Outside the Beltway

Private Citizens Can be Prosecuted for Revealing State Secrets

James Joyner · Friday, August 11, 2006 · 5 comments

Jonathan Adler passes on word that,

The federal government may prosecute private citizens who illegally receive and retransmit classified information, held federal district court Judge T.S. Ellis III yesterday [Aug. 9] in United States v. Rosen. Judge Ellis denied a motion to dismiss filed by Steven Rosen and Keith Weissman, two former employees of the American Israel Public Affairs Committee (AIPAC), who are being prosecuted under the Espionage Act for obtaining classified information and communicating it to third parties, including members of the media.

There is a major qualifier: “Any violation of the statute must be both knowing and willful, Judge Ellis ruled, narrowing the implications of the decision.”

The ruling is based on three challenges raised by the defendants:

First, they argue that the statute, as-applied to them, is unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment. Second, they argue that the statute, as-applied to them, abridges their First Amendment right to free speech and their First Amendment right to petition the government. Third, defendants assert the First Amendment rights of others by attacking the statute as facially overbroad.

The “vagueness” and “overbroadness” are incredibly arcane and of little interest to most non-lawyers. The other First Amendment arguments, though, are worth exploring. Judge Ellis persuasively rebuts these claims through both logic and citation of precedent. Noting that governmental limitations of freedom of speech and the press must meet strict balancing tests, he observes that,

But importantly, the defendants here are not accused merely of disclosing government secrets, they are accused of disclosing NDI [National Defense Information -ed.], i.e., government secrets the disclosure of which could threaten the security of the nation. And, however vital an informed public may be, it is well established that disclosure of certain information may be restricted in service of the nation’s security, for “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)). And, as the Supreme Court has repeatedly noted, one aspect of the government’s paramount interest in protecting the nation’s security is the government’s “compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.” Snepp, 444 U.S. at 509 n.3. Thus, the right to free speech and 45 the value of an informed citizenry is not absolute and must yield to the government’s legitimate efforts to ensure “the environment of physical security which a functioning democracy requires.” Morison, 844 F.2d at 1082. This point is best expressed in the Supreme Court’s pithy phrase that “while the Constitution protects against the invasion of individual rights, it is not a suicide pact.” Aptheker, 378 U.S. at 509 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963)). 46

This is something about which most agree in principle. Application, however, is enormously difficult. Where does one draw that line?

This case is especially difficult in that the defendants do not have security clearances.

The defendants argue that unlike Morison, Marchetti or Snepp, they did not agree to restrain their speech as part of their employment, and accordingly their First Amendment interests are more robust. […] In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure. This position cannot be sustained. 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 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.

There is also a long explication of the various concurring opinions in the Pentagon Papers case (NYT v. US) making the argument that even the prohibition against prior restraint has its limits.

Finally, Ellis points out that,

The conclusion that the statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. Indeed, the basic terms and structure of this statute have remained largely unchanged since the administration of William Howard Taft. The intervening years have witnessed dramatic changes in the position of the United States in world affairs and the nature of threats to our national security. The increasing importance of the United States in world affairs has caused a significant increase in the size and complexity of the United States’ military and foreign policy establishments, and in the importance of our nation’s foreign policy decision making. Finally, in the nearly one hundred years since the passage of the Defense Secrets Act mankind has made great technological advances affecting not only the nature and potential devastation of modern warfare, but also the very nature of information and communication. These changes 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.

Agreed. Ellis is right, however, in saying such judgments are the province of the elected representatives of the people, not the judiciary.

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