’s enemies", according to the Office of the Director of National Intelligence.

While the article containing this definition mentions cases like those of Julius and Ethel Rosenberg, it leaves out the mounting criticism of recent years due to its vague wording and being wielded as a tool against whistleblowers even when public interest allegedly outweighs security concerns. "Without reform to the Espionage Act that lets a court hear a public interest defense – or a challenge to the appropriateness of government secrecy in each particular case – Snowden and future Snowdens can and will only be able to 'make their case' from outside the United States", wrote acquitted whistleblower Daniel Ellsberg in an opinion piece for the Guardian in 2014.