The vagueness of the Espionage Act

From the Spring 2006 issue of The News Media & The Law, page 5.

The prosecution of Steven J. Rosen and Keith Weissman for disclosing information national security reporters routinely publish suddenly illuminated for journalists just how unclear the standard is for lawful discussions and reporting on national security issues.

Section 793(e) of the law makes it unlawful for:

"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."

Under this law, is it illegal for reporters to publish national security information learned from conversations or just from physical objects like documents or photos?

On the one hand, the law refers to people who have "information," which could mean intangible data. But the law also refers to the criminal as a "possessor," which suggests ownership of a physical object. And the law doesn't specifically refer to verbal information, while it lists 13 different types of physical objects. The drafters clearly knew how to be specific, so, if they meant orally communicated data, why would they leave out "conversations" or "telephone calls"?

Besides, the last section of the law only makes sense if it applies strictly to physical objects, defense attorneys John N. Nassikas III and Abbe David Lowell argued in their briefs with the help of Viet D. Dinh, former assistant attorney general who is now a Georgetown law professor. How can recipients of oral communications who "retain" it in memory "deliver" it back to the United States?

And what type of information is illegal to report?

The law criminalizes communicating information that "could be used to the injury of the United States or to the advantage of any foreign nation."

But any national security information by virtue of being national security information could "be used to the advantage of another nation." And what about information that harms the administration's political interests but benefits the public — is that an injury to the United States?

And when government officials give national security information to reporters, how do reporters know if their possession is "unauthorized"?

Because of the important constitutionally protected public duty that reporters and lobbyists perform, Congress never intended to criminalize their work when it wrote the World War I-era law, defense attorneys argued in their briefs filed in the U.S. District Court in Alexandria, Va.

A 1980 decision by the U.S. Court of Appeals in Richmond (4th Cir.), they wrote, found that: "Although Congress agreed to statutes aimed at espionage, it specifically rejected a request of the President that it enact a criminal statute to punish the publication of defense information in violation of presidential regulations. Concern for the public debate of defense issues and distrust of a war-time president's powers converged to defeat the proposal to criminalize the publication of classified information. Similar attempts were unsuccessful immediately after World War II, in the late 1950s, in the mid 1960s, and in the 1970s."

The law's original purpose was to punish spies, not lobbyists or reporters, defense counsel argued.

Perhaps the Espionage Act draws a line that, if crossed, exposes journalists to jail. But the vague language that potentially conflicts with the law's purpose makes it not at all clear where that line is. — SB