Is the United States a free country?
Most indices seem to think so. The Economist’s Democracy Index rates us at a 7.92 out of 10, with 10 being the most democratic. Freedom House — which is partially funded by the U.S. government — rates us at an 83 out of 100. Going on more specific measurements, Reporters Without Borders’s Press Freedom Index rates our press freedom at 23.93 out of 100, with 0 being the freest. Obviously, none of these indices regard the U.S. as a totally free and flawless democracy, but the consensus tends to lean in that direction.
Nevertheless, concern over rising authoritarianism in the U.S. has become a staple of political media during the Trump administration, and even more so since the storming of the Capitol on January 6. I would argue that the fact that the U.S. has the largest prison population of any country in the world — both overall and per capita — is a better and more lasting indicator of authoritarianism in this country than anything else that Trump or his followers have done. However, the threat of a sitting President disregarding the results of an election and a sizable portion of the country agreeing with him is not lost on me.
In any case, at the end of this past July, we got a stark reminder — two, in fact — that American authoritarianism is not limited to one president and his supporters, nor its criminal justice system. Those reminders came in the form of the convictions of lawyer Steven Donziger and Daniel Hale, National Security Agency whistleblower. While there are many differences in the specifics of these two cases, their outcomes converge on one disturbing theme: With increasing frequency, anyone who challenges the powerful in this country will be silenced and put in prison.
I’ll start with Hale’s case since it’s unfortunately not without recent precedent. In 2014, Hale leaked a number of documents to The Intercept proving that the U.S. drone program had a far higher non-intended target casualty rate than previously reported — up to 90% during a five-month period in Afghanistan (a scandal I’ve written about previously). And despite U.S. government attempts to classify them as combatants, they are very often civilian casualties. Five years later, this landed him a charge under the Espionage Act of 1917, which on July 27 ended with him receiving a 45-month sentence. The Espionage Act — which at the time of its passage was used frequently to prosecute critics of World War I — was designed to “punish acts of interference with the foreign relations, the neutrality and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States.”
The prosecution’s case on this front was lacking, to say the least. They, and all intelligence agencies implicated in the case, acknowledged that no direct harm to any of their agents came from any of the leaked documents. The closest thing that they could show to damages was that information in some of the documents was used by ISIS in order to better avoid drone detection. That doesn’t seem like enough “interference with foreign relations” to warrant more than a demerit, much less a nearly four-year-long prison sentence, especially with the valuable information the leaks provided to the public. That’s probably why, again, it took five years for the Department of Justice to begin prosecuting Hale. It seems that — like Chelsea Manning before him — Hale was only prosecuted because he exposed the dark, deadly machinations of the U.S. military state.
Donziger’s case, meanwhile, is without precedent, and as such is even more terrifying. To briefly summarize his background, Donziger was one of the leading attorneys in a decades-long class-action lawsuit against oil giant Chevron for continually and knowingly polluting the air and water in the Lago Agrio region of Ecuador. This case resulted in a 2011 judgment in an Ecuadorian court that forced Chevron to pay $9.5 billion to its victims. Nearly immediately afterward, Chevron sued Donziger, alleging that he had bribed an Ecuadorian judge to reach this ruling. Their only evidence in this suit came in the form of a witness, former Ecuadorian judge Alberto Guerra, whom they had paid a monthly salary of $12,000 and who admitted later on that he had lied to receive said salary. Nevertheless, New York federal judge Lewis Kaplan found Donziger guilty of the bribery and ordered him to turn over his laptop and phone to Chevron. After Donziger refused, he was charged with contempt of court and forced into nearly two years of house arrest. That two years of house arrest ended with a six-month prison sentence on July 26.
Donziger had to undergo nearly two years of house arrest and six months of prison for appealing an order to turn over his personal property, an order based on a bribery charge with absolutely zero evidence and indeed bribery on Chevron’s part. All of this is for the apparently heinous crime of making Chevron pay for damages it caused. This isn’t even to mention the fact that Donziger was — extremely unusually — prosecuted by a private law firm that had previously done work for Chevron, and that the judge that sentenced him to prison, Loretta Preska, is a member of the Federalist Society, which Chevron funds. Essentially, Chevron has been allowed to use the legal system to harass and imprison a lawyer for holding it accountable, all while never paying a cent in damages.
What both of these cases show is that challenging the powerful, be they in government or corporations, is a dangerous task that is increasingly likely to land those who do it in prison. This is not a partisan issue, either; both of these prosecutions took place under both the Trump and Biden administrations. If we would like to continue living in a country with any modicum of freedom, it is imperative that both of these cases be overturned and that unjust prosecutions like these never occur again.
Brandon Cowit is an Opinion Columnist and can be reached at cowitb@umich.edu.