Government attorneys presented a robust justification of their decision to prosecute two former officials of the American Israel Public Affairs Committee (AIPAC) for mishandling classified information in a supplemental brief (pdf) filed in the case last week.
“In the final analysis, this case is not about free speech, foreign policy lobbying, or petitioning the government,” the Government brief stated.
“This case is about the willful conduct of two defendants; two defendants who conspired to obtain national defense information, knew they had in fact obtained national defense information, knew that communicating that information to foreign agents and members of the press was illegal, and yet chose to do so anyway. The First Amendment offers no sanctuary for their criminal conduct,” the brief declared.
At a March 24 hearing, government attorneys had seemed tongue-tied and barely responsive to the probing questions of Judge T.S. Ellis III. Their March 31 brief, in contrast, is tightly argued.
Prosecutors even identified, at long last, what they said was a precedent for this unusual case. In a 1941 ruling in Gorin v. United States, the Supreme Court upheld the constitutionality of the espionage statutes in a case that, like the present one, involved “oral disclosures of national defense information to a person who was not a government employee.”
Attorneys for the defense also filed their own brief on First Amendment-related issues on March 31, but it was filed under seal and is not publicly available.
The defense had previously argued that it would be unconstitutional to criminalize oral communications involving national defense information because — unlike documents that are marked classified — oral conversations do not provide the listener any way to know which information is restricted from disclosure. Prosecutors disputed that argument.
“If oral communications of national defense information to non-government employees were to render the espionage statutes unconstitutional, this country would face a new era in which unconstrained espionage would flourish. Foreign agents and other individuals intent on obtaining the nation’s most secret information would merely need to engage in verbal discussions with their sources in order to thwart law enforcement. It is obvious that in passing the espionage statutes, Congress never intended such an absurd result.”
The Government also disputed the defense claim that the espionage statutes are impermissibly vague, and said that there are “extremely rigorous evidentiary hurdles” that protect against prosecutorial abuse.
“The willful intent requirement is a particularly strong guarantee against the unconstitutional application of Section 793 [of the Espionage Act]… By requiring the government to prove that the defendants knew their conduct was illegal, Section 793 insures that an ‘entrapped innocent’ will not fall within the statute’s confines. Section 793 is not unconstitutionally vague.”
A copy of the Government’s brief was obtained by Secrecy News.
The Government’s newfound clarity about its argument hardly mitigates the First Amendment concerns raised by the case.
To the contrary, the prosecution’s theory implies that once a reporter becomes aware that the subject of a story is “national defense information,” he or she is legally obliged to desist from gathering any more information about it. To do otherwise could constitute evidence of “willful intent” to violate the Espionage Act.
As then-U.S. Attorney (now Deputy Attorney General) Paul McNulty put it last year, “Those not authorized to receive classified information must resist the temptation to acquire it, no matter what their motivation may be.”
But according to case law, “national defense information” means defense-related information that the Government has taken steps to withhold from official disclosure, even if it is not classified.
So the press and the public are free to investigate anything defense-related unless the Government has decided it should be withheld. This might work very well. In some other country.