The Obama Administration’s response to the online publication of classified defense documents and diplomatic cables by the organization WikiLeaks, as well as its efforts to extradite Edward Snowden in connection with the leak of NSA documents pertaining to certain surveillance programs, are recent examples of its relatively hardline policy toward intelligence leaks. According to The New York Times, the Obama Administration has waged the most aggressive campaign against leakers in U.S. history, responsible for six of the nine total indictments ever brought under the Espionage Act. The substance of the recent leaks has reignited important public debate regarding freedom of information and governmental surveillance. And the government’s response is bringing attention to an area of federal law badly in need of reform. It is high time that Congress takes action and replaces the Espionage Act of 1917 with sensible regulation.
There is no one statute that criminalizes the unauthorized disclosure of information related to the national defense. Rather, the United States Code contains a patchwork of statutes that exist to protect information depending upon a number of factors, including the nature of the information, the means by which it was obtained, and the identities of the discloser and of those to whom it was disclosed. National defense information, however, is generally protected by the Espionage Act, 18 U.S.C. Sections 793-798.
The Espionage Act was passed by Congress two months after the United States entered World War I, on October 6, 1917. But since 1917, Presidents and attorneys general of both parties have been reluctant to use the Espionage Act because they have recognized that it is hopelessly broad.
Consider, for example, Section 793. That section prohibits the communication, transmission, or delivery of defense information to anyone not entitled to possess it, so long as the “leaker” has the intent or reason to believe the information will be used against the United States or to the benefit of a foreign nation.
First, note that Section 793 does not deal with “classic spying” (i.e. aiding foreign governments or communicating information to an enemy in time of war). Offenders of Section 793 need not transmit the defense information to a foreign government (or foreign political or military party) with the intent or reason to believe it will be used against the United States. Rather, Section 793 applies to the disclosure of defense information to anyone “not entitled to receive it.” It is sweeping in scope.
Second, note that the Section 793 applies to all persons and is not limited to members of the military or employees of the federal government. While some provisions of the Espionage Act apply only to government employees or others who have authorized access to sensitive government information, many of the Act’s provision apply to all persons, including Section 793.
Third, note the type of information Section 793 is concerned with. We tend to think about the Espionage Act as forbidding disclosures of “classified” information. But that is not really what the statute says. Rather, what Section 793 forbids is the disclosure of information related to the national defense, regardless of whether that information is classified by a government agency. What classifies as information related to the national defense? The courts give the executive broad deference in what constitutes “defense information.” Information related to the national defense, therefore, is whatever the government says is related to the national defense.
Fourth, note that Section 793 is limited by an intent requirement – that is, the “leaker” must have the intent or reason to believe the information will be used against the United States or to the benefit of a foreign nation. However, Section 793 does not require that the government prove actual damage as a result of the leak. Rather, the government need only prove that disclosure of a document is “potentially damaging” to the United States or advantageous to a foreign government.
Section 793, in other words, is sweeping in scope and virtually unlimited in application to intelligence leaks. Indeed, when the Espionage Act is read in combination with other federal statutes criminalizing the disclosure of sensitive government information – e.g., 18 U.S.C. Section 641, which punishes the theft or conversion of government property or records for one’s own use or the use of another – there is ample statutory authority for prosecuting most, if not all, intelligence leaks.
But perhaps the most egregious aspect of the Espionage Act is that it appears to criminalize a lot of journalism. Section 793(g), for example, proscribes that any person that conspires to help the source of the leak commit the offense has committed the same crime. That would seem to proscribe criminal penalties to journalists who publish articles based off leaked intelligence information, like Glenn Greenwald of The Guardian.
To be sure, cases involving disclosures of classified information to the press have been rare and have relatively infrequently been punished as crimes. And to date there has been no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.
Moreover, there is some authority for interpreting Section 793 to exclude “publication” of material by the media. In New York Times Co. v. United States, Justice William O. Douglas, in a concurring opinion, rejected the government’s argument that the term “communicate” should be read to include “publish.” In rejecting the government’s argument, Justice Douglas pointed to the conspicuous absence of the term “publish” in Section 793 of the Espionage Act and legislative history demonstrating Congress had rejected an effort to reach publication.
But the fact that this question might be open to constitutional interpretation is unconscionable. The federal government has a compelling government interest to punish certain disclosures of sensitive information, but the publication of that information should be unequivocally protected.
Simply stated, the Espionage Act of 1917 is some of the worst legislation ever passed by the United States Congress. It has generally been unenforced since the Wilson administration, and for very good reason. The Espionage Act is sweeping in scope, and its breadth appears to criminalize basic political dissent.
The Act’s revival under the Obama Administration is an illustration of the dangers inherent in keeping dangerous legislation on the books while trusting the executive branch not to start selectively enforcing it. To paraphrase Robert Jackson in Korematsu v. United States, the Act has remained on the books like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. The Act should be repealed and replaced with sensible legislation. Until then, the Obama Administration should return to not enforcing it.
Think critically. Challenge yourself. Avoid the safe and the comfortable. The essence of the independent mind lies not in what it thinks, but in how it thinks. Nam et ipsa scientia protestas est: And thus knowledge itself is power.