The awkwardness of using the Espionage Act to penalize the unauthorized disclosure of classified information to the press is again becoming apparent in the case of Jeffrey A. Sterling, a former CIA officer who was indicted last December in one of the several leak cases that are now underway.
An initial difficulty for the prosecution is that the espionage statute cited against Mr. Sterling (18 USC 793) concerns the protection of “national defense information.” It does not mention “classified information.” The two terms are not synonymous.
“The fact that the information at issue may be classified is not conclusive and is insufficient to carry the [prosecution's] burden of proving [unauthorized disclosure of] ‘national defense information’,” the defense argued (pdf) in one of a remarkably robust series of motions for dismissal that were filed last week on behalf of Mr. Sterling.
In other words, it is quite possible for information to be classified without it qualifying as “national defense information” for purposes of the Espionage Act. Classified diplomatic or law enforcement information, for example, would generally be outside the scope of “national defense information,” as would some types of classified intelligence information. (On the other hand, it is also conceivable that some information that is formally unclassified could nevertheless be “national defense information” which is protected by the statute.)
Although the text of the Indictment of Mr. Sterling labels the Counts against him as “Unauthorized Disclosure of Classified Information,” “Unauthorized Retention of Classified Information,” and so forth, those actions are not what the statute prohibits, the defense accurately noted:
“A brief review of cases brought under 18 USC 793 demonstrates that prosecution for the alleged oral disclosure of ‘national defense information’ is not common which may be why the Indictment incorrectly lists these charges as classified information disclosures.”
Furthermore, the defense said it “reserves the right to challenge the constitutionality of 18 USC 793 as applied in this case.” But previous challenges to the constitutionality of the statute have not been successful.
The defense motion for a “bill of particulars” also revealed that the government had gathered telephone, credit card and bank records of New York Times reporter James Risen, the presumed recipient of Mr. Sterling’s alleged disclosures. This was first reported by Josh Gerstein in “Feds spy on reporter in leak probe,” Politico, February 25. See also Marcy Wheeler’s commentary.