MINNEAPOLIS — A group of legal scholars is weighing in on the upcoming sentencing of a former Minnesota FBI agent who admitted he leaked documents to a reporter, saying in court documents filed Thursday that the court should consider the value of the agent's disclosure in determining the proper penalty.
Terry James Albury pleaded guilty in April to two counts of unauthorized disclosure or retention of national defense information. The information he shared with an online news organization included a document classified as "secret," that related to how the FBI assesses confidential informants.
Under his plea agreement, he faces a likely penalty of between 37 and 57 months when he is sentenced Oct. 18, but the final decision will be up to U.S. District Judge Wilhelmina Wright. Prosecutors argued Thursday that about 52 months would be sufficient, while defense attorneys asked for no prison time.
In advance of his sentencing, 17 scholars who focus on constitutional law, First Amendment law and media law filed a brief asking the court to craft a punishment that weighs the constitutional protection of free speech and the public's interest in Albury's disclosure against any harm to national security.
The scholars say that the government has acknowledged its classification system has been used improperly before and "ubiquitous overclassification has long required journalists to rely on leaks to expose matters of powerful public concern." The scholars say just because a document is marked "classified," that doesn't mean there will be harm if it is published.
"It is fair to say that if all classified information were somehow hermetically sealed off from the public, ours would no longer be the vibrant, publicly-accountable republic it has been from its birth," the scholars wrote. "This Court can and should consider this reality in determining an appropriate penalty."
The scholars also said the court should consider the government's use of the Espionage Act to prosecute Albury, noting that a law enacted during World War I to go after spies is now being increasingly used for something unintended — to punish those who leak information to the press.
The Trump administration and Attorney General Jeff Sessions have made prosecuting government employees who leak sensitive information to the media a high priority. Sessions said last year that the Justice Department had more than tripled the number of active leak investigations since President Barack Obama left office.
The Reporters Committee for Freedom of the Press also weighed in on Albury's case, saying the over-classification of documents and increase in these prosecutions "poses an independent and serious threat to newsgathering, an informed public, and the ability of the news media to access the information it needs to serve ... as one of the checks and balances on government power that are essential to the preservation of our democracy."
Albury was accused of sharing documents with an online news organization, including a document, dated Aug. 17, 2011, related to how the FBI assesses confidential informants. The date of that document and its subject matter corresponded with a Jan. 31, 2017 story on The Intercept.