U.S. District Judge T.S. Ellis III ruled Aug. 10 that the Bush administration could use the Espionage Act of 1917 to prosecute private citizens who obtain access to national-defense information. The case was United States v. Rosen. The ruling appears to be the first in which a court has held the act applies to private citizens, as distinguished from government employees, who receive and/or disclose classified or secret government information.
The defendants, Steven J. Rosen and Keith Weissman, were charged with conspiring to transmit information relating to the national defense to those not lawfully entitled to receive it. Rosen was also charged with aiding and abetting the transmission of information relating to the national defense to one not entitled to receive it, in violation of a portion of the Espionage Act spelled out at 18 U.S.C. § 793(d) and 2. The defendants were represented by Abbe Lowell and John Nassikas, respectively.
The two former American Israel Public Affairs Committee lobbyists were indicted in August 2005 for allegedly conspiring to receive and disclose classified national defense information gathered or obtained over a five-year period dating to 1999. As reported in the Los Angeles Times, the information purportedly related to “American policy options in the Middle East, an FBI report on the 1996 Khobar Towers bombing in Saudi Arabia, and terrorist groups such as Al Qaeda. The indictment alleges they disclosed the information to AIPAC colleagues, an Israeli Embassy official and a reporter for the Washington Post.”
The defendants urged the court to dismiss the charges. Their pretrial motion argued that: (1) the statute, as applied to them, was unconstitutionally vague in violation of the due-process clause of the Fifth Amendment; (2) the statute, as applied to them, abridged their First Amendment right to free speech and their First Amendment right to petition the government; (3) the First Amendment rights of others were infringed because the statute was overbroad; and (4) the court could avoid these constitutional issues by interpreting the statute to apply solely to the transmission of tangible items, i.e., documents, tapes, discs, maps and the like.
Before ruling on the merits of those claims, Judge Ellis denied a request by the Reporters Committee for Freedom of the Press to file a friend-of-the-court brief. Thereafter, he denied the defendants’ pretrial motions and ordered that the case proceed to trial. (As reported in JURIST, “earlier this year former Pentagon analyst Lawrence A. Franklin was sentenced to 12 years and 7 months in federal prison for leaking information to Rosen and Weissman, as well as an official from the Israeli embassy.”)
In his memorandum opinion, Judge Ellis recognized the complexity of the issues before him:
"In the end, it must be said that this is a hard case, and not solely because the parties’ positions and arguments are both substantial and complex. It is also a hard case because it requires an evaluation of whether Congress has violated our Constitution’s most sacred values, enshrined in the First and the Fifth Amendment, when it passed legislation in furtherance of our nation’s security."
Nonetheless, he ruled in favor of the Espionage Act’s constitutionality as applied to the facts in this case:
"The conclusion here is that the balance struck by § 793 between these competing interests is constitutionally permissible because (1) it limits the breadth of the term “related to the national defense” to matters closely held by the government for the legitimate reason that their disclosure could threaten our collective security; and (2) it imposes rigorous scienter requirements as a condition for finding criminal liability."
Relying on United States v. Morison, 844 F.2d 1057 (4th Cir. 1988), Ellis found that the Espionage Act provided a constitutionally “fair warning” as to who is “entitled to receive” national-defense information. He also concluded that the executive branch had the constitutional authority to define such information, which it did through a uniform classification system for national-security information. Similarly, he ruled that the Supreme Court’s opinions in New York Times Co. v. United States (1971 — the Pentagon Papers case), supported the law’s constitutionality as applied to the defendants. Even so, he added:
"The conclusion that the statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. Indeed, the basic terms and structure of this statute have remained largely unchanged since the administration of William Howard Taft. The intervening years have witnessed dramatic changes in the position of the United States in world affairs and the nature of threats to our national security. The increasing importance of the United States in world affairs has caused a significant increase in the size and complexity of the United States' military and foreign policy establishments, and in the importance of our nation's foreign policy decision making. Finally, in the nearly one hundred years since the passage of the Defense Secrets Act mankind has made great technological advances affecting not only the nature and potential devastation of modern warfare, but also the very nature of information and communication."
Given that, Ellis urged Congress to reconsider the wisdom of certain provisions of the Espionage Act of 1917 in light of modern circumstances.
"These changes should suggest to even the most casual observer that the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations."
Meanwhile, he ruled that the defendants’ First Amendment challenges must be denied:
"In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure."
“This position cannot be sustained,” Ellis concluded. Moreover, “both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.”
But the government, the judge stressed, cannot simply invoke the Espionage Act in a talismanic way. It must prove that “national security is genuinely at risk” and it must likewise show that those charged under the act knew that its disclosure could injure the national defense. Similarly, the government must show that its officials did not authorize the leaking of any such information.
The trial, which was originally scheduled for April 25, 2006, has been delayed; a date has yet to be set. The judge announced that he would hold a status conference in September to set the schedule.
In June, Senate Judiciary Committee Chairman Arlen Specter, R-Pa., and other members of the committee clashed with Justice Department officials who maintained that the executive branch had the legal authority to prosecute the news media for reporting national-security leaks.
During that hearing, however, Gabriel Schoenfeld (a senior editor at Commentary and author of an article calling for the prosecution of The New York Times under the Espionage Act), stated: “If Americans are still wondering why our intelligence has been as defective as it has been, leading us from disaster to disaster, one of the reasons is unquestionably the hemorrhaging of classified information into the press.”
Schoenfeld made those comments in connection with a Dec. 16, 2005, Times story by James Risen and Eric Lichtblau. The story, which won a Pulitzer Prize, revealed that President Bush had “authorized the National Security Agency to eavesdrop on Americans and others inside the United States … without the court-approved warrants ordinarily required for domestic spying.”
Taking a different view, First Amendment Center Ombudsman Paul McMasters contends: “Criminalizing speech about government secrecy flouts the First Amendment and allows government officials to slip through the back door of the nation’s newsrooms to stifle legitimate inquiry and punish journalists and others who raise uncomfortable issues.”
Whether the government will obtain a conviction in the AIPAC case remains to be seen. There is also the question as to what Congress will or will not do in reviewing the wisdom of the Espionage Act of 1917.
Finally, there is the matter of how all of this might affect the press should any reporters or editors ever be prosecuted under such laws. The latter question is a topic of a forthcoming First Amendment Center First Report by University of Chicago law professor Geoffrey Stone with assistance from University of Miami law professor Stephen Vladeck and Scott Armstrong, founder of the Information Trust.