Leaks and the Espionage Act

A new decision on the Espionage Act clarifies the government’s ability to prosecute leaks relating to national security, but also places a new limitation on such prosecutions where they are based upon oral disclosures rather than leaked documents – a distinction that does not make a ton of policy sense – and also limits prosecutions for leaks that merely benefit non-hostile governments. Bear with me as I explain why.
I have written extensively before on the Espionage Act (18 U.S.C. 793) here, here, here and here. Basically – and you can get the details in my earlier posts – the statute prohibits anyone (whether or not they have security clearance or other authorization to learn classified information) from (1) willfully disclosing (2) information relating to the national defense (3) to those not authorized to receive it (4) while having reason to believe that the disclosure of such information could be used to injure the United States or aid some foreign power. As I have argued before, the willfulness requirement means that the government, in an Espionage Act prosecution, must prove that the “leaker” knew that he or she was acting unlawfully; the statute is not a strict-liability rule for inadvertent leaks or bad judgment.
The Espionage Act has been much discussed of late for two reasons. Some on the Left have argued that it should have been used against Karl Rove and others if they were involved in disclosing Valerie Plame’s status as a CIA employee; I have argued, and the absence of a indictment on these grounds has borne out my observations, that it was unlikely that there was sufficient evidence to show that Plame’s status was information relating to the national defense that could be expected to harm national security and – most particularly – sufficient evidence to show that anyone involved in disclosing her name thought they were acting unlawfully.
On the Right, the Espionage Act has been argued as a basis for prosecuting those government officials who have leaked the details of secret programs central to the War on Terror (the NSA surveillance program and associated data-mining operations, the existence of supposed “secret CIA prisons”, the program to track international bank transfers) and, possibly, as a basis for prosecuting the New York Times and its reporters for publishing such leaked secrets, knowing they were classified information critical to the war effort and – in some cases – knowing that the Executive Branch was strenuously objecting to publication.
In such circumstances, then, the scope and applicability of the Espionage Act is of great importance. Which is why a recent opinion from the Eastern District of Virginia in United States v. Rosen is interesting. The defendants in Rosen are former AIPAC officials (i.e., lobbyists for pro-Israel positions) who allegedly obtained leaked intelligence of varying types, including draft U.S. policy documents, intelligence about Al Qaeda, and intelligence about potential attacks on U.S. troops in Iraq, from Defense Department official Larry Franklin and passed such information on to foreign government officials (apparently from Israel) and members of the media, among others. Franklin has pleaded guilty, but the two remaining defendants, Steven Rosen and Keith Weissman, challenged the indictment on several grounds, all of which were rejected.

The Statutory and Vagueness Challenges
First, they argued that the statute’s definition of “information” only protects documents and not orally transmitted information; the court rejected this one easily. Slip op. at 13-17. Second, they contended that the Espionage Act is unconstitutionally vague as applied to them and did not put them on notice of the risk of prosecution because orally transmitted information does not contain the clear stamps of “TOP SECRET” and the like that applies to classified documents. The court – echoing, I should note, my prior analyses of the Espionage Act’s state of mind requirements – found that any vagueness was cured by the requirement that the government prove that the information was closely held by the Executive Branch and by statute’s strict state of mind requirements. Slip op. at 20-36. As the court observed:

[T]he government in this case must prove beyond a reasonable doubt that the defendants knew the information was NDI [national defense information], i.e., that the information was closely held by the United States and that disclosure of this information might potentially harm the United States, and that the persons to whom the defendants communicated the information were not entitled under the classification regulations to receive the information. Further the government must prove beyond a reasonable doubt that the defendants communicated the information they had received from their government sources with “a bad purpose either to disobey or to disregard the law.”

Slip op. at 32. (From the perspective of a criminal defense attorney, of course, this ruling makes the whole motion process worthwhile even though the defendants’ motion was denied, since they have now locked the court into a pro-defendant view of the jury charges). I should note that the government’s allegations, if proven, make it highly likely that these defendants knew that they were acting unlawfully – the court’s discussion of the facts is replete with examples of the defendants saying things like “I’m not supposed to know this” or describing the information as “codeword protected intelligence.” Slip op. at 3-7.
The court’s discussion of the state of mind requirements, however, left open the distinct possibility of a prosecution of misguided idealists in the press or (in this case) of lobbyists/think tanks/advocacy groups, whatever their subjective motives, so long as they knew they were unlawfully leaking classified information and had reason to know that it was important to the national defense – but imposes a higher state of mind (scienter) requirement on oral disclosures:

As has been noted, the statute’s “willfulness” requirement obligates the government to prove that the defendants knew that disclosing the NDI could threaten the nation’s security, and that it was illegal, but it leaves open the possibility that defendants could be convicted for these acts despite some salutary motive. For example, if a
person transmitted classified documents relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for “willfully” committing the prohibited acts even if he viewed the disclosure as an act of patriotism. By contrast, the “reason to believe” scienter requirement that accompanies disclosures of information, requires the government to demonstrate the likelihood of defendant’s bad faith purpose to either harm the United States or to aid a foreign government.

Slip op. at 33-34 (emphasis in original).
Next – in a passage that must have alarmed the New York Times – the court rejected the claim that the statute failed to give fair notice that it could apply to persons outside the government. As the court noted, this argument is belied by the statute’s plain language, as an entire subsection (793(e)) deals with disclosures by those not authorized to have the information in the first place. Slip op. at 37 & n. 38. The court was unmoved by the idea that “leaks” by outsiders can not be prosecuted:

[L]abeling an event a “leak” does not remove the event from the statute’s scope. At best, the term “leak” is a euphemism used to imply or suggest to a careless reader that the transmission of the information was somehow authorized. Whether the “leaks” or transmissions of information in this case were authorized is likely to be a sharply controverted issue in this case and if the government does not carry its burden of showing that the transfers of information were unauthorized, the prosecution fails. But the analysis here proceeds, as it must, on the superseding indictment’s allegations, including the allegation that all transmissions of NDI were unauthorized.

Id. at 38. (With my background as a securities lawyer, this is a familiar theme. The government has prosecuted outsiders, including lawyers and journalists, for unauthorized use of corporate inside information – so long as it shows certain connections back to an unauthorized disclosure from the company. Indeed, much of the court’s analysis of what constitutes protected information and how you show that its disclosure was unauthorized has paralells in the federal securities laws).
The First Amendment
The defendants’ next avenue of attack – one that surely would be invoked by reporters – was to claim a First Amendment right to make the disclosures in question. The court recognized that the Espionage Act does have free speech implications, as information about U.S. foreign policy implicates “the core of the First Amendment’s guarantees.” Slip op. at 40.

In the instant case, defendants are accused of the unauthorized possession of information relating to the national defense, which they then orally communicated to others, all within the context of seeking to influence United States foreign policy relating to the Middle East by participating in the public debate on this policy.

Id. at 42. Thus, “the mere invocation of ‘national security’ or ‘government secrecy’ does not foreclose a First Amendment inquiry.” Id. at 41. Nor are the First Amendment interests absolute; instead, the court recognized its obligation to determine whether Congress had struck a permissible balance between the protection of national security and the right to free speech, in light of the type of information at issue:

But importantly, the defendants here are not accused merely of disclosing government secrets, they are accused of disclosing NDI, i.e., government secrets the disclosure of which could threaten the security of the nation. And, however vital an informed public may be, it is well established that disclosure of certain information may be restricted in service of the nation’s security, for “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)). And, as the Supreme Court has repeatedly noted, one aspect of the government’s paramount interest in protecting the nation’s security is the government’s “compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.” Snepp, 444 U.S. at 509 n.3. Thus, the right to free speech and the value of an informed citizenry is not absolute and must yield to the government’s legitimate efforts to ensure “the environment of physical security which a functioning democracy requires.” Morison, 844 F.2d at 1082. This point is best expressed in the Supreme Court’s pithy phrase that “while the Constitution protects against the invasion of individual rights, it is not a suicide pact.” Aptheker, 378 U.S. at 509 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963)).

Slip op. at 46-47 (footnotes omitted).
In determining that the Espionage Act was narrowly tailored to serve this compelling interest, the court rejected the notion that only the original leakers could be prosecuted:

As defendants correctly argue, the analysis of the First Amendment interests implicated by secs. 793(d) and (e) depends on the relationship to the government of the person whose First Amendment rights are implicated. In this respect, there are two classes of people roughly correlating to those subject to prosecution under sec. 793(d) and those subject to prosecution under sec. 793(e). The first class consists of persons who have access to the information by virtue of their official position. These people are most often government employees or military personnel with access to classified information, or defense contractors with access to classified information, and are often bound by contractual agreements whereby they agree not to disclose classified information. As such, they are in a position of trust with the government. The second class of persons are those who have no employment or contractual relationship with the government, and therefore have not exploited a relationship of trust to obtain the national defense information they are charged with disclosing, but instead generally obtained the information from one who has violated such a trust.
There can be little doubt, as defendants readily concede, that the Constitution permits the government to prosecute the first class of persons for the disclosure of information relating to the national defense when that person knew that the information is the type which could be used to threaten the nation’s security, and that person acted in bad faith, i.e., with reason to believe the disclosure could harm the United States or aid a foreign government.


[D]efendants here contend that the First Amendment bars Congress from punishing those persons, like defendants, without a special relationship to the government for the disclosure of NDI. 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. Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, 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.

Slip op. at 48-49, 52-53 (emphasis added). Among other things, the court drew on the many opinions in the Pentagon Papers case, in which the Supreme Court concluded that then government may not prevent by injunction the publication of secrets, but several Justices suggested that the publication could nonetheless be grounds for prosecution after the fact.
The court did, however, conclude that despite the terms of the statute allowing prosecutions for disclosure that harms the U.S. or advantages a foreign nation, that advantage must accrue to our enemies – i.e., there must be actual risk of harm to the U.S. Id. at 55-63. This restriction may be of particular significance in the prosecution of the two AIPAC lobbyists.
Under the Rosen decision, the government’s burden to prosecute those outside of government for leaking classified national security secrets is high, and onerous, and should deter the government from seeking such prosecutions lightly. But the court – properly, in my view – concluded that there is no absolute right of citizens, once in receipt of such secrets, to pass them along or publish them. If that makes newspapers and lobbyists alike more cautious in disclosing secrets that go to the core of our ability to protect the nation from its enemies – well, that’s a good thing.