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August 11, 2006
Espionage Act Covers Everyone

The government can prosecute anyone connected with the release of classified information, even if the suspects hold no clearance, a federal judge ruled in the AIPAC case. While the ruling primarily affects the lobbyists involved in the espionage investigation, it has far-reaching implications for others, particularly reporters:

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Judge ruled that any First Amendment concerns regarding freedom of speech involving national defense information can be superseded by national security considerations.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

As Bruce Kesler notes, the applicability of this ruling to the national-security disclosures of the New York Times must have Bill Keller a little sweaty. Judge Ellis even uses the argument of a cleared agent disclosing information to the media in order to demonstrate that the nature of the recipient does not change the nature of the crime for the defendant. Using his logic, the same can be said for the reporter who knowingly discloses classified information to the public.

This does not address the political problems such a prosecution would create. Even the Bush administration would not be likely to attempt a criminal prosecution of reporters under the Espionage Act. Convincing a jury of newspaper readers and television-news consumers to convict reporters such as James Risen and Eric Lichtblau would probably be impossible. This ruling does give the government more of a legal basis to pursue testimony under subpoena to find their sources and prosecute the original violators under the Act.

That extra leverage will force reporters to act with a little more caution before revealing the nation's security programs to our enemies. Perhaps the next administration, unburdened by the excessive partisanship that both sides have exhibited, can press a prosecution to at least get the point across to an almost completely irresponsible media community.

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Posted by Ed Morrissey at August 11, 2006 5:35 AM

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