Problems with the Espionage Act – by Benjamin Wittes


Benjamin Wittes is a senior fellow in Governance Studies at The Brookings Institution. He is the author of the forthcoming Brookings book, Detention and Denial: The Case for Candor after Guantanamo. His previous books include Law and the Long War: The Future of Justice in the Age of Terror, published in June 2008 by The Penguin Press, Starr: A Reassessment, which was published in 2002 by Yale University Press, and Confirmation Wars: Preserving Independent Courts in Angry Times, published in 2006 by Rowman & Littlefield and the Hoover Institution. He is editor of the 2009 Brookings book, Legislating the War on Terror: An Agenda for Reform. Between 1997 and 2006, he served as an editorial writer for The Washington Post specialising in legal affairs.

Problems with the Espionage Act


Thursday, December 2, 2010

by Benjamin Wittes

Amid the proliferating cries for prosecuting Julian Assange and shutting down Wikileaks–an undertaking for which, I should note, I harbor no small sympathy–a few people have noted that the Espionage Act has, well, some problems as a legal instrument for the project. As Josh Gerstein’s storyin the Politico notes, the First Amendment would have something–nobody is quite sure what–to say about a prosecution of something kind of like a media organization for the dissemination of something kind of like news. What’s more, the law is very old–World War I era–and very vague.

The law also has two additional problems that receive relatively little attention but which are important in contemplating its use. The first is that it contains no limiting principle in its apparent criminalization of secondary transmissions of proscribed material. The relevant section, 18 U.S.C. 793 (e), reads:

Whoever having unauthorised possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defence, or information relating to the national defence which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, wilfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or wilfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it . . . shall be fined under this title or imprisoned not more than ten years, or both.

By its terms, it criminalizes not merely the disclosure of national defense information by organizations such as Wikileaks, but also the reporting on that information by countless news organizations. It also criminalises all casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them–in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents. Taken at its word, the Espionage Act makes felons of us all. As long as this deficiency remains, it will be a poor instrument against an outlet like Wikileaks, precisely because there will be no way in principle to distinguish between the prosecution of Assange and the prosecution of just about anyone else–from the New York Times to the guy on the street who reads the newspaper and talks about it. That will make Espionage Act prosecutions seem like far more of a menace to legitimate speech than would a prosecution under a better-drawn law. There are ways to fix this problem–an intent element and a clear limitation to material not already made public would be a start–but as long as it goes unfixed, I oppose any prosecutions under it for secondary transmissions. (Contrast the Espionage Act on these points with the law protecting intelligence agents’ identities, 50 U.S.C. 421, and the law protecting cryptographic systems, 18 U.S.C. 798)

The second problem is that the statute, by its clear terms, does not cover the overwhelming bulk of the material that Wikileaks disclosed. The Espionage Act is not a general bar against leaking or publishing classified information. It covers only material “relating to the national defense.” There are, no doubt, some diplomatic cables that “relate to the national defense”–a term without a great deal of interpretive history of which I am aware–but most of them clearly do not. Qaddafi’s personal habits and buxom attendant? Not even close, in my opinion. Medvedev’s and Putin’s Batman and Robin routine? Simply not plausibly within the ambit of the statute’s language. Even the desire of Arab states to see the U.S. deal with Iran may be a bit of a stretch. After all, their point relates not to our national defense but to their own. I don’t doubt that there are any number of cables that prosecutors might contend fit under this statute, but it would be a contested question in any prosecution, and the universe of viable cases under the Espionage Act seems to me far narrower than those clamouring for a Wikileaks prosecution probably imagine. I also suspect that if a case does materialize, the earlier leaks of Defense Department material–which, as a group, relate to the national defense much less ambiguously than do State Department cables–probably provide more fertile opportunities than do the State Department cables.

Interesting Reader Responses on Wikileaks

by Benjamin Wittes

I’ve received a number of interesting responses to my post from Sunday on rewriting the Espionage Act. Two bear particular attention. The first is an email from a scholar who prefers to remain anonymous, who writes:

In your proposal, you require that the information be “properly classified,” instead of just “classified.”  I’m wondering about your thinking behind that.  While it’s true that there’s a tremendous amount of over classification, would we really want to license potential disclosers to second-guess whether information was properly classified, and to give judges [or] juries the power to decide, in the context of a criminal prosecution, whether the material was originally classified properly?  Once the material is classified, potential disclosers are on full and fair notice; that’s a clean, objective standard.  But if the message to potential disclosers is that disclosure is fine if you think classification was not proper in the first place, most of these leakers are going to convince themselves the material should not have been classified to begin with. True, they are taking a risk that a jury would disagree with them, but still, this is a very large hole in the proposed statute. And you might start raising issues of intent:  if a discloser believed in good faith that the material should not have been classified, even if he turns out to be wrong, can he be criminally liable?  That’s why one might think the objective standard–is it classified–makes more sense.

The second response, from Tom Malinowski of Human Rights Watch, reads in relevant part:

Shouldn’t it also matter that Assange is not a US citizen or resident?  If Assange has a legal responsibility to protect any document that the U.S. government has stamped “secret,” do you and I have a commensurate legal responsibility to protect French or Chinese or Iranian secrets?  Could those countries prosecute us for publishing them?

The first point is easier for me to address than the second, because the language was a matter of deliberate choice on my part. I used the language “properly classified” precisely to avoid a bright-line rule in an environment of rampant over classification. My earliest introduction to the subject of over classification, back in the early 1990s, involved what remains in my mind the most brilliant Freedom of Information Act request ever filed. Steve After good of the Federation of American Scientists requested that the National Archives declassify and release the oldest still-classified document in its possession. It turned out to be a World War I-era intelligence report filled with intelligence methods–methods like stuffing messages inside of a skeleton key (not a joke). Nobody doubts that there is a huge amount of wrongly-classified, over classified, or should-not-be-still-classified material out there. And it seems to me essential if we are going to have criminal liability for publishing government documents that the burden be on the government to prove that it was properly classified–and that defendants have the opportunity to convince a juror that conviction is unwarranted because the material wasn’t really sensitive. I might feel differently about this point for leakers within the government, who have taken upon themselves the burden of protecting classified information and have thus embraced a process–flawed though it may be–for classifying and declassifying material. But for secondary transmissions by people who have taken no such oath, limiting liability to circumstances in which the government can prove to a jury beyond a reasonable doubt that the material is “properly classified” seems to me an important civil liberties safeguard.

Tom Malinowki’s point–which was raised by other readers as well–is one I had not considered fully in my impulsive attempt to rewrite the statute. And it seems to me a profound one, one I am not certain I know how to fix. There are actually two questions here, and they are worth disentangling. There is the question of the propriety of applying law aimed at protecting U.S. national security to those who have no obligation to U.S. national security and are not generally subject to U.S. jurisdiction. And then there is the question of reciprocity, which Tom makes pointedly with reference to Chinese and Iranian secrets. Would we want other countries holding our nationals accountable for publishing their secrets when they are unable to keep them?

As to the first question, there are any number of statutes that impose criminal liability on foreigners abroad for acts that impinge on American interests–killing Americans, for example–so there’s certainly no problem in principle with having a statute reach beyond our shores and beyond American citizens. But Tom is right that this statute has a nuance that makes one pause before treating it as just another extraterritorial application of American law. That nuance is that the entire moral force of a law like this flows from some notion that the person violating it had some obligation to protect the secrets in question. This notion is why we have a dramatically higher comfort level with prosecuting leakers (who promised to protect classified information) than we do with prosecuting secondary transmitters (who did not make any such promise). When we impose liability on secondary transmitters, including the press, we are essentially saying that their duty as Americans or people otherwise subject to this country’s laws conveys some obligation to protect some information some of the time. But Assange does not even meet this more attenuated standard. And I’m not sure I know by what logic of reason–rather than simple power–the United States Congress can obligate him to keep the State Department’s secrets for it.

This, in turn, leads ineluctably to Tom’s reciprocity point: If Congress can make such a demand on Assange, the U.S. would be in a bad position to object if the Congress of People’s Deputies made a similar demand on the Washington Post. I actively want more Chinese secrets revealed against the will of the Chinese government. Indeed, were Wikileaks spending more of its time undermining authoritarianism and less of its time undermining democracies, I might admire it. And I would find outrageous efforts by foreign governments to require American news outlets to keep their secrets for them. I’m not against double standards in all circumstances, so it’s possible that the right answer here is hypocrisy: Doing what we need to do and objecting when other countries do the same. But I agree with Tom that the situation would be very awkward.

All of which is to say that I am tentatively persuaded that some jurisdictional limitation is probably appropriate–at least in application, if not in the statute itself. I’m not sure what it would look like, but I suspect that it would probably get Assange off the hook.

I will give some more thought to this point and welcome reader input. In the meantime, that sex crimes case in Sweden is looking better and better as way of neutralising Assange.


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