Private: Trifurcating the Espionage Act: A Sensible Solution for the 112th Congress?

By Stephen I. Vladeck, a professor at American University Washington College of Law. Vladeck testified at yesterday's House Judiciary Committee Hearing (pictured) on the legal and constitutional issues raised by WikiLeaks. Video of the full hearing is available here.

One of the most refreshing things about yesterday's House Judiciary Committee hearing on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks," at which I was one of the seven witnesses, was the focus of the conversation. Rather than the WikiLeaks bashfest I initially feared that the hearing might turn into, an overwhelming majority of the conversation (and of the Members' questions) focused on prospective reforms to federal espionage, whistleblower, and classification laws, and not just for the "next" WikiLeaks situation. Instead, folks seemed to take seriously the myriad ways in which the vagueness and ambiguity of the current Espionage Act ultimately redounds to the benefit of no one (a point that Abbe Lowell, Ken Wainstein, and I each elaborated upon in our testimony).

If one theme came through in particular, it was the need for federal law to formally distinguish between three distinct classes of cases: (1) traditional espionage, where a spy steals national security secrets in order to benefit a foreign power; (2) unauthorized leaking by government employees; and (3) the retention and retransmission of classified information by private citizens with no intent to harm national security or benefit a foreign power. With regard to the first category, I think most were in agreement that, although the key is a strong and precise specific intent requirement, such a requirement would go a long way toward both obviating any First Amendment concerns and limiting the statute to that conduct that really is classical espionage, with appropriately harsh corresponding penalties.

An anti-leaking statute is a bit more difficult to craft as a policy matter, but not as a constitutional one. Thanks both to non-disclosure agreements and to the Supreme Court's 2006 decision in Garcetti v. Ceballos, Congress would be on fairly solid footing in punishing government employees for willful disclosures of classified information to individuals not legally entitled to receive it. I've written elsewhere about some of the problems with Garcetti's approach to government employee speech, but so long as it's the law of the land, the First Amendment imposes far less of a constraint upon the regulation of government employee speech than it does speech by private citizens. To be sure, a difficult question arises as to whether the anti-leaking statute should also apply to government contractors, but my understanding of the case law is that, for better or worse, Garcetti applies to contractors, too. Instead, perhaps the thorniest issue with a hypothetical anti-leaking statute is how to deal with "authorized" leaks, including a defense that the government official was instructed to disclose the classified information at issue by a superior. Regardless, it seems clear that any anti-leaking statute should also accompany meaningful reforms to federal whistleblower laws, so that government employees with legitimate gripes have some means of obtaining redress.

I've saved the trickiest statute for last. In the 93-year history of the Espionage Act, it's only been used once to prosecute a private citizen for the retention or retransmission of classified information that was unlawfully disclosed by someone else-the so-called AIPAC case in the Eastern District of Virginia. And that case collapsed because, in response to First Amendment concerns, Judge Ellis imposed a higher burden on the government, requiring proof not just of the defendants' willfulness, but also of their bad faith. So the central question becomes when, if ever, should bloggers, reporters, or other private citizens be liable in this context?

I don't have a definite answer, at least in part because I think that this is a monumentally difficult question of law, policy, and politics. But the Q-and-A at yesterday's hearing may have been quite instructive in making some progress. For starters, the statute should focus on the re-transmission, rather than the mere retention, of classified information - and should specify either that it does or does not encompass acts of publication. Second, the statute should require more than just willfulness on the part of the defendant; it should require a specific intent to cause harm to the national security of the United States, or, at the very least, recklessness on the defendant's part. Third, the statute should require the government to prove that any disclosure by the defendant was not harmless. Fourth, the statute should provide the defendant with an improper classification defense.

To be sure, such a statute would still be extremely controversial. It even might, in some applications, be unconstitutional. But it would also represent a dramatic improvement over the status quo, in which no one can be sure what (and who) the Espionage Act does and doesn't cover. Indeed, I dare say that courts would have a far easier time subjecting such a trifurcated (and modern) statutory regime to constitutional scrutiny than they would the sweeping and vague 93-year-old language of the Espionage Act.

I should confess that I don't typically have a lot of faith in Congress's ability to write nuanced and careful legislation in areas that implicate national security and civil liberties. But if yesterday's hearing is any indication (it might not be), this case may prove to be an exception. Ultimately, whatever one thinks of WikiLeaks or Julian Assange, this whole episode might actually have a positive effect on federal law if it results in anything resembling the trifurcation described above.