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Official Secrets Acts Must Not Follow U.S. Espionage Act

Courage submitted the following in response to the UK Government’s request for comment
regarding proposed changes to the Official Secrets Acts

The Courage Foundation is an international support network dedicated to protecting and promoting the rights of those who make disclosures in the public interest, including journalists and their sources. We study the effects of national and international laws on disclosure of government and classified documents, and our recommendations regarding proposed reforms to the Official Secrets Acts are based on our experience working with those who have suffered negative and sometimes grave consequences as a result of sincere efforts to inform the public about secret wrongdoing.

Our chief motivation in responding to this call for consultation is to comment on the Commission’s recommendation 33, the introduction of a Public Interest Defence, under which “a person should not be guilty of an offence under the Official Secrets Act 1989 if that person proves, on the balance of probabilities, that: (a) it was in the public interest for the information disclosed to be known by the recipient; and (b) the manner of the disclosure was in the public interest.”
The Law Commission’s proposed formulation of a public interest defence is too narrow to provide a true defence. The burden of proof should rest on the prosecution, not the defence. The restrictions of press freedom in the proposed reforms cannot be said to be necessary in a democratic society, nor can the onerous two-part test, which places the burden on the defence where long prison sentences are a consequence.

It is in the United Kingdom’s interest to allow disclosures in the public interest. Injustice is enabled by secrecy; accountability requires transparency. An uninformed public cannot hold its leaders responsible for misdeeds, and therefore cannot be said to be represented by its government.

Without the addition of a public interest defense, all of the Commission’s other proposed reforms are rendered moot by the fundamental problem at the core of the Acts: by refusing to distinguish between those who make disclosures to inform the public and those who make disclosures for a foreign power, the Acts silence those who would alert the public about criminal activity or other wrongdoing, affording the public no avenue for redress.

This conflation further runs the serious risk of criminalising routine journalistic activity and therefore severely limiting the freedom of the press, an essential component of a functioning democracy. We must consider the United States’ use of the Espionage Act of 1917, which in many ways reflects the proposed reforms to the Official Secrets Act, and which is considered to be a dangerous and regressive piece of legislation that is chilling press freedom.

In the United States some commentators have drawn attention to the U.S. Espionage Act not having a public interest defence. However, that misunderstands the legal context in the United States, in which the First Amendment protections for the the press and public commentary have meant there have not been convictions of the press.  The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The United Kingdom’s press freedom protections under Article 10 are weak in comparison, and conditional, and cannot be considered to adequately act as a counterweight to the proposed reforms to the Act.

The Espionage Act of 1917, like the Official Secrets Acts, was initially introduced to prosecute spies working for an adversary, and it also currently includes no public interest defense in the Act. The use of the Act has been criticised by press freedom advocates and journalism experts as overbroad to the point of abuse, as it has been used in attempts to prosecute clear efforts to inform the public, such as Daniel Ellsberg’s disclosure of documents in 1971 to expose the U.S. government’s mendacious claims about the war in Vietnam. More recently, the Act was used prosecute former U.S. military analyst Chelsea Manning, who disclosed documents detailing war crimes in Iraq and Afghanistan and corruption in global diplomacy.

In her allocution statement in her court-martial in 2013, Ms Manning said, “I wanted the American public to know that not everyone in Iraq and Afghanistan are targets that needed to be neutralised, but rather people who were struggling to live in the pressure cooker environment of what we call asymmetric warfare.” However, Ms Manning was not legally allowed to explain to the court that her disclosure was an attempt to inform the public about government wrongdoing. The only question at issue under the Espionage Act was about the disclosure’s potential effect, regardless of its cause. Although the government testified that it had detected no casualties as a result of her disclosure, the mere potential for harm was enough for Ms Manning to be convicted of several counts under the Espionage Act, and she was subsequently sentenced to 35 years in prison, although her sentence was commuted after seven years.

Whistleblower advocates and press freedom monitors decried the conviction as an extreme overreach and a sharp departure from the Act’s intended use. The conviction and unprecedentedly harsh prison sentence instilled a chilling effect on government employees who witness wrongdoing and would wish to bring it to light. The U.S. government typically responds to such criticisms by pointing to official channels for concerned employees to report malfeasance.

However, as a 2017 report from the Government Accountability Office on how whistleblower allegations are handled by the Department of Defense Inspector General showed, “From fiscal year 2013 to fiscal year 2015 DoD IG dismissed without investigation 91 percent of the civilian, contractor, and subcontractor complaints it received.”

Ignoring properly introduced complaints leaves no serious avenue for redress, compelling those who witness evidence of wrongdoing to turn elsewhere to make their concerns known, such as to investigative reporters. But rather than reform the Espionage Act to protect public interest disclosures, which would allow whistleblowers to safely come forward without fear of reprisal, under the previous administration the U.S. government began to use the Act even more broadly, this time against the act of receiving, possessing and publishing documents.

The New York Times and the Washington Post editorial boards, The Guardian and virtually every major human rights organization are squarely opposed to the application of the Espionage Act against the recipient of government documents because of the chilling effect it is already having on their own reporting. Investigative journalist Bob Woodward, for example, admits to routinely soliciting, obtaining, receiving, and publishing highly classified government documents. A coalition of leading press freedom experts have warned that this application of the espionage act “threatens press freedom because much of the conduct described in the indictment is conduct that journalists engage in routinely—and that they must engage in in order to do the work the public needs them to do.”

U.S. politicians have recognised these dangers, and in March 2020, Representative Ro Khanna and Senator Ron Wyden introduced the “The Espionage Act Reform Act,” which explicitly would have ensured, “Journalists who solicit, obtain, or publish government secrets are safe from prosecution.” Rep. Khanna said about the Reform Act,

“The Espionage Act was written over 100 years ago to protect our country against spies, not journalists. The Trump Administration has manipulated it to crack down on reporters. My bill with Senator Wyden will protect journalists from being prosecuted under the Espionage Act and make it easier for members of Congress, as well as federal agencies, to conduct proper oversight over any privacy abuses.”

This proposed Reform Act was not voted on and was allowed to expire in early 2021.

The proposed reforms will open the floodgates to other countries using their equivalent legislation in a similar manner and will have a deleterious effect on press freedom  at home, and globally, and put dissidents and exiles living in this country at risk of extradition and prosecution abroad.

To defend media freedom, the United Kingdom’s government must reform the Official Secrets Acts to avoid repeating the gravely dangerous consequences of the unrestrained use of the Espionage Act in the United States. By introducing a strong public interest defense to the Official Secrets Acts, the U.K. government would signal to its citizens that it supports their right to know, and it would signal to the world that transparency and accountability is a signal of strength, not of weakness.