Lawyers for ex-CIA employee challenge constitutionality of Espionage Act

By Andrew Blake The Washington Times

Joshua Adam Schulte, a former CIA employee accused of leaking classified material to WikiLeaks, sought to mount a new defense Tuesday months beyond the deadline to do so.

Edward S. Zas, a public defender for Mr. Schulte, asked a federal court judge to accept a tardy pretrial motion challenging the constitutionality of federal espionage and larceny statutes under which his client has been charged.

Mr. Schulte, 31, has been jailed for nearly two years while waiting to stand trial in connection with multiple counts related to allegedly leaking top-secret CIA material later published online by the WikiLeaks website. He has pleaded not guilty to all charges, and his trial is currently set to start in early 2020 following a series of developments and delays.

In a four-page sworn declaration, Mr. Zas said that Mr. Schulte’s legal team did not learn they could seek to have the charges dropped as unconstitutional until several months after a July deadline to submit pretrial motions had passed. He filed it in Manhattan federal court along with a memorandum making his case for dismissal.

“This was not a tactical, strategic or reasoned decision,” said Mr. Zas. “Counsel simply and inexcusably overlooked that the constitutionality of these statutes is open to serious question and vigorously debated by courts, journalists and commentators. Counsel also overlooked that neither the Supreme Court nor the Second Circuit has definitively resolved whether these statutes are unconstitutionally overbroad or vague in their current form, particularly as applied to news organizations and their sources.”

Mr. Zas said that the defense team did not realize that a “viable motion to dismiss under the Constitution” was possible until around Oct. 22. He did not immediately return a message requesting further details.

The tardy pretrial motions seeks dismissal of four counts brought under the U.S. Espionage Act and one count brought under the larceny statute, both stemming from Mr. Schulte allegedly leaking a collection of CIA hacking tools that were publishing by WikiLeaks beginning in March 2017. He would face a maximum sentence of 50 years imprisonment if found guilty of all five counts, Mr. Zas noted, arguing it would be be “fundamentally unfair” to penalize Mr. Schulte for his own “unreasonable failure” to file the motion to dismiss on time.

“Scholars, journalists, and judges have long feared that the Espionage Act, 18 U.S.C.§ 793, and the federal larceny statute, 18 U.S.C. § 641, are so vaguely worded—and have been construed so broadly—that the government could use them to prosecute news organizations, and their confidential sources, for obtaining and revealing truthful and important information about government activity to the public,” Mr. Zas wrote in the memo. “In this case, those fears have been realized.”

The U.S. Attorney’s Office in Manhattan declined to comment.

Passed during World War I, the Espionage Act has been used several times this century by prosecutors to bring criminal charges related to leaking classified material, including recently in the federal case pending against Julian Assange, the Australian-born editor and founder of WikiLeaks. He was indicted in May on 17 counts of violating the Espionage Act for soliciting and publishing classified U.S. military and diplomatic documents nearly a decade earlier, marking the first time in history the Justice Department has ever prosecuted a publisher under the statute.

Mr. Assange, 47, has been jailed in London since April fighting extradition to the U.S. He too faces decades behind bars if found guilty.

Several candidates seeking the Democratic presidential nomination in 2020 have condemned his prosecution under the Espionage Act or called for the charges to be dropped.

Copyright © 2019 The Washington Times, LLC.

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