Comment: Time to Clarify Dangerous Old Spy Law

FREE SPEECH/FREE PRESS -- "In May, federal prosecutors made the dramatic announcement that they were abandoning their prosecution under the Espionage Act of two former American Israel Public Affairs Committee (AIPAC) lobbyists for disclosing classified information," observe Washington, D.C. attorneys Steve Rosen and Keith Weissman, defendants in the case, writing in the National Law Journal. They say their experience is a clear example of how dangerous the World War I era Espionage Act can be to the political speech of private citizens—or the work of journalists.

Seeking to justify their failed four-year pursuit of the defendants, prosecutors accused Senior U.S. District Judge T.S. Ellis III of imposing "additional intent requirements" that were "not mandated by statute." Indeed, Ellis, who sits in Alexandria, Va., had announced that he would construe the provision under which Steven Rosen and Keith Weissman were charged as requiring a heightened state of mind on the defendants' part, the knowledge that their actions could potentially harm America's security — a burden the government could not meet.

Ellis ruled as he did in an effort to ensure that the highly unusual prosecution did not run afoul of the First Amendment. Espionage cases with serious free speech concerns do not come around that frequently, but when they do, they test, in a way that few cases ever do, our commitment to maintaining an open society.

The collapse of the AIPAC prosecution makes clear that we must urgently reform the 1917 Espionage Act, both to bring it up to date with a modern understanding of the First Amendment and to minimize the prospects of costly and unsuccessful indictments in the future. There is a significant risk, however, that the failures in the AIPAC case will be forgotten and the whole thing will just fade away (as it seems to have already done) until the next time the Department of Justice spots a tempting target. Congress must not let this happen because the vagueness that now surrounds the law is harmful to free speech and national security interests alike.

The problems DOJ faced in the AIPAC case were a predictable result of its attempt to stretch the act beyond its established parameters. In a typical espionage case in which a defendant is accused of acting as a mole inside the U.S. government and passing sensitive material to a foreign power, prosecutors need only show that the accused acted "willfully." This standard, which essentially means that a person intended to violate the law and did not make an innocent mistake, is contained in the statute.

The AIPAC case was very different. Prosecutors merely alleged that Rosen and Weissman, both civilians and neither employed by the government, obtained classified information about Iran's nuclear program through conversations with Lawrence Franklin, a Pentagon analyst, and then shared these secrets with reporters and foreign policy experts in an effort to influence U.S. strategy in the region.

The espionage laws last brushed up in the courts against free speech protections 25 years ago when the government prosecuted Samuel Loring Morison, a naval intelligence officer, for leaking secret photographs of a Soviet aircraft carrier to Jane's Defense Weekly. Morison claimed he wanted to alert the public to the buildup of the Soviet navy. He was convicted and jailed, and his conviction was upheld by a federal appeals court.

However, because free speech was at issue — Morison's disclosure was to the press, and he did not work for a foreign power — the courts felt bound to read additional constraints into the statute to make it constitutional. Judge James Dickson Phillips of the U.S. Court of Appeals for the 4th Circuit warned against such judicial gymnastics. The espionage laws "as now broadly drawn are unwieldy and imprecise instruments," he wrote, and forcing judges to add new protections not found in the text "on a case-by-case basis [is] a slender reed upon which to rely for constitutional application of these critical statutes." His concurring opinion called upon Congress to revise the act "through carefully drawn legislation."

Since that decision, Congress has done nothing to provide the clarification most needed after Morison: that, although the law may reach an official with a security clearance who dishes to the press, it does not apply to private individuals without security clearance who are not agents of foreign powers. The continuing uncertainty about the boundary between the Espionage Act and the First Amendment is reflected in Ellis' holding that the prosecution would have to show not only that Rosen and Weissman's activities were "potentially harmful" to the United States but, crucially, that they also "knew" this fact.

On one level, this first-of-its-kind ruling indicates that the Espionage Act might be constitutionally applied to private U.S. citizens, so long as some higher state-of-mind requirement is satisfied. However, the fact that the government abandoned a four-year, multimillion-dollar prosecution because it could not accept Ellis' view of what this requirement entailed shows that the Espionage Act remains mired in uncertainty. It's well past time for Congress to define the Espionage Act's application to defendants like Rosen and Weissman in this case (or journalists or academics in the next) who are neither "spies" nor sworn to keep government secrets.