Private Citizens Can be Prosecuted for Revealing State Secrets

Jonathan Adler passes on word that,

The federal government may prosecute private citizens who illegally receive and retransmit classified information, held federal district court Judge T.S. Ellis III yesterday [Aug. 9] 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.

There is a major qualifier: “Any violation of the statute must be both knowing and willful, Judge Ellis ruled, narrowing the implications of the decision.”

The ruling is based on three challenges raised by the defendants:

First, they argue that the statute, as-applied to them, is unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment. Second, they argue that the statute, as-applied to them, abridges their First Amendment right to free speech and their First Amendment right to petition the government. Third, defendants assert the First Amendment rights of others by attacking the statute as facially overbroad.

The “vagueness” and “overbroadness” are incredibly arcane and of little interest to most non-lawyers. The other First Amendment arguments, though, are worth exploring. Judge Ellis persuasively rebuts these claims through both logic and citation of precedent. Noting that governmental limitations of freedom of speech and the press must meet strict balancing tests, he observes that,

But importantly, the defendants here are not accused merely of disclosing government secrets, they are accused of disclosing NDI [National Defense Information -ed.], i.e., government secrets the disclosure of which could threaten the security of the nation. And, however vital an informed public may be, it is well established that disclosure of certain information may be restricted in service of the nation’s security, for “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)). And, as the Supreme Court has repeatedly noted, one aspect of the government’s paramount interest in protecting the nation’s security is the government’s “compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service.” Snepp, 444 U.S. at 509 n.3. Thus, the right to free speech and 45 the value of an informed citizenry is not absolute and must yield to the government’s legitimate efforts to ensure “the environment of physical security which a functioning democracy requires.” Morison, 844 F.2d at 1082. This point is best expressed in the Supreme Court’s pithy phrase that “while the Constitution protects against the invasion of individual rights, it is not a suicide pact.” Aptheker, 378 U.S. at 509 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963)). 46

This is something about which most agree in principle. Application, however, is enormously difficult. Where does one draw that line?

This case is especially difficult in that the defendants do not have security clearances.

The defendants argue that unlike Morison, Marchetti or Snepp, they did not agree to restrain their speech as part of their employment, and accordingly their First Amendment interests are more robust. […] In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure. This position cannot be sustained. Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, 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.

There is also a long explication of the various concurring opinions in the Pentagon Papers case (NYT v. US) making the argument that even the prohibition against prior restraint has its limits.

Finally, Ellis points out that,

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. Indeed, the basic terms and structure of this statute have remained largely unchanged since the administration of William Howard Taft. The intervening years have witnessed dramatic changes in the position of the United States in world affairs and the nature of threats to our national security. The increasing importance of the United States in world affairs has caused a significant increase in the size and complexity of the United States’ military and foreign policy establishments, and in the importance of our nation’s foreign policy decision making. Finally, in the nearly one hundred years since the passage of the Defense Secrets Act mankind has made great technological advances affecting not only the nature and potential devastation of modern warfare, but also the very nature of information and communication. These changes should suggest to even the most casual observer that 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.

Agreed. Ellis is right, however, in saying such judgments are the province of the elected representatives of the people, not the judiciary.



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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Anderson says:

    Wasn’t this under the Espionage Act, one of our WW1 fits of excitability? This issue came up re: the Plame case, and it was being argued then that the Espionage Act just shouldn’t be read so broadly … one reason perhaps that Fitzgerald didn’t indict on it.

    Mike Froomkin has some thoughts on our “Official Secrets Act.”

  2. Anderson,

    Given that we get this ruling thanks to a federal prosecutor pursuing the case, I find it hard to follow the rationale that Fitzgerald didn’t indict based on thinking that it wouldn’t hold up. If Fitzgerald felt he had a statute which on its face would allow indictment but didn’t think that it would hold up in court, don’t you think he might mention it, at least as a theory, in his findings?

  3. Anderson says:

    If Fitzgerald felt he had a statute which on its face would allow indictment but didn’t think that it would hold up in court, don’t you think he might mention it, at least as a theory, in his findings?

    Fitzgerald was remarkably narrow in those findings, and it’s pretty evident that he is close-mouthed compared to his illustrious predecessor, Ken Starr.

    I don’t think it’s ever proper for a federal prosecutor & officer of the court to say “we only let his Espionage Act prosecution slip away out of kindness, I suppose.” You either indict, or you don’t. You don’t put it out in the public record that you coulda indicted.

  4. Zelsdorf Ragshaft III says:

    Anderson, did you miss something? There was nothing to indict on in the Plame case. End of story. What you think does not matter in the area of legality. Accept it and find another goose to chase.

  5. John Burgess says:

    Enough of the canard of “this is a 1917 law”.

    As the judge discusses, yes, the law originated then, but has been updated at least as recently as the 1950s. It has also undergone court challenges since then, including Franklin in the late 80s.

    The law circumscribes the disclosure and distribution of National Defense Information which either a) harms the US or b) benefits another country. (That’s an or, not an and.) Franklin’s passing on pictures of a Soviet drydock to Janes Publications met the criteria. A jury will decide if this current case does. The judge only ruled on the constitutionality of the indictment.