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I may have been imprisoned, but there I was in Italy trumpeting the call for awareness and reformation of the Espionage Act.
I had a palpable sense of nerves approaching the day I was to travel to Perugia for the International Journalism Festival. I was invited by Kathleen McClellan and Jesselyn Radack of WHISPeR who were invited to present on the impact of leak prosecutions on the free press. I was certainly honored to be asked, but those emotions of gratitude were quickly becoming overcome by not very slight feelings of dread.
This was to be my first trip abroad in a very long time, certainly the first time since being released from prison. Since January 2018, I had taken several trips domestically, but traveling abroad was a whole different animal for me. No one is ever told they are on a “no fly” list; you find out when it’s too late to do anything about it. Funny how the government is insistent on keeping those whose rights are being taken away ignorant of the fact that their rights have been taken away. Not having tested my viability to leave the country, I had to wonder if my right to travel had been restored like my right to vote. Of course, I had already had such an experience.
After being released in 2018, I immediately started taking whatever steps I could to regain at least some of what I had lost after being convicted of violating the Espionage Act and spending time in prison. One thought I had was that having a passport would give a sense of freedom I hadn’t had throughout the long, exhaustive legal ordeal. At least knowing I had the ability to travel like I used to was worth whatever difficulties I had to go through to get to that point. Always skeptical, I did exhaustive “research” (ala Google) and I confirmed with my probation officer about my ability to apply for a passport. I was told that there were no “holds” on my ability to get a passport. Someone forgot to tell the passport office at the Department of State.
I wasn’t on that stage just to scare the audience about how horrible it will be to be charged under the Espionage Act, I was there to tell them that if I could stand up against it, so can the rest of the world.
Having not received my passport after the stated waiting period (and actually giving it an additional week), I reached out to the passport office to inquire about the status of my passport. I was told that there was a “hold.” The subsequent unsigned letter from the State Department was even less helpful. It made an outdated reference to an ancient court order (going at least back to 2011 when I was arrested) requiring me to gain permission to travel. Obviously the State Department opted to remain ignorant of my status and denied my application. But, they did graciously inform me of an appeals process and the fact that the application fee I paid was nonrefundable.
I guess I could have left it alone and resolved myself to not having a passport, not having even a scintilla of the freedom I once had, but I’ve never been one to settle. I once again reached out to my probation officer and let her know that someone somewhere still considered me a threat to national security. It took months of back and forths with various probation officers, a motion filed with the court to release my old passport from its vault and a blessing that I could get a new one, another application (and fee), unknown State Department officials, and inestimable patience, but I finally received my passport in the mail in mid-2019. It took another struggle, but I prevailed.
Back to the present, even with a passport, I never thought I’d be able to take a trip like this ever again; an exhaustive legal ordeal and prison can drain possibility out of your spirit. But, life is funny. Just when I was thinking nothing that I had would be possible again, doors from unexpected directions open. I was going to Italy!
I was absolutely nervous about making the trip to Italy, I didn’t even try to convince myself otherwise. I couldn’t help wondering, despite being able to get a passport, if I was on some sort of “no fly” list or if there remained some sort of “hold” on me that would prevent me from leaving the U.S. The time was fast approaching to see what my status was.
St. Louis Lambert International Airport (STL) is rarely busy, and I was thankful to have that convenience instead of a long wait before getting bad news. The first time I had to present my passport was when checking my bag. I nervously handed it over trying to gird myself for a quizzical look from her if something were to pop up on her screen. She looked at my document and handed it quickly back to me. “Oh no, here it comes” pounded through my mind, but it was quickly tempered when she noted that I hadn’t signed my passport. What an idiot! I went through so much to get the damned passport, I forgot to sign it!
That self-imposed fiasco was brief, and I felt could be a possible prelude of what was to come because I still had security to go through. Despite my apprehensions, there were no issues with security in STL nor boarding the international flight in Chicago. I never felt so grateful being able to settle my 6’4” frame into a cramped coach seat on a fully packed flight in my life.
The amount of relief I felt when actually sitting on the plane awaiting departure was tremendous. But, just when you feel relief at passing one obstacle, you can’t help but anticipate the next one. The imagination can be a killer. Shortly into the eight-plus hour flight, I was racked with whether I would be allowed into Italy. In addition, even if I was allowed into the country, I was reminded of what happened to fellow Espionage Act brother in arms, Thomas Drake. In 2021 he was slated to speak at a security conference in Australia only to be “disinvited” at the last minute. Whomever made the decision, and for whatever reason, his voice was effectively silenced, at least at that conference. I just had to continually tell myself that nothing like that had occurred at any of my other speaking engagements and it wasn’t going to happen on this trip.
It wasn’t until I checked into my hotel room that I let out one of the biggest exhales of my life. Passport control at Fiumicino airport in Rome was a non-issue, I was herded through just like everyone else and no blaring alarms went off. For the first time in a very long time, I felt not so trapped in a country that didn’t want me to serve. Being outside of the U.S., I felt like I was once again able to experience and be a part of the bigger world out there. With the time I had, I was eager to be in full tourist mode; I wanted to see everything. Perugia is a beautiful city full of stunning architecture and a vibrant culture that was a wonderful experience for me. With every step I took, I had to remind myself that I had spent two and a half years in prison, but that I certainly wasn’t there anymore.
Finally, down to business. I was in Italy to speak at the International Journalism Festival about the impact of leak prosecutions; mainly I would tell the corps of journalists from all over the world about what it means to be targeted and tried under the Espionage Act.
It was clear that the festival, which was in its 24th running, was going through a bit of Assange-fatigue, as not many sessions even touched on that pressing subject. I was told that there had been a focus on Julian Assange in a previous running of the festival and they wanted subsequent runs to center on other areas. Even though the main theme of the festival was artificial intelligence and its implications for freedom of the press, I could sense a pallor of apprehension and uncertainty looming over just about every journalist I interacted with. Speaking with the journalists there, I was reminded of my recent uncertainty about traveling outside the U.S. Though they were hopeful for a non-issue when ultimately confronted with the prospect of being targeted or stopped by the Espionage Act ala Assange, they couldn’t help but fear the worst. Much like if I had been stopped from either leaving the U.S. or entering Italy, once the worst happens, there may not be much that can be done about it. If Assange is ultimately extradited to the U.S. to face the Espionage Act, that will most definitely be the worst thing to happen to not only the journalists at the festival, but journalists and press freedom anywhere in the world. Those journalists at the festival were standing in the security line just like me, wondering if their rights were going to be taken away and not allowed to pass.
Surprisingly, I felt a hint of the same false sense of security that has permeated U.S. mainstream media in regards to Assange. They don’t see Assange as a journalist. They engage in a self-deception that they have nothing to fear from the Espionage Act. Endemic with Espionage Act and whistleblower prosecutions is character assassination that puts the focus squarely on the revealer and away from the government wrongdoings and illegalities revealed.
Prior to the festival, I would have found it hard to believe that the press out in the world wouldn’t see through that smokescreen. What I learned is that it wasn’t so much that the festival attendees in Italy didn’t see Assange as a journalist, they didn’t want to see him as just a journalist. He’s something in a potentially related, but an altogether different category. One of the best ways to deal with a potentially dangerous situation is to imagine that it can’t or won’t happen to you. I of course didn’t want to view myself as one of those who get put on no-fly lists, but the reality was that it didn’t matter how I viewed myself. Persecution is the sole province of the persecutor. The overall determining factor for me was and has been how my government saw me. It viewed me as a threat to national security in bringing an employment discrimination suit against the CIA and portrayed me the same way by falsely accusing me of espionage. Whether the U.S. government considers Assange a journalist or not is not the point. He will be potentially extradited and tried under the Espionage Act because they view him as a threat because of what he exposed. And that was a point I imagined trumpeting at the festival, imploring the festival attendees to “wake up!”
But, that was not my only purpose at the festival. Part of what I wanted to convey is that despite the terrible ordeal I went through and what Assange is currently going through at the hands of a vengeful U.S. government wielding the Espionage Act to quash dissent and silence whistleblowers, there is still hope that something can be done. I wasn’t on that stage just to scare the audience about how horrible it will be to be charged under the Espionage Act, I was there to tell them that if I could stand up against it, so can the rest of the world. I may have been imprisoned, but there I was in Italy trumpeting the call for awareness and reformation of the Espionage Act. No aggressor and no government, regardless of the power wielded, is beyond reproach. With Assange, the U.S. is threatening to assume a global reach in its ability to silence dissent. But, the more all of us, and especially journalists who can provide avenues of awareness and accountability for brave whistleblowers, stand up against unjust laws like the Espionage Act, not only will change be possible, it will be inevitable.
I don’t know if my message had any impact; the shock value alone of my ordeal can, unfortunately, be the real attention-getter. Regardless, my experience was further affirmation that, even though I went through hell, I would not be defeated. At the least, I wanted to be an image of perseverance and resilience that maybe could be a force, however slight, for awareness and change.
Our tribulations are so unique that Donald and I could legitimately form a support group of two to lament, share, and grow from our experiences being indicted under the Espionage Act.
It doesn’t take much to shock me, but that former President Donald Trump has been charged with violating the Espionage Act has me unequivocally astonished. I can’t say that I have many, if any commonalities with current or former presidents, and I certainly take no pride in the shared tribulation I have with Donald. It’s not so much the fact of someone being charged with violating the Espionage Act (a sad reality that is only increasing), it is that a former president has been so charged.
This development has me thinking of the profound shock expressed as, “Et tu, Brute?” by Shakespeare’s Julius Caesar as he was being assassinated by the Roman Senate conspirators. Whereas Caesar’s shock was founded upon being betrayed by one he trusted, mine is founded upon the seeming, at least initial, equal application of the Espionage Act rather than any associative sense of brotherhood. That Donald was charged with the same crime I was alleged has me pondering, “Et tu, Donald?”
But, just because there can be the perceived equal application of the Espionage Act with Trump’s indictment, it doesn’t mean the law and its application are legitimate. First and foremost, the Espionage Act is an unjust law that should be abolished. Its use to target and persecute whistleblowers like Daniel Ellsberg, Reality Winner, and John Kiriakou among others, essentially as spies, is overbroad and clearly beyond its original intent. I have to agree with Trump’s attorney who said that the Espionage Act charge is “ludicrous.” The Act’s non-specific language creates an overly broad net that the government and the Department of Justice casts, unfettered in any direction it so chooses. How the Espionage Act is being used is ludicrous, but considering the DOJ’s track record in implementing the outdated law, it would have had a hard time NOT indicting Trump under it.
Given how Donald has been treated, the similarities between he and I after being indicted under the Espionage Act are really quite minimal; his criminal justice system is actually respectful to him as a human being.
The similarities I and Donald share do not end with being indicted under the Espionage Act. Both his 38-count and my 10-count indictments concern elements of our alleged unauthorized conveyance of national defense information related to Iran. Iran has been an issue of national defense, actual or otherwise, since at least 1979, and U.S. government hypersensitivity regarding that nation is as constant as the Northern Star. For me, I was accused of leaking information related to Operation Merlin, a flawed CIA operation designed to thwart Iran’s nuclear weapons ambitions. For Donald, part of his indictment details his discussing a “highly classified” U.S. plan of attack against Iran.
For comparison’s sake, the allegations against Trump are absolutely and significantly worse than anything I was alleged to have done. As president, Trump held the highest office of the land with essential authority over all classified information in the government. I think it can be safely assumed that the documents he mishandled either are or can be labeled as being related to national defense, which is usually at the heart of Espionage Act charges. His criminal mishandling of classified information can and should be considered a threat to national security given his former position and continued influence. Regardless, our tribulations are so unique that Donald and I could legitimately form a support group of two to lament, share, and grow from our experiences with national defense as it relates to Iran and being indicted under the Espionage Act.
Though there are definite similarities, I have to admit to no illusion that what Donald is experiencing bears any real-world resemblance to mine. Though having federal agents descend upon and search anyone’s home is an abrasive affair, and that was certainly my experience, it wasn’t so for Donald. In what was comparatively a congenial affair, the FBI convened at Donald’s resort club, Mar-a-Lago, and seized 11 sets of documents, some marked as classified, TS, or SCI, which are obvious indicators for top secret or sensitive compartmented information. No such documents were retrieved from my home.
Our arrests were also completely different. Donald was allowed to surrender himself to law enforcement and was placed under arrest. My experience was not as congenial. I was lured to my place of employment and ambushed by the FBI. I still feel the sting of that first instance of being shackled with handcuffs. Donald was spared that treatment. He was also spared having to spend any time behind bars, separately from his family and loved ones.
Donald is now, or should be, under the supervision of the federal probation office. I don’t know the terms of his supervision, but I do know there is at least one term that I’m quite certain he is fulfilling. Once I was released from confinement, the probation office levied numerous requirements on me for the privilege of not having to stay in jail pending trial. One of those requirements was that I had to look for work. I had, of course been fired by my then employer, but a condition levied by the honorable judge Leonie Brinkema of the Eastern District of Virginia in the 4th Judicial Circuit was that I could not return home, I had to stay in Virginia, a state I hadn’t lived in for more than a decade. I certainly tried, but of course I couldn’t find a job in a state where I didn’t live and had no permanent residence. As a result, I endured much grief and the threat of being returned to the Alexandria jail. Unlike me, I do believe Donald has been able to fulfill this requirement, if it has been levied upon him. Donald is running for president. I can’t see much argument being put up that he’s not actively seeking employment. If I had only known, it would have saved me the constant chastising from the probation office and prosecutors about finding a job.
Oh, and I certainly have to wonder if Donald is being drug tested. The honorable Brinkema in my case stated that she always requires drug testing, despite the fact that there were no indications of drug use in my past. The judge in Donald’s case should make the same requirement to match the other indignities I and anyone else who has been charged with violating the Espionage Act has had to endure.
This is all to say that I don’t really recognize the criminal justice system that Donald is currently dealing with. We were both indicted under the same law, but that is where the similarities end. I have not been able to say “You too, Donald?” with regard to his actual treatment after being indicted under the Espionage Act.
Given how Donald has been treated, the similarities between he and I after being indicted under the Espionage Act are really quite minimal; his criminal justice system is actually respectful to him as a human being. However, there is one aspect of the criminal justice system I faced that Donald should, if not must, face, and that is prison. My experience and that of many others is that you cannot and in fact are not allowed to defend yourself against the Espionage Act. Donald should also face the same impossible task.
From its inception, the Espionage Act has become, through years of judicial deference and political indifference, a strict liability law. Black’s Law Dictionary defines a strict liability law as:
…a legal concept that holds a defendant responsible for their actions regardless of their intent at the time of the action. Strict liability is based on a duty to compensate for harms caused by an activity or behavior, rather than proof of negligence or intent to do harm.
The Espionage Act is a law that assumes guilt without proof. No whistleblower who has been charged under the Espionage Act has been able to defend their action with disclosures about why they disclosed alleged classified information. There is no such affirmative defense available to the accused. In addition, and even more effective against whistleblowers, the government is not required to prove the defendant acted with any intent to harm the U.S. national security or aid a foreign power. Whistleblower or not, the Espionage Act is a law that no one can defend against.
There have been few instances of an actual trial when the Espionage Act has been charged. For example, the Rosenbergs in 1950 were convicted, Ellsberg’s case was dismissed due to government misconduct, and Thomas Drake was allowed to plead to lesser charges after similar misconduct. Indeed, most, if not all others result in a guilty plea and that in itself should be a testament to the unfettered power the government has when charging anyone with violating the Espionage Act. This is most likely the reason why the typical result in Espionage Act indictments is a plea and prison. Most individuals charged with violating the Espionage Act have been whistleblowers trying to serve the country by revealing government illegalities (i.e. John Kiriakou and the torture program); Trump cannot claim any such motivation, not that it would matter. His mishandling of classified documents was completely self-serving and with a very real potential for those documents to wind up in the hands of purported enemies of the state. The overriding question has to be how Donald will defend himself against the Espionage Act when clearly it is not possible.
True, my experience is and has been an exception to the unfortunate rules of pleas or government misconduct, but exercising my right to a trial to defend myself against wrongful charges was no match against the Espionage Act. I faced a vengeful government with a free hand to try me without having to prove anything other than the fact that I was charged. Evidence, a fair process, a fair and unbiased investigation and prosecution, and most importantly truth were of no concern, I was found guilty and sentenced to prison. Even a public trial, which is supposed to be the forum of innocence until proven guilty and where guilt is supposed to be proven beyond a reasonable doubt, is but a mere inconsequential nuisance to the Espionage Act.
If my “Et tu, Donald?” shock is to be validated, that is also the only real question left when it comes to Donald and his indictment. There really is no reason for the government to seek anything other than prison time for Donald. If Donald is going to face the same criminal justice system under the Espionage Act is yet to be seen, despite the indications that his status does not place him above the law.
If Donald is to face the same legal system as I was persecuted under, the only remaining “Et tu, Donald?” for me will be when he is sentenced to prison. He has been charged with violating the Espionage Act. The end result must be a prison sentence for him as it was for me and the others who have been similarly charged. The government could have taken the easy way out and not charged him with violating the Espionage Act as it did with General David Petraeus (among other honorable men) who also should have been a shining example of an equal application of the law, but at this point, it cannot. The dogs of war have been unleashed and all that is left is for Donald to be carved like a dish fit for the gods, much as Caesar was.
His life and legacy are reminders that individual acts of moral courage depend on examples set by others, and they have the potential to spark more, far into the future.
In 1971, when Daniel Ellsberg arrived at a federal court in Boston, a journalist asked if he was concerned about the prospect of going to prison for leaking a 7,000-page top-secret history of the Vietnam War. Ellsberg responded with a question of his own: “Wouldn’t you go to prison to help end this war?”
The classified documents Ellsberg released to The New York Times and 18 other newspapers were quickly dubbed the Pentagon Papers. They exposed more than two decades of government deceit about U.S. involvement in Vietnam, from 1945 to 1968.
Ellsberg died June 16, 2023, three months after announcing that he had been diagnosed with terminal cancer. To millions of Americans who opposed the war, his whistleblowing was an act of patriotism – but millions of others regarded it as treason. In Ellsberg’s own papers at UMass Amherst, where I teach history and direct the Ellsberg Initiative for Peace and Democracy, you can read hundreds of letters to him from ordinary citizens expressing both extremes: the highest possible praise, and vitriolic, often antisemitic, hostility.
How a young war planner became a peace activist is one of the most striking conversion stories in American history. But Ellsberg’s political and moral transformation did not happen in a vacuum.
How a young war planner became a peace activist is one of the most striking conversion stories in American history. But Ellsberg’s political and moral transformation did not happen in a vacuum. It reflected a titanic shift in public attitudes about the Vietnam War. The massive anti-war movement inspired and reinforced Ellsberg’s dissent – and, in turn, his example has emboldened activists and whistleblowers in the decades since.
Once a fervent Cold Warrior, Ellsberg joined the Marine Corps in the mid-1950s, earned his doctorate in economics from Harvard and in 1959 became a nuclear war analyst for the Rand Corp., a think tank that, at the time, was funded mostly by the Air Force. In 1964, he was one of the brainy young analysts, dubbed “whiz kids” by the media, that Defense Secretary Robert McNamara recruited to the Pentagon.
Throughout his 20s and early 30s, Ellsberg believed that serving the president was a “knightly calling,” even if it required lying to the public. So how did he come to believe that loyalty to truth-telling superseded loyalty to the chief of state?
From 1965 to 1967, Ellsberg went to Vietnam for the State Department, believing the war was a challenging but necessary part of a global struggle to contain communism. Yet he became deeply disillusioned, convinced that the war could not be won. He was particularly disturbed by indiscriminate U.S. bombing and shelling, most of it on South Vietnam, the land the U.S. claimed to be protecting. About 20,000 American lives had already been lost, and roughly a million Vietnamese people had been killed, about half of them civilians. By the war’s end eight years later, 58,000 Americans and 3 million Vietnamese had died.
By 1968, Ellsberg was trying to persuade U.S. leaders to seek a negotiated end to the war. On his own time, meanwhile, he was beginning to meet anti-war activists who advocated a bottom-up effort to demand immediate U.S. withdrawal.
One of them, a Gandhian pacifist named Janaki Natarajan, convinced Ellsberg that he should study leading advocates of nonviolent resistance, such as Martin Luther King Jr., Henry David Thoreau and Barbara Deming. To this day, one of Ellsberg’s favorite quotations comes from Thoreau’s “Civil Disobedience”: “Cast your whole vote, not a strip of paper merely, but your whole influence.”
But most galvanizing for Ellsberg were the Pentagon Papers, which he helped compile for McNamara. Full of technocratic euphemisms for lethal policies, the documents convinced him that the entire history of U.S. involvement in Vietnam was marked by deception: that it was an aggressive counterrevolution that denied the Vietnamese people the right of self-determination, disguised as a battle for democracy.
Ellsberg had first viewed the Vietnam War as a just cause to be won, then as an unwinnable stalemate to be gradually abandoned. By late 1969, however, he saw it as an immoral war to be ended unilaterally and immediately.
Millions of Americans had already come to that conclusion. Back in 1965, in fact, Ellsberg’s future wife, Patricia Marx, agreed to a first date only if it included an anti-war demonstration in Washington.
Just as he finished reading the Pentagon Papers, Ellsberg attended a War Resisters League conference that proved pivotal to his decision to leak the documents. There he met a few of the 3,250 young Americans who were sentenced to up to three years in prison for resisting the draft. Deeply moved by their courage, Ellsberg asked himself what he could do if he were willing to risk prison and his career.
A month later, with help from his friend and Rand colleague Anthony Russo, Ellsberg began photocopying the Pentagon Papers.
For the next year and a half, Ellsberg tried to get anti-war members of Congress to put the documents into the congressional record and hold hearings. None was willing, so he eventually offered them to war correspondent Neil Sheehan at The New York Times – the first newspaper to report on the papers’ revelations.
Public interest was scant, however, until President Richard Nixon began attacking the press and Ellsberg. Although the Pentagon Papers did not include Nixon’s time in office, the White House feared that Ellsberg might leak more documents – especially about Nixon’s 1968 effort to sabotage the Vietnam peace talks to improve his odds of winning the presidential election.
The government indicted Ellsberg on a dozen felony counts with a possible 115-year prison sentence. He was the first American ever criminally charged under the Espionage Act of 1917 for disclosing classified documents to the press and public rather than to a foreign agent or nation.
Ellsberg was spared prison. Late in his 1973 trial, Watergate prosecutors discovered that the White House had authorized crimes against him, including a break-in at his psychiatrist’s office, in a failed search for incriminating information. The judge had little choice but to declare a mistrial.
Ellsberg was a free man, but the personal cost of his dissent was severe. He lost many friends and had to forge a new career as a writer and lecturer. For more than five decades he has been an activist and has been arrested for nonviolent civil disobedience some 80 times on behalf of peace, nuclear disarmament, government accountability, and First Amendment rights.
In early March 2023, Ellsberg made public a letter to friends and supporters announcing that he had only months to live. He closed by thanking fellow activists whose “dedication, courage, and determination to act have inspired and sustained my own efforts.”
Ellsberg’s life and legacy are reminders that individual acts of moral courage depend on examples set by others, and they have the potential to spark more, far into the future. As Ellsberg often said, “civil courage is contagious.”