Jack Teixeira, the Massachusetts National guardsman accused of sharing national intelligence secrets online, is set to make another appearance in court this week. Teixeira, a 21-year-old cyber defense operations specialist, was taken into federal custody last week at his family's home in Dighton and on Friday was charged with crimes related to the disclosure of classified information about the war in Ukraine. GBH News legal analyst Daniel Medwed joined Morning Edition hosts Paris Alston and Jeremy Siegel to discuss the specific charges and how national security crimes have been treated in the past. This transcript has been lightly edited.
Paris Alston: This whole thing is kind of wild right here. Not only is there a Massachusetts connection — there's always a Massachusetts connection — it's in Dighton, right? A place where even the people who live there are like, we're never on the map. And to be put on it for something like this is pretty wild. But more importantly, the fact that a low-level, 21-year-old I.T. professional in the National Guard could have access to such top-secret information here and put be able to put it in such jeopardy is pretty crazy. How serious are the charges that we're talking about here?
Daniel Medwed: They are quite serious, Paris. He's been charged with two federal crimes. The first is essentially the unauthorized retention and transmission of national defense information. And the second is unauthorized retention and removal of classified documents. Each one carries a maximum prison sentence of 10 years behind bars. So if he's convicted, he's looking at a very stiff prison term. In addition, the criminal complaint unsealed last week is buttressed by an affidavit supplied by an FBI agent that details some of the allegations against Teixeira, including that he allegedly began to disseminate this information as far back as December, and that the information he revealed was very sensitive, including information about Ukrainian troop movements.
Siegel: So let's talk about the legal framework surrounding all of this, and the history of it. I don't know a ton about national security crimes and laws. I don't think a lot of people do, although I think one phrase that might come to mind for some people is the Espionage Act, which we tend to hear about in cases similar to this. So what should we know about laws surrounding national security and leaking sensitive materials online?
Medwed: Well, you're right. It's bewildering. There is a wide range of laws in this area. Many of the criminal statutes are contained in Title 18 of the United States Code. That's where these two statutes that provide the foundation for the case against Teixeira are located. And in terms of history, you're absolutely right. A lot of national security crimes stemmed conceptually, at least, from the Espionage Act, which was passed in June 1917, shortly after we entered World War I, a time when President Wilson and Congress were gravely concerned about U.S. citizens thwarting the war effort. So together, they passed a law that said that in times of war, it's a crime to willfully make or convey false reports with the intent to interfere with the military or promote the success of its enemies. Congress upped the ante the next year, when it passed something called the Sedition Act of 1918, which further made it a crime to 'willfully under print, write or publish any disloyal, profane, scurrilous or abusive language about the United States.' That one obviously generated a lot of controversy and we'd all be in trouble, I think.
Alston: Absolutely. Daniel, you just mentioned some of the laws that were passed during World War I. The Sedition Act in particular seems to clash pretty directly with the First Amendment right to free speech, as you were illustrating there. How could that possibly survive judicial scrutiny?
Medwed: Well, fortunately, the Sedition Act was repealed just two years after it was promulgated. It was repealed in 1920. But it triggered a raft of courtroom battles about the line between free speech and privacy and national security, battles that linger to this day. So the Supreme Court initially created a test: The government could criminalize speech so long as it created a clear and present danger. That's a phrase I think a lot of us have heard: A clear and present danger. Now, that test stems from a 1919 case involving a man named Charles Schenck, who was charged with violating the Espionage Act for distributing leaflets urging citizens to disobey their draft orders — you know, don't go to World War I, don't join the military. He was convicted under the Espionage Act and the United States Supreme Court affirmed his conviction unanimously.
So on the one hand, a lot of the early Supreme Court cases were very deferential to the government. They made it pretty easy to convict people of national security crimes. There's the famous case involving the socialist Eugene Debs, who was charged under the Espionage Act — not for actually violating it, but for simply pledging support for a couple of people who were charged under it. That conviction was also sustained by the U.S. Supreme Court. On the other hand, over time, the Supreme Court began to recognize the importance of the First Amendment as creating a marketplace of ideas and created a much narrower, stingier vision of what is a clear and present danger, culminating in a really important 1969 case called Brandenburg. So that's a little bit of a legal history lesson. But the basic idea is, there have been a lot of cases on this issue over time.
Siegel: So how legally does the possibility of a whistleblower situation fit into all of this, and fit into the Espionage Act?
Medwed: So whistleblowing is often raised as a defense or at least a moral justification when someone's charged under the Espionage Act: The claim that somebody was advancing the public interest by letting the public know about what's going on behind closed doors. Famously, of course, this cropped up in the Edward Snowden case back in 2013 — a National Security Agency contractor who disclosed sensitive NSA information about the agency's mass surveillance program against U.S. citizens. He then, of course, fled to Russia and just became a Russian citizen a few months ago. That case sparked a heated debate about the line between security and free speech. Some people to this day, of course, view Snowden as a traitor, while others view him as a patriot.