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Ex-NSA contractor accused of leaking classified military documents contests Espionage Act charges

By RACHEL WEINER | The Washington Post | Published: September 16, 2019

A former National Security Agency contractor accused of leaking classified information on drone warfare is arguing that his actions are protected under the First Amendment, in a challenge to the Espionage Act that has implications for WikiLeaks founder Julian Assange.

"No court has ever decided whether or to what extent First Amendment protections exist under the Espionage Act," his public defenders wrote in a motion filed Monday.

Like Assange, Daniel Hale is accused in Alexandria, Virginia, federal court of sharing government secrets. Jeremy Scahill, a founding editor of The Intercept, published an article series and a book on drone warfare that included information Hale printed on his work computer in 2014.

Leak prosecutions were rare until President Barack Obama took office. President Donald Trump's administration is the first to prosecute the publisher of classified information along with the leaker, a decision some in the Justice Department opposed on constitutional grounds.

A First Amendment challenge to the Espionage Act was rejected by the Fourth Circuit Court of Appeals in 1988, but Hale argues that a decision made when leak prosecutions were almost nonexistent has no bearing here.

Hale argues that use of the Espionage Act to prosecute leakers and journalists goes beyond the intent of the law, passed during World War I amid fear of spies and antiwar activists.

"It is abundantly clear from the history of the Act that it was written with confidence that it would never be used to criminalize actions undertaken to inform the American public," Hale's lawyers wrote. "They all thought it incomprehensible that the Act could or would ever be applied to anyone but spies and saboteurs."

A spokesman for the U.S. Attorney for the Eastern District of Virginia declined to comment.

The Espionage Act provisions under which Hale was indicted were added to the law in 1950, during the Korean War, in conjunction with anti-Communist legislation since deemed unconstitutional.

Along with four charges related to obtaining, retaining and disclosing classified intelligence or national defense information, Hale is also accused of stealing government property. He is set to go to trial next year; if convicted, he faces up to 50 years in prison for the disclosures.

Hale's lawyers maintain that all five charges against him are unconstitutionally broad because of the "chilling effect" on free speech. But they argue one count, of obtaining the information with reason to believe it "would be obtained, taken, made or disposed of by any person" in violation of the Espionage Act, directly implicates the reporter who received the information.

"Criminalizing communication to a journalist substantially burdens a free press in much the same way as criminalizing publication by a journalist," they wrote. His lawyers note that no damage to national security from the disclosures has been alleged, only potential harm.

Hale also argues that the charges against him are redundant, as all four relate to the same 11 documents. The charge of stealing government property, they say in a separate motion, should not apply to sharing information with the news media, although the Fourth Circuit ruled otherwise in 1991.

Assange, who is jailed in London and fighting extradition, is accused of soliciting classified information from former Army intelligence analyst Chelsea Manning.

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