Secrecy News

Recipients of “Leaks” May Be Prosecuted, Court Rules

In a momentous expansion of the government’s authority to regulate public disclosure of national security information, a federal court ruled that even private citizens who do not hold security clearances can be prosecuted for unauthorized receipt and disclosure of classified information.

The ruling (pdf) by Judge T.S. Ellis, III, denied a motion to dismiss the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who were charged under the Espionage Act with illegally receiving and transmitting classified information.

The decision is a major interpretation of the Espionage Act with implications that extend far beyond this particular case.

The Judge ruled that any First Amendment concerns regarding freedom of speech involving national defense information can be superseded by national security considerations.

“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 [i.e. not holding security clearances] 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,” Judge Ellis wrote (p. 53).

The provisions of the Espionage Act are not impermissibly overbroad or unconstitutional, the Judge ruled, because they are limited by the requirements that the prohibited behavior be both knowing and willful.

“The government must… prove that the person alleged to have violated these provisions knew the [restricted] nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless.”

“Finally, with respect only to intangible information [as opposed to documents], the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation….”

“So construed, the statute is narrowly and sensibly tailored to serve the government’s legitimate interest in protecting the national security, and its effect on First Amendment freedoms is neither real nor substantial as judged in relation to this legitimate sweep,” Judge Ellis wrote (p. 63).

Others will disagree.

For example, the classified 2004 report of Maj. Gen. Antonio Taguba on prisoner abuse at Abu Ghraib prison clearly fit the court’s description of national defense information that is closely held by the government. Moreover, its unauthorized disclosure was likely to, and did in fact, harm the United States. And yet that disclosure also served an important national purpose in prompting a public debate over U.S. policy on prisoner detention and interrogation.

But under Judge Ellis’ new interpretation, those reporters and others who communicated this information to the public could apparently be prosecuted under the Espionage Act.

Judge Ellis concluded his opinion by noting that the provisions of the Espionage Act “have remained largely unchanged since the administration of William Howard Taft.”

Technological and other changes over the past century “should suggest to even the most casual observer that the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations.”

14 thoughts on “Recipients of “Leaks” May Be Prosecuted, Court Rules

  1. Thank you for bringing this to the public attention, Steven!

    This continued expansion of government policy over constitutional rights is mind-boggling — as is the fact that most folks don’t seem concerned about it at all.

    We’ve used (appropriately, I hope) your above story as the basis for a brief blurb on that points to your Secrecy News to read the full story. I hope that’s OK.


  2. Aren’t the 2 cases different? Publishing in a newspaper can be in the interest of the nation, if it exposes bad (illegal or just ineffective) acts, and is a poor form of espionage, in that the information is stolen but since it’s published, the interested parties who did the stealing don’t benefit exclusively. Real espionage, on the other hand, doesn’t expose government action to citizens and so lacks the argument of “sunshine” benefits that outweigh the bad effects of exposure. It seems to me that the question of national interest would favor journalistic exposure over espionage pretty much every time, and so protect 1st amendment disclosure, even given this court’s decision.

    [Although the defendants were charged under “the Espionage Act,” they are not accused of espionage, but of unlawfully receiving and transmitting national defense information. What they allegedly did is closely akin, if not identical, to what national security reporters and others such as myself do every day. That is what makes the court ruling so extraordinary. –SA]

  3. “…they are not accused of espionage, but of unlawfully receiving and transmitting national defense information.”

    Ummmm… rrrright. I don’t want to steal from you, I just want to receive money that you currently own. And I’m not shooting at you, I am causing bullets to be propelled in your direction.

  4. One area of this story that may need clarification is the following:

    “”The government must… prove that the person alleged to have violated these provisions knew the [restricted] nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless.””

    Does the requirement about knowing that ‘with whom they were communicating was not entitled to the information’ mean that if that person WAS actually entitled to the information, the recipient of the information could not be prosecuted under the Espionage Act?


  5. Question: I assumed that this is important enough to eventually reach the Supreme Court. Since I’m not a lawyer I cannot say whether that is true or not. Opinions?

  6. I believe that this will be decided by SCOTUS because it goes far in curbing freedoms of speech that in previous rulings have been upheld and judgment postponed until after the fact. Historically, the court has been strongly reluctant of imposing a “chilling effect” on First Amendment rights of speech. It is difficult to ascertain without reading the filings in the case just what legal arguments were presented, but the result reported is yet another peal of the death knell of the Constitution and the freedoms of the United States that have been sorely compromised under the oligarchy in power.

  7. Novak can’t be prosecuted because Plame’s name and identity are published in Who’s Who, for anyone to look up, and because the only person to ever reveal that she may have been a covert operative at one time was her husband Joe Wilson. Now possibly Joe Wilson could be prosecuted, but it doesn’t look like it because it doesn’t look like Plame was covered by the relevant statute anyway.

    By the way, I see no encroachment on free speech in the court’s determination. The relevant statute is almost a hundred years old and somehow America survived. By publishing classified info knowingly and willfully, they violated all our rights. I hope to see the prosecutions carried out to the fullest extent of the law.

  8. Who’s Who did not publish “covert operative” next to Valerie Plame’s name.

    Don’t you get tired of these silly talking points? They are so banal and stupid it seems that the intent is to frustrate any debating opposition with inanity.

  9. I guess this isn’t so bad.

    It could be much worse: no trial. Just the door banging in at midnight, and it’s all over. This is now possible if some hack administratively decides it.

    So we ought to be thankful that none have been set up yet: receiving sensitive information by email, in our post box, left in an envelope at our door, or through a phone call which are all monitored. Forget the newspapers in America. Truth now has to seep in from outside.

    A government system, so afraid its illegal actions will come to light that is must supresses the very means through which they may be exposed, is one best described as one rooted in tyranny.

    And this decision sort of puts a cherry on top of our sad cake.

    Now we can screw the rest of the amendments. Search and seizure. Property rights. Distinction between military and civilian authority.

    How dense Americans must be not to have finally figured out what’s happening.

  10. The publication of Valerie Plames’s name in Who’s Who was part of her cover, I believe. And she WAS covered by the relevant statutes. Think about it; if a covert agent’s cover has an expiration date, then all of her contacts during her time as a covert agent would be exposed and put in danger.

  11. There is no expansion here, the Judge is reaffirming the government’s authority to enforce laws already on the books. Sheesh!


  12. You know, CB, life isn’t always black and white. This is an interpretation of the vagaries of the law in regard to Constitutionality and to what extent that law reaches and may be enforced. Therefore, your oversimplification is symptomatic of the misunderstanding of most Amerians about what is slowly being done to dismantle Constitutional protections. These things don’t happen in one fell swoop. The foundation is picked at little by little until the structure simply falls. Those who are perpetrating this atrocity are counting on the naivete’, lack of education, and non-chalance of the masses to facilitate the completion of it.You are playing right into their hands….

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