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Can we rewrite the Espionage Act . . . ? Benjamin Wittes thinks so.

Benjamin Wittes

Benjamin Wittes

Over at Lawfare, Wittes presents a very good case for revision:

Currently, the relevant statutory language [of the Espionage Act] , 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 . . .  [s]hall be fined under this title or imprisoned not more than ten years, or both.

As currently written, the statute has at least four major problems (along with some minor ones I don’t treat here):

  1. The term “relating to the national defense” is not limited to properly classified information, thus potentially criminalizing far too broad a range of disclosures;
  2. The intent element, acting “willfully” with “reason to believe” that the disclosure could cause damage, is too weak to meaningfully separate the evil-doer from the member of the press who is just doing his job;
  3. It does not clearly criminalize publication at all, in contrast to other more carefully-drawn laws; and
  4. The statute does not distinguish between an initial disclosure that actually reveals closely-held secrets and subsequent disclosures that do no incremental harm. By its terms, the statute makes a criminal not merely of Julian Assange (for disclosing the cables to the New York Times and other media outlets), not merely of the New York Times (for disclosing them to the general public), but of all readers of the New York Times who emailed articles to one another or “willfully” discussed the contents of the cables knowing that the government was warning what damage their disclosure was doing.

Judicial interpretation in the AIPAC cases has addressed some of these issues to some degree, but this is not controlling law–just a single district judge’s opinion. So we have a grossly overbroad statute that, if taken at face value, is exactly the Official Secrets Act this country has never had. And while everyone acknowledges it cannot be that, nobody really knows what it therefore is.

Narrowing the statute to address these problems might leave a law that looks something like this:

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 that is properly classified and not available to the general public and, with intent that such material be used to the injury of the United States or to the advantage of any foreign nation or with reckless disregard for that possibility, willfully publishes, communicates, delivers, transmits or causes to be published, communicated, delivered, or transmitted, to any person not entitled to receive it shall be fined under this title or imprisoned not more than ten years, or both.

Such a law would be much-more-clearly constitutional than the current Espionage Act language, precisely because it would purport to cover only a far narrower range of conduct. Yet ironically, the clarity of such a law would be a disaster for the press. One of the oddities of the current Espionage Act is that its very breadth ensures its non-use against media. Because it covers so much in the way of secondary and tertiary transmission of sensitive data, it effectively covers nothing. Everyone understands that a huge range of its possible applications are unconstitutional, and nobody knows what conduct violates that core of it that could actually sustain a prosecution. Narrow it to a serious attempt at identifying that core, and you effectively legitimize the effort to use it.

This makes a lot of sense. I agree that this revision would provide much clearer standards and be a tremendous improvement. But here’s my worry: If there were to be a serious effort to revise the Espionage Act, would we end up with something worse? Even if a member of Congress introduced Ben’s revision verbatim, I fear that given the current tenor of Congress, we might end of with a version that would be far to restrictive of the First Amendment. As bad as the Espionage Act is, we could do far worse. Does this mean we shouldn’t try? Not necessarily, but we should proceed with great caution.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.