Thursday, August 10, 2006

You, me, anybody...prosecuted!

From Secrecy News:


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 August 9 ruling by Judge T.S. Ellis, III, denied
a motion to dismiss the case of two former employees of the American IsraelPublic
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superseded by national security considerations."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 inpreserving its national
defense secrets is sufficient to trump theFirst 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 over broad 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 todocuments], 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 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 UnitedStates' conduct in the society of nations."

Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.


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