The Espionage Act is a United States federal law enacted in 1917, a period John Kiriakou has described as “one of the darkest periods in American history” for civil liberties.[1] The law was written to combat German sabotage during the First World War — championed by President Woodrow Wilson and, per Kiriakou, “written in 1917 to combat German saboteurs.”[1][2] It was meant, Kiriakou says, to go after real spies who steal secrets for foreign countries — “it was never meant to be an iron fist against journalists and against whistleblowers.”[3] In the decades since, Kiriakou says, it has become the government’s principal instrument against national-security whistleblowers, and its use accelerated sharply under the Obama administration.
A law never updated for the classified-information era
Kiriakou identifies two features of the act that he considers central to why it has proven so dangerous as a tool against whistleblowers. First, it has never been meaningfully updated in more than a century — he says it has been only marginally changed twice since 1917, in the early 1950s and again in 1996 under the Clinton administration, both times as small technical fixes rather than genuine reform.[4] Second, it does not mention the words “classified information” anywhere in its text, because the U.S. classification system did not exist when the law was written in 1917.[5] It refers only to undefined “national defense information” — meaning, in practice, that the secret being protected is “whatever the Justice Department says it is.”[6] Kiriakou says his own defense lawyers agreed with his assessment that the act is “unconstitutionally broad and unconstitutionally vague.”[2] He argues the act should be scrapped and rewritten to include an affirmative-defense and criminal-intent standard, so that a person who lacked intent to harm national security, or acted for legitimate legal reasons, or caused no provable harm, would not be prosecuted — and he cites George W. Bush’s own estimate that roughly 75% of classified documents are improperly classified in the first place, illustrating chronic government over-classification.[7][8] Separately, he notes the minimum sentence under the act is five years, the common punishment is fifteen years, and in some cases espionage is punishable by death.[9]
The act allows no public-interest defense: a defendant may not argue that a disclosure served the public good, only whether the information was passed to someone not entitled to receive it. Kiriakou says federal district courts around the country have consistently ruled the act contains no affirmative-defense provision — a CIA officer who calls the New York Times to say the agency is torturing its prisoners cannot stand up in court and argue he was justified because the public had a right to know.[10][11] The legal definition of espionage, as Kiriakou states it, is simply “providing national defense information to any person not entitled to receive it” — a definition so broad that most Washington leaks, from the White House, the Pentagon, and the CIA, are technically illegal under it but go unprosecuted because they have been authorized up the chain of command.[12] He draws a sharp line between that and whistleblowing, which he says has an actual legal definition — bringing to light evidence of waste, fraud, abuse, illegality, or threats to public health or safety — as against leaking, which people do for excitement, to feel powerful, or for revenge against a boss.[13] Separately, Kiriakou notes it is a felony in the United States for a government agency to classify a program that is itself committing a crime — meaning, he argues, that classifying the CIA’s torture program was itself illegal — though he says no one has ever been charged under that provision.[14][15] Kiriakou notes the act has been used against a range of figures over the past century, from Eugene Debs — who ran for president from his prison cell at the maximum-security penitentiary in Atlanta after being jailed for opposing U.S. entry into the war — to a Hollywood producer jailed for making an insufficiently pro-British film, to, more recently, Joshua Schulte.[16][17][18]
Kiriakou draws a sharp distinction between two of its sections: Section 794, meant to prosecute people who spy for a foreign power intending harm to U.S. national security, and Section 793 — the section under which he and most whistleblowers have been charged — which he calls, simply, “a political weapon.”[19] Discussing the 2022 unsealing of the FBI’s Mar-a-Lago search affidavit with journalist Kevin Gosztola, Kiriakou made clear that his criticism of the act as “a flawed law that is used to silence whistleblowers” was not a defense of Donald Trump personally.[20] He noted that Section 793(e), the subsection at issue in that case, carries a maximum of 10 years in prison per count — matching the maximum under the Intelligence Identities Protection Act — while obstruction of justice and false statements each carry five years; a non-Trump defendant convicted on comparable facts, he estimated, would likely serve two to four years, noting that NSA whistleblower Reality Winner received an unusually harsh five years and three months.[21]
Prosecutorial tactics: venue shopping and charge stacking
Kiriakou describes two tactics the government uses to secure convictions under the act. The first is “venue shopping” — indicting in a federal court where conviction is effectively guaranteed; in his own case, that was the Eastern District of Virginia, which he calls “where no national security defendant has ever won.” The second is “charge stacking” — piling on additional counts to force a defendant toward bankruptcy and a plea rather than trial.[22][23]
In his own case, Kiriakou says he was charged with three counts of espionage, one count of making a false statement, and one count of violating the Intelligence Identities Protection Act of 1981 — only the second American ever charged with that offense — on top of threatened obstruction-of-justice and evidence-destruction charges over deleted emails he says were routine disk-space cleanup.[24][25] He says he was convicted for confirming the name of a covert officer he refers to only as “John Doe” — identified to him by a reporter who had already narrowed the name down by process of elimination in email exchanges, leaving Kiriakou simply to confirm it.[25] Two of the espionage counts stemmed from his having sent a reporter the business card of a former CIA colleague — an associate of contract psychologists Mitchell and Jessen — whose CIA affiliation was already public on LinkedIn; those two counts were later dropped.[26] The Justice Department’s opening offer was a guilty plea under the act carrying 45 years — which Kiriakou elsewhere describes prosecutors calling, in effect, “a death sentence” — and he rejected it.[27][28] His attorneys argued he lacked mens rea in confirming a covert officer’s surname, noting that David Petraeus and Leon Panetta had also confirmed names without being charged; the judge responded that a person can “accidentally commit espionage.”[29] Over a single week, DOJ’s offer fell rapidly — from 10 years on a Monday to 8 years on Wednesday to 5 years on Friday, each of which Kiriakou rejected — before eventually settling on a final offer of 30 months (23 to serve).[30] Kiriakou says that when he initially refused that plea and insisted on going to trial, his lead attorney got in his face and told him bluntly that the case was never about justice, only about “mitigating damage,” and urged him to take the deal; Kiriakou says he was facing up to 45 years and, realistically, 12 to 18 years if convicted, against the 23-month offer, and ultimately took it after reading a ProPublica study finding the government wins 98.2% of its cases — and because he had five children at home.[31][32] His defense team used what Kiriakou calls “gray mail” — warning that his trial testimony might inadvertently disclose classified CIA conduct and implicate “household names” — to press DOJ down to that final offer.[33] Central to that leverage was the judge’s denial of all 72 of the defense’s motions to declassify documents Kiriakou says he needed to mount a defense — a ruling issued after a private, in-camera meeting between the judge and prosecutors that his own attorneys were barred from attending; after the ruling, his attorney told him “we have no defense if we don’t have those documents,” leaving a plea as the only option.[34][35] In another retelling of the same negotiation, Kiriakou says the opening Justice Department offer was 35 years, with one of the attorneys telling him he “might live to meet your grandchildren” if he pleaded — he refused, insisting he had done nothing wrong, and says prosecutors then waited until his mounting legal bills had bankrupted him before dropping the original charges and moving to a plea; when prosecutors still would not come down below three and a half years, he told them he would go to trial and testify about war crimes and crimes against humanity he had witnessed over fifteen years in the Middle East, at which point they settled on 23 months.[36][35][37][38][39] Kiriakou says he retained 11 attorneys in total — including Plato Cacheris and Bob Trout of Trout Cacheris, and Mark McDougal of Akin Gump — leaving him $880,000 in legal debt.[40] He says the pressure continued after his plea: when he tweeted a reply to a fan saying he would “shout it from the rooftops” if he could do anything differently, the U.S. Attorney’s Office threatened him with obstruction-of-justice charges the next day, which is why he now advises anyone under investigation not to tweet, post, or give interviews.[41]
The act’s lack of any harm requirement was illustrated in Kiriakou’s own prosecution at the Eastern District of Virginia, where Judge Leonie Brinkema ruled that a violation required only that national-defense information had been provided to a person not entitled to receive it — no proof of harm to national security was needed, and no foreign recipient was even alleged.[42] Kiriakou says his case set the standard for subsequent Espionage Act prosecutions.[43] Kiriakou himself was charged under the act for confirming a former colleague’s surname to a journalist — a confirmation that was never published.[44] Media coverage at the time widely believed the disclosure charge concerned CIA officer Deuce Martinez, but Kiriakou says the charge in fact related to a different, never-publicly-named person — Martinez, he notes, was already publicly identifiable, including on LinkedIn and via a public speech he gave at James Madison University.[45] Kiriakou has said his biggest personal regret from the episode is not his decision to go public about the CIA’s torture program, but his failure to engage an attorney before speaking with agency and FBI investigators — “a critical mistake.”[46]
The Obama-era surge in press-related prosecutions
Kiriakou cites the Obama administration’s use of the act as a historic departure from prior practice: between 1917 and Obama’s election, three Americans had been charged under the Espionage Act for speaking to the press. Under Barack Obama, eight or nine people were charged (Kiriakou gives both figures across interviews) — nearly three times the combined total of all previous presidents — and none of them was accused of lying: “Not a single one. Because lying is not a crime. That’s right. Telling the truth is a crime.”[5][47][48][49] Under Trump a further four people were charged, according to Kiriakou.[50] Kiriakou’s own case was itself part of that surge: after his December 2007 ABC News interview describing the CIA’s torture program as official government policy personally approved by the president, he was indicted on five felonies, three of them under the Espionage Act — a charge that, he notes, can carry the death penalty. “Remember, espionage can be a death penalty charge. I had three of them.”[51] A New York Times reporter later wrote that on the day of his arrest, every one of the paper’s national-security sources went silent — the chilling effect Kiriakou says was the intended purpose of the prosecution.[52] In a prison going-away speech, Kiriakou said he became the sixth person charged under the Espionage Act by President Obama, double the number of prosecutions under all previous presidents combined, and quoted former U.S. Attorney General and Supreme Court Justice Robert Jackson’s warning that with so many laws on the books, a prosecutor can pick a target first and then search for a technical violation to pin on him.[53][54] Kiriakou says Obama was the first president to use the act as a matter of policy against whistleblowers rather than only threatening it — Richard Nixon tried to charge Daniel Ellsberg with espionage over the Pentagon Papers, but the case collapsed once it emerged Nixon had ordered the break-in of Ellsberg’s psychiatrist’s office — and that Obama bragged about his record on the Espionage Act in advance of the 2012 election, including on his own campaign website.[55]
Kiriakou argues the act is applied wildly inconsistently depending on who is caught and why. He recalls that in 1996, while still on the CIA’s analytic side, a colleague who let slip information during “pillow talk” with a CNN commentator she was having an affair with was merely given four weeks without pay and a note in her personnel file — a case he contrasts with today’s Espionage Act charges, which he says would carry up to ten years for the same conduct.[56] He gives a second example from his time as a federal background investigator before joining the CIA: a woman who took a classified briefing book home, got drunk at a bar on St. Patrick’s Day, and left the book on the roof of her cab — the documents were recovered after a passerby called the FBI, and she, too, received only four weeks of unpaid leave and a promotion freeze.[57] He also says the CIA now runs AI-monitoring software on employees’ computers that flags search behavior as potentially indicating whistleblower intent and reports it to the Office of Security — he describes a colleague who was investigated within two hours of researching regional newspapers relevant to a new analyst assignment — and that the agency now runs a reward program for employees who report colleagues suspected of considering whistleblowing.[58][59]
Kiriakou attributes the surge to John Brennan, who he says instilled in Obama a “Nixonian obsession” with leaks and drove the cases with the full force of the Justice Department.[60][61] At the same 2026 Berlin panel, Jesselyn Radack, the whistleblower-defense attorney on the panel, said the act has continued to be used to prosecute whistleblowers since, including a counter-intelligence official under investigation over a leak, and that its use has become normalized as a tool against whistleblowers more broadly.[62][63] Kiriakou, on the same panel, notes that efforts exist to end the act’s use against whistleblowers, with the activist known as “Chip” championing the cause — the same Chip Gibbons who, per Kiriakou, wrote a rewrite of the act sponsored by Ilhan Omar in two consecutive Congresses.[64][65]
Daniel Ellsberg and the effort to challenge its constitutionality
Daniel Ellsberg contacted Kiriakou and asked him to go to trial specifically so the constitutionality of the Espionage Act could be challenged before the Supreme Court. Kiriakou declined, citing his five children. Ellsberg then asked Jeffrey Sterling to do so; Sterling went to trial, was convicted, and was sentenced to what Judge Brinkema described as “Kiriakou plus 12 months.”[66]
Kiriakou has separately recounted a 2013–14 conversation with Ellsberg about appealing an Espionage Act conviction to the Supreme Court to have the law struck down; at that time only two people had standing to bring such a case — Chelsea Manning and Jeffrey Sterling — and both declined to carry it through.[67][68] Kiriakou says his own three Espionage counts were dropped because he had not committed espionage, Manning’s conviction was commuted before she could appeal, and Sterling, though he retained standing to appeal, ran out of money to pursue it.[69] Kiriakou believes the Justice Department deliberately declined to prosecute Ellsberg himself after Ellsberg released top-secret nuclear information and demanded to be charged under the act — reasoning that the department liked being able to use the act as a weapon against national-security whistleblowers, and feared that Ellsberg, then in his 90s and with nothing left to lose, might actually win, forcing Congress to rewrite the law narrowly so it could only be used against genuine spies working for a foreign nation.[70] Kiriakou has said that if the Justice Department successfully prosecuted Julian Assange as a publisher, the precedent would leave any journalist or editor who handles classified information liable to be charged with espionage — “all of us.”[71]