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The Espionage Act of 1917, Part II
Posted by: Dale Franks on Thursday, July 14, 2005

A commenter to my previous look at the Espionage Act of 1917 writes:

If on September (the) 10th, 2001 a government official leaked to a reporter classified information concerning the attack the following day, and requested anonymity, would it be a threat to the freedom of the press and the first amendment to send that reporter to jail for refusing to reveal his or her source?

Your answer to this will explain a lot to me concerning the point of your article.

I think I can say, before I even begin, that my answer will explain a lot more than even you think it will. But the question itself, as framed, is unanswerable.

Let's posit the existence of two alternate universes. In one universe, a reporter for the CBS Evening News obtains this memo on 9 Sep 01:

TOP SECRET
NOFORN
FROM: Director, FBI
SUBJECT: Planned Terrorist Activity for 9/11/01
TO: POTUS

1. Current information ELINT sources confirm a major terrorist attack is scheduled to occur on 9/11/01. Terrorist subjects will be boarding a number of airline flights on that date with the specific intent to hijack a number of aircraft flying our of Boston International Airport (BIA). Many of the subjects have received pilot training. The possibility exists that these hijackings may be a prelude to using commercial aircraft in suicide bombing missions by crashing the aircraft into buildings in Washington DC or NYC.

2. All flights to NYC or Washington DC from BIA will contain at least five (5) armed federal agents from either the FAA or FBI. Passengers who are of young males of Middle Eastern extraction will be identified for special attention by FAA, FBI, and Mass. State Police plainclothes officers in the passenger terminals.
TOP SECRET
NOFORN

The reporter splashes this all over the CBS Evening news on the 9th, and on the morning of the 10th, it's on the front page of every newspaper in the country. The terrorists decide to delay their plan, and use their regular communications channels to send disinformation to the effect that the operation has been canceled. Three weeks later, after enhanced security has been stood down, the terrorist, flying out of Philadelphia, perform their mission resulting in thousands of civilian deaths.

In the other universe, the CBS reporter publicizes the following classified memo:

TOP SECRET
NOFORN
FROM: Director, FBI
SUBJECT: Planned Terrorist Activity
TO: POTUS

1. Current information ELINT sources confirm a major terrorist attack is scheduled to occur on US soil at some time in the near future. No specifics about the nature or exact timing of the attacks have been received.

2. All FBI offices have been notified to step up efforts to gather more information.
TOP SECRET
NOFORN

In Universe 2, the governor of Massachusetts sees the report on the CBS Evening news, calls state police HQ at 1010 Comm Ave and requests that the Staties use all available manpower to substantially increase plainclothes patrols at BIA. BIA Airport police also increase their manpower. The hijackers, confident that their plot hasn't been broken, decide to go ahead with their plans. As a result, the hijackers are identified on 9/11, and detained, whereupon the attacks are foiled when one of the hijackers breaks under questioning by the State Police.

So, in one case, the release of the classified information prevented law enforcement officials from foiling the 9/11 attacks. In the other, the release caused the 9/11 attacks to be foiled.

In one case, the release of the information was positively harmful, and I think the government would be keenly interested in identifying the moron whose gross incompetence cause the death of thousands of Americans. They would, no doubt, jail the journalist without hesitation in order to obtain the source of the classified material. In the other case, jailing the journalist would be much more problematic, because the outcome was positive.

But, the EA doesn't make that distinction. Under the EA, both releases of classified information are equally liable to 10 years behind bars, for both the leaker and the journalist. If you don't think the specter of going to prison for 10 years won't have a chilling effects on leaks then you just aren't thinking clearly.

Once the EA becomes a general anti-leak provision, then the administration has a hugely expanded power to jail journalists for publishing anything the administration doesn't want published. In Britain, for example, the Official Secrets Act allows the government to descend on Fleet Street with D-notices, to prevent publication of anything that the government doesn't want published.

Using the EA as an unofficial Official Secrets Act, would essentially allow the president to do much the same thing. As soon as the president gets wind of the fact that, say, the Washington Post is about to print something embarrassing, then all he has to do is classify it as Secret, then send a few FBI agents to the Post's offices to inform them that if they publish, they'll all be arrested and prosecuted under the EA for publishing classified information.

So, let's say you have another "Pentagon Papers"-type case, where you can prove, by publishing classified information, that the Administration is lying about vital national security matters. Once EA prosecutions for releasing this information is legitimized, the government can prevent the publication of the "Pentagon Papers" by hauling off the journalists for jail, prior to publication, simply because they received the classified information.

That's really the problematic thing about leaks. We depend, to a very large degree, on the editorial judgment of the press when it comes to evaluating leaks. If the leak of classified information will harm the country, we depend on gentlemen's agreements with the media not to publish information. And, by and large, that is a system that works. Maybe it's not the best system, and maybe the press isn't completely trustworthy to operate under that system, but it allows the press to publish information about malfeasance by the government that wouldn't otherwise come to light.

The problem with the EA is that is has a hole big enough to drive a truck through when it comes to abuse of power by the Administration. Espionage is usually undertaken at the behest of a foreign power. Unfortunately, the language of the EA doesn't make that clear. The language is so broad that it is practically an invitation to abuse, because it doesn't define espionage as an act undertaken at the behest of the heathen foreigners. It merely defines it as the release of information that could harm the US or could benefit a foreign power. That's not a loophole, that's a three-lane exit ramp.

Once the EA becomes a general leak provision, the press' independent judgment about the public's need to know is completely eliminated. Instead, the Administration has absolute power to use the full law enforcement power of the federal government to muzzle the press. The president lied about a matter vital to national security? No problem. Classify it, and threaten the press with 10 years in prison if they even hint about it. The president threatens his brother's business competitors with endless IRS audits, unless they send business his brother's way? No problem. Classify it, and threaten anyone who even hints at the First Brother's business practices with a dime in Marion, Illinois.

So, let's say that you absolutely hate George W. Bush, and you think he's guilty of egregious abuses of power. In fact, you think he should impeached for his reckless abuse of power. Are you, then, seriously arguing that he should have even more power to attempt to muzzle the press through the use of the EA? Don't you realize that by asking for prosecution of Karl Rove under the EA, you are legitimizing its use for purposes that serve to insulate the Administration from press criticism in a far more general sense?

If so, then I have to ask, are you smoking crack?

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As I’ve mentioned in the other thread, this really isn’t the case. The application of the EA in this case would be very specific, as opposed to very broad. The reason is that the burden of proving ’intent to injure’ is hard to meet, and would be nearly impossible to prove against a journalist merely doing his job and breaking a story.

So the EA may become a leak law, but it would apply in almost every case to those who have security clearances, and who have orally affirmed that they are aware that the transmission of national security information to an unauthorized party is injurious to the United States, and that ignorance of whether information is classified is not an excuse.

In reading the Franklin indictment, it seems clear to me that this has been the intention of this affirmation all along - to have every person with a clearance orally affirm that violating their classified nondisclosure agreements can and probably will be construed as ’intent to injure’ U.S.

There’s nothing broad about something that is only built in to the process of getting a national security clearance.

Written By: Jimm
URL: http://

I will admit, however, that a strong whistleblower provision in the law needs to exist alongside application of the EA in this manner, in order to protect legitimate dissent and whistleblowing, which this Plame scandal is neither.

Here is a quote from Ronald Reagan about how revelations of the identities of our intelligence community cannot be justified for political reasons:

The Congress has carefully drafted this bill so that it focuses only on those who would transgress the bounds of decency; not those who would exercise their legitimate right of dissent. This carefully drawn act recognizes that the revelation of the names of secret agents adds nothing to legitimate public debate over intelligence policy. It is also a signal to the world that while we in this democratic nation remain tolerant and flexible, we also retain our good sense and our resolve to protect our own security and that of the brave men and women who serve us in difficult and dangerous intelligence assignments.

Ironically, these were Reagan’s words in signing the Anti-Agee Act into law, and helps us understand why Bush Sr. has so hated these kind of leaks, and likely why he has reportedly personally made condolescences to Joseph Wilson about the exposure of his wife’s identity in this matter.

Written By: Jimm
URL: http://

For anyone who has not made such an oath, the burden would be far greater to show intent to injure.

Sorry, but you’re just flat wrong. The 4th circuit held that a leak might come from "the most laudable motives, or any motive at all," and it’s still a crime. You keep harping on intent, and intent just isn’t a serious bar. According to the 4th Circuit Court of Appeals, intent is essentially irrelevant.

Written By: Dale Franks
URL: http://www.qando.net

On Captain’s Quarters, I note Captain Ed has a story that the London cell seem to have been a backup team, after the plans and previous cell were discovered. The first commenter has this to say:

I seem to remember a major MSM entity breaking this story despite pleas from our intelligence not to. I wonder if their investigation would have caught the "B team" had the source not been revealed.

Posted by: Andrew on Coffee at July 14, 2005 10:38 PM

Seems that your alternate universe #1 might not be a hypothetical, Dale.

Written By: Aaron Pollock
URL: http://

This is exactly the reason we have JURIES decide guilt and innocence.
If the government brings a leaker to trial on a matter that merely protects the Administration (or bureaucracy - different things) against the public interest, a jury of the defendent’s peers has to the power to decide the justice of the accusation.

Granted, the prospect of defending one’s self or organization will raise the threshold for publication, and that might be a good thing. Of course, journalists seem devoted to public displays of their own heroism and publicly facing 10 years in the slammer to reveal matters of true public interest is one way to really earn the title "hero."

Still, EA sure sounds like a bad law from a Democratic administration that brought us the Palmer Raids. It certainly appears that Congress should revisit it.

Written By: Whitehall
URL: http://

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