Espionage Act Prosecution Updates:

The editorial page of the Washington Post is concerned about last week's Espionage Act ruling.

The United States has never had an Official Secrets Act -- a statute forbidding private citizens from disclosing and discussing information the government wants to keep quiet. Last week it got one. The change didn't come from Congress but from a federal judge in Virginia. At the urging of the Bush administration, Judge T.S. Ellis discovered it in an old and vague law that prohibits disclosure of information related to the national defense.
The editorial stresses that federal prosecutors have not accused the defendants of spying -- apparently the facts alleged could not support such a charge -- and are instead seeking convictions on the grounds the defendants knowingly obtained and recommunicated classified information.

In a related development, Judge Ellis issued a ruling last Friday that may make it more difficult for the federal government to obtain convictions in this case. Specifically, Judge Ellis denied the government's motion to offer evidence that a document described as "not classified" in the indictment was, in fact, classified. Allowing such evidence to be admitted would constructively amend the indictment and constitute per se error, Judge Ellis ruled. This is potentially significant because, according to the government's allegations, this is the only document that one of the defendants specifically requested from a government official. The Secrecy News blog has more here.

Jim Rhoads (mail):
Judge Ellis's opinion seemed to me to be a well written and unremarkable reading of the pertinent statutory language.

The WAPO article, on the other hand, appears to be a an attempted preemptive strike to protect reporters who receive and disseminate classified inforation in the course of their duties.

I don't think it will influence enough of the federal judges and justices who ultimately decide this issue.

Congress, of course, might try to amend the statute, but in these times, that is unlikely.
8.16.2006 5:11pm
Matt Janovic (mail) (www):
This is nothing-new, but now they've more-fully codified it. Pertinenet-question: do they have photos of the judge blowing-someone? All they're doing is undermining the rule-of-law (I know, not-much in America), really any respect for current laws. So? So, this is how they implement their social-control. No-laws, no-control. Rule in this country is predicated on the APPEARANCE of democracy and a modicum-of-fairness. Guess what happens when those masks are finally off? Yep, insurrection, and probably a splintering of the United States as a political-entity. This is probably the ONLY reason you see political-elites wanting to take Bush and GOP-majority in Congress and the Supreme Court down.

From the blog: "At the urging of the Bush administration, Judge T.S. Ellis discovered it in an old and vague law that prohibits disclosure of information related to the national defense." I'm thinking these are statutes from WWI, the Wilson administration. Oddly, Woodrow Wilson was viewed as a "progressive", YET, he spied-on various unions and anti-war and social-justice groups like the IWW. The first Red-scare was under Wilson, too, 800 people were deported--people like Emma Goldman. Woodrow Wilson was a scumbag, a Patrician President who didn't believe in democracy.

From the Washpo article:..."whistle-blowers who bring secrets to Congress could be imprisoned for it. So could newspaper reporters who reveal classified information." This is what they are hoping-for--people in the State Department and intelligence-communities, but most-of-all the Executive itself--a chilling-effect. No more Pentagon Papers, no more Media, Pennsylvania (illegal FBI break-in/surveil. documents anonymously-revealed), nada. But, I think this ruling will be struck-down.
8.16.2006 5:22pm
Evelyn Blaine (mail):
I happen to disagree with Judge Ellis's ruling, but I don't think it's entirely fair to compare it to the British Official Secrets Act. I'm not an expert, but as I understand it, one important feature of the OSA is that it makes revealing *any* classified information per se illegal, and gives no option to challenge the appropriateness of the classification. On the other hand, the relevant part of the Espionage Act, for all its flaws, is restricted to "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". Whether or not it's applied to ordinary citizens, the mere fact of official classification is not dispositive; a jury will have to be convinced of the legitimacy of the secrecy. This in itself is a major advantage over the OSA.
8.16.2006 6:17pm
Jim Rhoads (mail):

Do you disagree with Judge Ellis's ruling or with the language or policy of the statute itself?
8.16.2006 6:45pm
LTEC (mail) (www):
This editorial is awful. What exactly is the Post’s complaint about the ruling?

Is the complaint that the statute should not be enforced because it is old? This must be part of it, since they bother to tell us that a predecessor statute was passed during World War I, before the editorial writers were even born.

Or is this irrelevant, and the real problem is that the statute is “vague” and/or “murky in its scope”. In that case, they should give us at least one vague or murky piece of language from the statute. Does the statute ban “people in possession of national defense information from disclosing it to others”, or does it ban “anyone from giving sensitive information [itself not defined] to any other person”, or are we supposed to combine those two thoughts and conclude that the statute actually bans “anyone from giving sensitive national defense information to any other person”? Is the whole problem the vagueness of the phrase “sensitive information”? And does the statute actually ban the secretary of defense from briefing the president, or one soldier from passing on an order to another?

Or is the real problem that the statute violates the first amendment? Here is the evidence given for this in the editorial: “the First Amendment surely limits the government's authority to prosecute people for gathering and reporting information”. But the whole issue then becomes the exact nature of those limits. And surely the Post accepts that there are legal limits to the limits, or they would be complaining about all sorts of legal restrictions on them, for example restrictions on reporting libelous information and on reporting certain information relating to criminal trials. Surely it’s not an open and shut case which limits are consistent with the first amendment, or (an entirely different question) which limits are advisable. I, for one, think it makes more sense to prohibit revealing classified information that it does to prohibit libel or prohibit reporting non-classified information about criminal trials.

Or maybe we should ignore the actual law and just consider “American tradition”.

Or maybe the real problem is that an old law is being used in a new way. In fact, this is the only coherent point I could find in the editorial.

Of course, the last sentence makes it clear that the real problem is that the Post just doesn’t like the effect of this ruling, and they confuse this position with the issue of whether or not the ruling is a correct one, and so they are unable to argue either position intelligently. They want congress to “strike a better balance between security and free speech”. Instead of giving us a completely bogus discussion of a court case, they should have spent the editorial saying exactly (without vagueness or murkyness) what they think this balance should be, and why.
8.16.2006 8:22pm
dick thompson (mail):
I really fail to see why the WaPo has such a problem with the law. They certainly get the lw=aw wrong IMNSHO. I worked with the code word classified documents and intelligence back in the Cuba Missile Crisis days and Kennedy and Johnson. There was a definite chain of command you followed to question the classification which remained within secure bounds. This chain of command went up through the intelligence agencies and inspectors general of those agencies to the directors of the agencies to the executive branch of the government. From there it went to the Congressional oversight committees but still remained within the security bounds.

The problem these people are having is that the law is specifically designed to keep the information secure until a final decision is made on the classification. Anyone who has access to that information needs to meet 2 criteria. They must be cleared for that level of information and they must have a need to know that information. You can have the level but you still don't get the information unless you need to know it. To me this is merely common sense. If you don't have the clearance and you don't have the need to know, then you shut the person off when they try to give you that information. That to me is also just common sense.

What I find in this article and in the stuff on the J-school site and so many of the other sites who discuss this is that these people don't have any idea of how the process is suposed to work and also they are allowing their political beliefs to color their judgment. The J-school sites seem to think that this is almost a game where the journalists try to get the secret info out of the agencies and ut it out there. If they get the story they win - and the Pulitzer Prize shows that they do. Doesn't seem to matter that the laws are broken and the security of the country is at risk when they win. That seems to be totally beside the point.

From my remembering of the laws of the time and their application, the judge got it right. Personally I would love to see the journalists involved and the persons who gave them the info go to jail for this one. I don't think that we as a nation can afford to have this kind of lawlessness continue. Today I tell you about financial transactions and how we track them; tomorrow I tell you about the movement of troops and how they are equipped and what their mission is.
8.16.2006 9:00pm
Jim Rhoads (mail):

Bingo, you nailed it. It (the WAPO position) is "game theory" taken to the nth degree.

But this is not a game. This is (as we used to say in the service) "not a drill". This is the real thing. Just because a Republican Administration is in charge of the Executive Branch during war time does not make it any less a war.

As pointed out above, the guts of the statute involved here comes from the days of the Wilson Administration. As Democrat as it gets. In 1916, with Wilson's electon to a second term, the Republicans won one more seat than the Democrats in the House. The Democrats maintained tenous control with a coalition with independents (the last time that has happened).

And with that arrangement, the nation entered WWI. Serious steps were taken to go to war. Espionage was suspected everywhere. German Americans like me (the Muslims of the day) were looked upon with suspicion, and statutes like the one under discussion were passed.

As the Post writers argue, this statute was not used on the Press. Why? Because that Press would never dream of publishing state secrets on the front page. They knew better. And until the 1970's that was the norm.

That has changed, and changed circumstances necessitate changed prosecutorial practices to assure the nation's safety.

This statute is necessary and should be enforced. The press should report the news -- not state secrets.
8.16.2006 9:51pm
The complaint that the predecessor statute was passed a long time ago is really a hoot. So if a statute was passed last month, but the predecessor was 200 years old, then the statute from last month is ancient?

You could argue (and Gabriel Schoenfeld does) that the 1917 act was too vague to cover what the Chicago Tribune did in publishing that the Allies had broken the Japanese codes, and so Congress, with this in mind, amended the statute in 1950 with §798. Which isn't vague at all. It's now been 56 years since Congress passed §798. You don't get to continue getting the vapors about the 1917 act's vagueness 56 years after Congress fixed it.

cathy :-)
8.16.2006 10:46pm

old and vague law

I guess when the law is old and vague, it must be disregarded. As they might say in the biz, "that proves too much" - the Constitution itself is old and vague, therefore it must be disregarded, especially that first amendment stuff about freedom of the press. Afterall, who really knows what that means in our modern world.

Otherwise, it sounds to me that some somebodies in the DoJ really screwed the pooch on that indictment. Maybe they spent too much time in law school learning bluebook citation and other law review activities instead of reading for content and reality.
8.17.2006 1:14am
Obvious Truth (mail):
Why do you think the Bush DOJ is hiring from law reviews of elite law schools? There are plenty of smart kids in Ave Maria and other Catholic/religious schools.
8.17.2006 2:25am