Secrecy News

A Leaker’s Motives Are Irrelevant, Gov’t Says

Disclosing classified information without authorization is a crime even if the leaker had good intentions and was motivated by a larger public interest, the government said this week. Therefore, any mention of the purpose of the disclosure should be ruled out of bounds in trial, government attorneys argued.

The issue arose in pre-trial motions in the case of USA v. Daniel Everette Hale. Hale is a former NSA intelligence analyst and NGA contractor who is accused of having provided classified documents concerning US military drone programs to The Intercept.

“The defense likely will want to argue that, even if the defendant engaged in the conduct alleged, he had good reasons to leak the documents at issue and is being unfairly prosecuted under criminal statutes that carry significant penalties. Any such arguments, however, would be entirely improper,” the government said in a motion to exclude such material.

“Evidence of the defendant’s views of military and intelligence procedures would needlessly distract the jury from the question of whether he had illegally retained and transmitted classified documents, and instead convert the trial into an inquest of U.S. military and intelligence procedures.”

“The defendant may wish for his criminal trial to become a forum on something other than his guilt, but those debates cannot and do not inform the core questions in this case: whether the defendant illegally retained and transferred the documents he stole,” the September 16 government motion said.

The government said the defense should also be barred from arguing that a different perpetrator committed the charged crimes, from claiming that “everybody leaks classified information,” and from informing the jury that if convicted the defendant could go to prison.

“Any punishment or consequence the defendant might suffer is irrelevant to the factual issues and, therefore, inadmissible,” the government motion said.

Exclusion of a “good motive” or public interest argument is consistent with past practice in previous leak trials under the Espionage Act dating back to the case of Daniel Ellsberg and the Pentagon Papers, as writer Tom Mueller recalled in his new cultural history of whistleblowing Crisis of Conscience: Whistleblowing in an Age of Fraud (p. 111).

In Ellsberg’s 1973 trial, “Prosecutors had also insisted, and [Judge William] Byrne had agreed, that the jury be instructed not to consider the larger questions raised by the defendant’s acts: the morality of the Vietnam War, the public’s right to know, the freedom of the press, or the Supreme Court’s recent First Amendment decision in favor of the [New York] Times,” Mueller wrote.

“Ellsberg still remembers his shock when the prosecution prevented him from explaining his motives for releasing the papers. When his lawyer asked him straightforwardly why he’d done it, a prosecutor objected that the question was ‘immaterial,’ and Judge Byrne sustained. ‘My lawyer was stunned,’ Ellsberg remembers. ‘He told Judge Byrne that he’d never heard of a case where a defendant wasn’t allowed to tell the jury why he’d done what he did. “Well, you’re hearing one now,” Byrne said’.”

“This restrictive interpretation of the Espionage Act presaged subsequent . . . prosecutions after 9/11, which forbade Chelsea Manning, Tom Drake and other national security whistleblowers from explaining why they blew the whistle,” Mueller wrote.

Defense challenges to secrecy policy and classification decisions should also be prohibited, the government argued in a separate motion in the Hale case.

“It is not proper for the Court or the defense to challenge a government agency’s classification determination. Such determinations are exclusively a function of the Executive Branch. It follows, therefore, that the defense cannot challenge the classification of the documents at issue in this case or make general allegations of misclassification of information within the U.S. government at large,” the government said.

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For its part, the defense argued this week that the case against Hale should be dismissed because the Espionage Act as applied here infringes impermissibly on First Amendment freedoms.

“Now that the Act is used regularly against those who leak for no purpose other than informing their fellow citizens about their own government, its chilling effect is fatal to its continued viability. Moreover, its broad terms allow viewpoint-based prosecutions of the press and those whose actions are necessary for the press to freely operate.”

“Accordingly, the provisions charged here should be voided as facially overbroad, . . . and the Indictment should be dismissed,” the defense motion said (WaPoAP).

The parties will respond to each other’s motions in weeks to come.

11 thoughts on “A Leaker’s Motives Are Irrelevant, Gov’t Says

  1. As usual, the government is overreaching and even in their language being very tyrannical and presumptuous!

    “Evidence of the defendant’s views of military and intelligence procedures would needlessly distract the jury from the question of whether he had illegally retained and transmitted classified documents, and instead convert the trial into an inquest of U.S. military and intelligence procedures.”

    I’m sick of Judges instructing Jurors how to intemperate testimony and what to consider in trials. This is done way too much and so much, in fact, we forget that the Jury is supposed to consider the wider implications of the case AND in fact whether the defendant’s decision to blow the whistle was for the greater good of us all!

    “The defendant may wish for his criminal trial to become a forum on something other than his guilt, but those debates cannot and do not inform the core questions in this case: whether the defendant illegally retained and transferred the documents he stole,”

    We need to have a very serious conversation about judges and prosecutors going too far in their roles “instructing” Juries.

    1. An ethical jurist would be forced to force a mistrial under such circumstances. It’s not assault to shove someone out of the way of a moving car and it’s not a crime to whistleblow because any law attempting to criminalise acts which contribute to the public good are illegal laws.

  2. Seems among other things to beg the question “is the judiciary bound by a secret obligation to uphold the classification scheme?”.

  3. So 1st Amendment free speech rights do not/not extend to speech about improperly classified U.S. war crime data?

    Land of the free?

  4. Using the espionage act on American Citizens reporting the crimes of our government is glaring fascism and shows how the government uses our corrupt legal system to cover up its crimes. The people holding government power and breaking the law are the ones that need to be prosecuted. Not whistleblowers.

  5. It’s time we spread the word about jury nullification (fija.org) every chance we get. Make it part of your DNA and fight this bullshit. Jury nullification was used to free the Malheur Wildlife Refuge terrorists and can be used to fight all government over reach.

  6. Protection(s) for so called ‘whistleblowers’ should not have any type of stipulation(s) attached to it/them. Hence, the term ‘whistleblower’. Otherwise, what’s the use of having this so called ‘Whistleblower Protection Act?

    The Whistleblower Protection Act of 1989, 5 U.S.C. 2302(b)(8)-(9), Pub.L. 101-12 as amended, is a United States federal law that protects federal whistleblowers who work for the government and report the possible existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety. A federal agency violates the Whistleblower Protection Act if agency authorities take (or threaten to take) retaliatory personnel action against any employee or applicant because of disclosure of information by that employee or applicant.

  7. This is a Republic whose We the People have a basic tenet, The government that serves us has to be transparent, its operations open to public scrutiny. Sealing documents and “official” state secrets is the realm of British monarchy, royalty and all that rot.

  8. If Gov’t employees won’t expose (report) wrong-doings by their own members (who witness the wrong-doing) then the Gov’t must recognize the value of public citizens exposing Gov’t ‘mistakes’ …

  9. Apparently, there was an Obama era executive order which decreed that a document could not be classified to cover up criminal actions, embarrasment, prevent competition, etc.
    As of that order, if not earlier, it *IS* “proper for the Court or the defense to challenge a government agency’s classification determination. Such determinations are exclusively a function of the Executive Branch” — and the executive branch has explicit boundaries for those determinations.

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