A court ruling that interpreted the term “national defense information” expansively to include unclassified, non-governmental information could open the door to a new series of anti-leak prosecutions under the Espionage Act, warned a petition that was filed in the Ninth Circuit Court of Appeals this week.
There is no statute that outlaws the mishandling of “classified information” generally. That term is not used in the Espionage Act (18 USC793), which instead prohibits the unauthorized disclosure and transmission of information “relating to the national defense.” To fall within the scope of the Espionage Act, information must pertain to the national defense and, previous court rulings have explained, it must also have been “closely held by the United States government.” In practice, this limitation has almost always meant that only classified U.S. government information can be subject to the Espionage Act.
But in the case of Dongfan Greg Chung, who was convicted on charges of economic espionage, a court ruled (and an appeals court last month upheld) that Chung would be sentenced under the guideline for “gathering national defense information” even though none of the information he handled was classified or even held by the government.
“For the first time in any reported case, the panel decision construes the phrase ‘national defense information’ [in the sentencing guideline] to include unclassified material produced by, and in the possession of, a nongovernmental entity,” wrote attorney John D. Cline in an October 10 petition for rehearing. “If permitted to stand, the panel decision will dramatically expand the scope [of this sentencing guideline].”
Furthermore, “The decision logically extends to the parallel language (‘relating to the national defense’) of [18 USC 793] as well, and it thus invites prosecutions under the Espionage Act for mishandling unclassified, nongovernment information, as long as that information has some bearing on the national defense and has not been made public,” wrote Mr. Cline, an experienced litigator of national security cases.
In affirming Mr. Chung’s conviction, an appeals court last month said the National Defense Information guideline was applicable in this case. “Defendant [Chung] gathered and gave to Chinese officials nonpublic information related to the X-37 space vehicle, the Delta IV Rocket, the F-15 Fighter, and the Chinook Helicopter. When transmitting that secret information, which related to the national defense, Defendant had the intention to advantage China,” said the September 26 appeals court ruling (appended to the Petition).
But that description “is wrong in two crucial respects,” Mr. Cline argued. “First, most of the material to which the panel refers was not ‘secret’ in any respect, and none of it constituted a government secret. None of the material was classified at the Secret (or any other) level, nor was there evidence that it was otherwise ‘closely held by the United States government’.” (Moreover, “the record contains no evidence that Chung ‘transmitted’ any ‘secret’ material to China,” he wrote.)
“Every reported decision applying [the national defense information sentencing guideline] has involved classified information, as has virtually every § 793 [Espionage Act] prosecution for the last sixty years,” the petition said. “The panel decision marks a sharp and unjustified departure from this unbroken line of authority interpreting [the sentencing guideline] and § 793.”
The court’s expanded interpretation of “national defense” information “requires correction by the en banc Court, before the government seizes on it as a basis to expand the scope of the Espionage Act and the harsh sentencing guidelines that accompany it.”
“The issue has particular significance now,” the petition stated. “The government has recently launched a spate of § 793 prosecutions against persons inside government who allegedly leaked classified information to reporters. That use of the Espionage Act is itself controversial. Armed with the panel decision, however, the government can now use § 793 and its accompanying sentencing guidelines to prosecute nongovernment persons who disclose (or even have unauthorized possession of) nongovernment, unclassified material, as long as a grand jury concludes that the person acted ‘willfully,’ the material is nonpublic, and it has some relationship to the national defense.”
“If such a dangerous and unprecedented expansion of the Espionage Act… is to be undertaken, Congress and the Sentencing Commission should do so — not the courts,” the petition concluded.
Update: The government filed its opposition on November 22, and on December 16 the Court of Appeals denied the petition.