Constitutional Law - Due Process and Free Speech - District Court Holds That Recipients of Government Leaks Who Disclose Information "Related to the National Defense" May Be Prosecuted under the Espionage Act

Harvard Law Review, January 2007 | Go to article overview

Constitutional Law - Due Process and Free Speech - District Court Holds That Recipients of Government Leaks Who Disclose Information "Related to the National Defense" May Be Prosecuted under the Espionage Act


CONSTITUTIONAL LAW -- DUE PROCESS AND FREE SPEECH -- DISTRICT COURT HOLDS THAT RECIPIENTS OF GOVERNMENT LEAKS WHO DISCLOSE INFORMATION "RELATED TO THE NATIONAL DEFENSE" MAY BE PROSECUTED UNDER THE ESPIONAGE ACT. -- United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006).

Although there is little dispute that "the societal value of speech must, on occasion, be subordinated to other values and considerations," (1) much uncertainty surrounds the government's right to criminally prosecute lobbyists, members of the press, and others who traffic in information deemed harmful to national security. (2) This uncertainty stems largely from the "incomprehensible" (3) nature of the espionage statutes, (4) in particular 18 U.S.C. [section] 793(e). (5) While no member of the press has yet been prosecuted under these statutes, recently, in United States v. Rosen, (6) the United States District Court for the Eastern District of Virginia held that recipients of government leaks who disclose information "related to the national defense" to those "not entitled to receive it" may be prosecuted under the Espionage Act. By misconstruing precedent, the Rosen court reached the wrong result. Section 793(e), as applied to situations in which First Amendment rights are at stake, is unconstitutionally vague. Although the government undoubtedly has an interest in ensuring national security--an interest that might sometimes entail prosecuting transmitters and recipients of information whose behavior implicates the First Amendment--the Espionage Act, as written, is an unconstitutional vehicle through which to pursue such an interest.

Steven Rosen and Keith Weissman were employed by the American Israel Public Affairs Committee (AIPAC), (7) a lobbying group that focuses on foreign policy issues of interest to Israel. (8) Between 1999 and 2004, Rosen and Weissman obtained information from various government Officials (9) and transmitted this information to members of the media, officials of foreign governments, and constituents of AIPAC. (10) The government charged Rosen and Weissman with conspiring to transmit information relating to the national defense to those not entitled to receive it, in violation of 18 U.S.C. [section][section] 793(d) and (e). (11) Rosen and Weissman filed a pretrial motion to dismiss the charges. (12)

The United States District Court for the Eastern District of Virginia, in a memorandum opinion written by Judge Ellis, denied the defendants' motion to dismiss. After conducting a brief review of the history of the espionage statutes and their application, (13) and rejecting the defendants' statutory argument, (14) Judge Ellis examined the defendants' constitutional arguments. The defendants first argued that the government's application of [section][section] 793(d) and (e) was unconstitutionally vague, in violation of the Fifth Amendment's Due Process Clause, in two respects: in failing to define adequately both what kind of information is encompassed by the phrase "information relating to the national defense," and which individuals are "not entitled to receive" that information. (15) Responding to the first objection, Judge Ellis concluded that while the phrase "information relating to the national defense" seems overbroad, judicial precedent has limited the phrase by requiring the government to prove both that the information is "closely held by the government" and that the information is the type "that could harm the United States" if disclosed. (16) So limited, the phrase passes constitutional muster. (17) As for the second objection, the court reasoned that the phrase "entitled to receive" incorporates the Executive Order establishing a uniform classification system, (18) thus providing the necessary constitutional clarity. (19)

Judge Ellis also rejected the defendants' argument that the oral nature of the information allegedly exchanged rendered the statute, as applied to the defendants, unconstitutionally vague.

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Constitutional Law - Due Process and Free Speech - District Court Holds That Recipients of Government Leaks Who Disclose Information "Related to the National Defense" May Be Prosecuted under the Espionage Act
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