PROSECUTING REPORTERS AND SOURCES UNDER THE ESPIONAGE ACT
Schoenfeld decries "retrospective symmetry," in which a vision of the past is imposed upon the present. He almost sounds like a liberal when he says: "It will not do to...hold up the handiwork of the Founding Fathers as a template for our contemporary circumstances....We enter this historical terrain not out of some originalist impulse to embrace the standards of the eighteenth century and impose them on our own institutions." Yet he does not hesitate to graft modern words like "leaking" and "terrorism" onto his revisionist interpretation of history.
Perhaps Schoenfeld should move to England, where they have an Official Secrets Act, which punishes both the source and the publisher of secret government materials. Instead, Schoenfeld advocates bypassing Congress (anyone detect a trend here?) to create what is tantamount to a state secrets act by urging prosecution under the Espionage Act, thus doing an end-run around the democratic legislative process he insists he believes in. In a key chapter, Schoenfeld outlines a "hypothetical prosecution" of The New York Times. Although Schoenfeld takes credit for this idea, a number of scholars and judges have for years argued about the applicability of the Espionage Act's sweeping 793 provision to the press. I will leave to others more expert in the area the arguments about why the First Amendment should immunize reporters conducting good-faith investigations for stories of public concern, even if they could technically be held liable under a broad inchoate theory of liability under the Espionage Act.
What is more disturbing is Schoenfeld's application of 793(e)'s vast language to whistleblowers. In the 93 years of its existence, there have been only three prosecutions of "leakers" under the Espionage Act, which would seemingly counsel hesitation in using it to prosecute them as spies: the unsuccessful prosecution of Daniel Ellsberg and Anthony Russo in 1971 for disclosing the Pentagon Papers; the 1985 conviction of Samuel Morison -- later pardoned by President Bill Clinton -- for leaking U.S. satellite photos to a military-related magazine focusing on defense planning, weapons technology and world security threats; and the aborted 2005 indictment of two employees of the American-Israel Public Affairs Committee on charges of unauthorized receipt and transmittal of classified information -- the first time the Espionage Act has been used against private citizens for doing nothing more than what other lobbyists and journalists do all the time. None of these men were spies. None betrayed the United States or intended to harm it. They neither gave nor sold information to foreign governments.
Overly broad, ambiguous laws have an irresistible quality, and now -- ignoring the president's own edict to "look forward, not backward" -- the Obama administration, through its marching orders to Attorney General Eric Holder Jr., has literally taken a page from Schoenfeld's book by forcing a trial for espionage on a person who is not a spy: Thomas Drake. Unfortunately, the Espionage Act does not distinguish between spying and "leaking." A hurdle in the Drake prosecution will be demonstrating to a jury that he had the requisite state of mind that is a crucial element of the crime. Specifically, did he have "reason to believe" that his disclosure -- if he made one at all -- "could be used to the injury of the United States"? There is more than a reasonable doubt that Drake had any such state of mind. When Drake went to a reporter, it was only after his internal complaints fell on the deaf ears of his bosses, the NSA's general counsel and inspector general, the Defense Department's inspector general and the House and Senate intelligence committees. His disclosures were a matter of public concern and were clearly of public significance: The NSA went on a "billion dollar boondoggle" and ultimately chose an extremely intrusive surveillance program over an even better program that protected privacy.
In a logical absurdity, if you subscribe to Schoenfeld's argument, sources who disclose information to reporters would be criminally liable, reporters who then write about it for newspapers would be liable, the newspapers that publish the information would be liable, and by extension, any readers would be liable, especially if they e-mail the article, discuss it or disseminate it any further. The old adage goes, "it's not the crime, but the cover-up" that will ultimately get bad actors. Under this calculus, at least malfeasors are held accountable at some point. But Schoenfeld's version appears to be "it's not the crime -- ever -- but the exposure of it" that will be penalized. I submit that when secrecy is used to cloak illegal conduct, that is what should be punished.
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