The federal government may prosecute private citizens who illegally receive and retransmit classified information, held federal district court Judge T.S. Ellis III yesterday in United States v. Rosen. Judge Ellis denied a motion to dismiss filed by Steven Rosen and Keith Weissman, two former employees of the American Israel Public Affairs Committee (AIPAC), who are being prosecuted under the Espionage Act for obtaining classified information and communicating it to third parties, including members of the media. According to Judge Ellis:
both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.
Any violation of the statute must be both knowing and willful, Judge Ellis ruled, narrowing the implications of the decision.
the government must . . . prove that the person alleged to have violated these provisions knew the nature of the
information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless. . . . [And] with respect only to intangible information, the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation, which the Supreme Court has interpreted as a requirement of bad faith.
While allowing the government’s prosecution to proceed, Judge Ellis made clear he was not passing on the wisdom of the government’s proseuction, just its contitutionality.
The conclusion that the statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. . . . the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that
they reflect both these changes, and contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations.
Steven Aftergood on the Secrecy News blog notes that Judge Ellis’ decision could have distubing implications for press freedoms.
the classified 2004 report of Maj. Gen. Antonio Taguba on prisoner abuse at Abu Ghraib prison clearly fit the court’s description of national defense information that is closely held by the government. Moreover, its unauthorized disclosure was likely to, and did in fact, harm the United States. And yet that disclosure also served an important national purpose in prompting a public debate over U.S. policy on prisoner detention and interrogation.
But under Judge Ellis’ new interpretation, those reporters and others who communicated this information to the public could apparently be prosecuted under the Espionage Act.
Under Judge Ellis’ interpretation, it also seems the federal government could prosecute reporters at the Washington Post and New York Times for their reports on secret prisons, NSA surveillance, and other classified counter-terrror activities.