SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 98
October 19, 2005

THE "INCOMPREHENSIBLE" ESPIONAGE ACT OF 1917

In its efforts to punish unauthorized disclosures of classified information to the media, the US Government is turning to the Espionage Act of 1917 (18 U.S.C. 793) which, among other things, prohibits "communication of national defense information to persons not entitled to receive it."

The Espionage Act was invoked in the recent indictment of two former employees of the American Israel Public Affairs Committee, who did not work for the government and did not hold security clearances, yet who are charged with mishandling classified information, including disclosures to the press.

The Act may also be employed by the special prosecutor investigating the unauthorized disclosure of the identity of CIA officer Valerie Plame, according to news reports.

But using the Espionage Act to prosecute leaks to the press is an extraordinary step with potentially profound ramifications.

In fact, the precise meaning of the Act is uncertain and experts argue that it cannot mean what it says.

The Espionage Act is "in many respects incomprehensible," wrote Harold Edgar and Benno C. Schmidt, Jr. in a definitive study three decades ago ("The Espionage Statutes and Publication of Defense Information," Columbia Law Review, May 1973, vol. 73, pp. 929-1087).

As written, the espionage statutes are "so sweeping as to be absurd," wrote Edgar and Schmidt.

"If these statutes mean what they seem to say and are constitutional, public speech in this country since World War II has been rife with criminality," they wrote.

"The source who leaks defense information to the press commits an offense; the reporter who holds onto defense material commits an offense; and the retired official who uses defense material in his memoirs commits an offense."

Among many other textual difficulties in the Act, the language governing improper disclosure by "authorized" persons such as government employees (section 793d) is the same as the language governing improper disclosure by "unauthorized" persons (section 793e).

Therefore, it appears that if government officials are liable for unauthorized communications of defense information under the Act, then reporters and other members of the public should be as well-- which would be plainly unconstitutional. Conversely, if reporters cannot be held liable under the Act for communicating defense information to the public, as they do all the time, neither can government officials.

Because of the Espionage Act's ambiguity, "We have lived since World War I in a state of benign indeterminacy about the rules of law governing defense secrets," Edgar and Schmidt wrote.

But today, by turning to the Espionage Act to punish disclosures to the press, even disclosures by non-government employees who do not hold a clearance (as in the AIPAC case), the government seems intent on bringing this state of benign indeterminacy to an end.

One major development that occurred after the publication of the Edgar/Schmidt law review article in 1973 was the use of the Espionage Act in the successful prosecution of Samuel L. Morison in 1985 for providing classified satellite images to Jane's Defence Weekly.

But this was a unique instance.

"The selective action against Mr. Morison appears capricious at best," wrote the late Senator Daniel P. Moynihan in a 1998 letter to President Bill Clinton, supporting a pardon for Morison.

Senator Moynihan noted (following Edgar and Schmidt) that when the Espionage Act was introduced in 1917 it included a provision sought by President Wilson authorizing government censorship of the press, but that Congress rejected the provision, indicating that the legislators' intent did not extend to regulation of the press.

"I would hope that in your review of Mr. Morison's application for a pardon you reflect not simply on the relevant law, but the erratic application of that law and the anomaly of this singular conviction in eighty-one years," Senator Moynihan wrote. See:

President Clinton pardoned Samuel L. Morison on January 20, 2001.

REPORTERS COMMITTEE FILES MOTION ON THE AIPAC CASE

The Reporters Committee for Freedom of the Press has asked a federal court for permission to file a friend of the court brief in the pending prosecution of two former employees of the American Israel Public Affairs Committee (US v. Franklin, et al) to explain the threat the case could pose to a free press.

Pointing out the strange fact that non-government employees are being prosecuted for mishandling classified information, the Reporters Committee argued that the AIPAC case "could affect the very nature of how journalism can be practiced."

"The defendant private citizens have been charged for conspiring to 'communicate' national defense information 'to any persons not entitled to receive it.' 18 U.S.C. . 793(d). Overly broad, this language applies to any private party who speaks about national defense information regardless of their intent or whom they speak to."

"These charges potentially eviscerate the primary function of journalism to gather and publicize information of public concern particularly where the most valuable information to the public is information that other people, such as the government, want to conceal," the Reporters Committee motion argued.

See "Reporters Committee warns court of espionage law's potential harm to journalists," October 13:

JASON ON NIF IGNITION

The JASON defense advisory group has prepared a report on the "prospects for achieving inertial confinement fusion (ICF) ignition at the National Ignition Facility (NIF) by 2010."

"The scientific and technical challenges in such a complex activity suggest that success in the early attempts at ignition in 2010, while possible, is unlikely," the authors concluded.

See "NIF Ignition," June 29, 2005:

DOE ORDER ON NUCLEAR WEAPONS SURETY

In a new Order, the Department of Energy has reestablished the Nuclear Explosive and Weapons Surety (NEWS) program, the prime objective of which is "to prevent accidents and inadvertent or unauthorized use of U.S. nuclear explosives (including nuclear weapons)."

See DOE Order O 452.1C, "Nuclear Explosive and Weapon Surety Program," approved September 20, 2005:

THE PRESIDENT OF INDIA ON FAS AND OPEN SOURCE RISKS

The President of India, Dr. A.P.J. Abdul Kalam, noted in a speech to Indian police officers last week that the world wide web offers new tools and opportunities for law enforcement and counterterrorism, but that it also presents risks.

He singled out the Federation of American Scientists web site as a source of potentially problematic high resolution satellite imagery.

"Most of you may or may not be aware that the high resolutions pictures are freely available on the internet provided by many sites including www.fas.org and Google earth," Dr. Kalam said.

In fact, however, the FAS collection of satellite imagery is highly selective, largely historical and altogether quite limited. For better or worse, we are simply not in the same business as Google Earth.

See the discussion of "open source intelligence" in President Abdul Kalam's October 15 speech at the Sardar Vallabhbhai Patel National Police Academy in Hyderabad here:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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