Academic journal article William and Mary Law Review

National Security Information Disclosures and the Role of Intent

Academic journal article William and Mary Law Review

National Security Information Disclosures and the Role of Intent

Article excerpt

TABLE OF CONTENTS  INTRODUCTION I. THE CURRENT STATE OF THE CRIMINAL LAW    A. Treason    B. The Espionage Act       1. Sections 793 and 794          a. Section 793          b. Section 794       2. Using Culpability Requirements to Limit the Scope of          "Information Relating to National Defense"    C. Other Relevant Statutes       1. Specific Categories of Information       2. Espionage-Related Statutes    D. Lessons from Congress and the Courts II. THE FIRST AMENDMENT AND INTENT    A. The Court's National Security Cases       1. Government Outsiders and Intent       2. Government Insiders and Intent    B. The Role of Intent Generally III. OBJECTIONS TO IMPOSING AN INTENT STANDARD CONCLUSION 


In the public discourse, the perceived intent of those who disclose national security information without authorization plays an important role in whether they are labeled as heroes or traitors. (1) Should it matter whether Chelsea (formerly Bradley) Manning leaked government information to WikiLeaks knowing that our enemies might benefit from the information? Is it relevant that Edward Snowden believed--or that a reasonable person would believe--that the top-secret government surveillance programs he revealed were illegal, or that the public value in knowing about these programs outweighed any risk of harm to national security? This Article examines whether intent--and what kind of intent--should matter in defining crimes related to the disclosure of national security information and concludes that it should, both as a matter of public policy and as a matter of constitutional law.

Although strict liability for the unauthorized collection and dissemination of all defense-related information might be the safest way to protect our nation's security, (2) such an approach would be inconsistent with our basic commitment to an informed democracy. The difficulty is in balancing the competing interests at stake. Incorporating mens rea requirements is a potentially useful way to strike the appropriate balance. Indeed, mens rea requirements are used throughout criminal law to differentiate among actors based on their moral blameworthiness and already play a very important role in defining and limiting criminal liability in this area. The current statutory regime--as convoluted and confusing as it is--treats the transmission of national security information with the intent to aid the enemy or a foreign government much more severely than other types of unauthorized disclosures. (3) As the U.S. Supreme Court has explicitly recognized, "innocence of intention will defeat a charge even of treason." (4) Disclosures made with "bad" intent--for example, to aid one of our enemies or to harm the United States--are entitled to greater moral condemnation and punishment. (5)

It is less clear whether the First Amendment requires any consideration of intent when determining which disclosures of national security information can be punished. Surprisingly, the role of intent in the Court's First Amendment jurisprudence has received little scholarly attention. (6) Even less explored is the more specific question of the role of intent with respect to First Amendment protection for the disclosure and publication of national security information. (7) Although many scholars have suggested that intent should play a role in the badly needed revision of the Espionage Act and related statutes, the literature lacks a vigorous study of why intent should matter, what the relevant intent requirements should be, and whether any of these requirements are constitutionally required. (8) This Article focuses on these questions.

Part I surveys the current role of intent in the notoriously convoluted Espionage Act and related statutes. This overview of Congress's struggle to protect the freedom of speech while punishing spies and others who harm our national security interests is useful on several levels. These statutes as well as their legislative histories demonstrate that the idea of using intent standards to distinguish between speech that should be protected and speech deserving of punishment is hardly a new idea. …

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