Problems with the Espionage Act

By Benjamin Wittes
Thursday, December 2, 2010, 7:21 AM

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 story in 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 unauthorized 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 defense, or information relating to the national defense 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, willfully 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 willfully 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 criminalizes 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 clamoring 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.