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National security information disclosures and the role of intent.

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


INTRODUCTION

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. As with many other federal statutes, however, Congress's use of intent standards in the existing statutory framework is clumsy and vague. As a result, courts interpreting these laws disagree about what level of culpability is required. Furthermore, these statutes illustrate the common problem of using intent standards to draw distinctions among acts that may cause similar harms. (9) At the same time, however, Congress's persistentuse of intent requirements to determine which disclosures are criminalized and which ones are not is instructive, offering useful lines of inquiry regarding how mens rea requirements could be used in this context.

Part II examines the often controversial role of intent in the U.S. Supreme Court's First Amendment jurisprudence and concludes that even if Congress declines to incorporate intent into the statutory framework for national security information disclosures, such intent standards may be constitutionally required. Mens rea standards are an extraordinarily useful means of distinguishing between espionage, which can be said to serve no constructive purpose, and leaks, which often make meaningful contributions to public debate. In addition, intent standards can be used not just as a means of demarking protected speech and unprotected speech but also as way of determining the severity of the crime. Furthermore, culpability standards offer a particularly promising means of dealing with the problem of "dual use" speech, which is speech that can be either helpful or harmful. The unauthorized disclosures of national security information fall within this category because they can both make a meaningful contribution to the public debate and threaten our national security.

Part III addresses the likely objections to the use of intent standards to draw distinctions between protected and unprotected disclosures. Among other things, this portion of the Article explains that in determining a speaker's intent, courts are not required to accept a defendant's potentially self-serving explanations for his speech, but instead can consider a variety of contextual clues to determine the legitimacy of those assertions.

Before I begin, a few caveats are in order. This Article rests on a number of background assumptions that some readers might regard as controversial. To begin, this Article takes it as a given that the overclassification of national security information is rampant, and as a result the classification status of a document should not be absolutely determinative regarding the value of the information or the need for secrecy. As Judge Skelly Wright said in his dissent from the D.C. Circuit's decision to grant the government's request for a prior restraint in United States v. Washington Post Co., "To allow a government to suppress free speech simply through a system of bureaucratic classification would sell our heritage, far, far too cheaply." (10) Furthermore, this Article takes as a given that leaks of classified information are an essential part of our democracy. In some ways, the resulting "game of leaks" serves both the government, which uses leaks to control the flow of information for its own purposes, and the press, which may benefit financially and otherwise from its ability to expose and decipher national security secrets. In my prior work, (11) have explored the various problems with the classification system, the lack of effective whistleblower protections for national security employees, the symbiotic relationship between the press and the executive branch, and the role of leaks as an effective check on the political branches; I do not set out to prove them all here again.

Similarly, this Article does not address arguments that government insiders who reveal national security information are engaging in "conduct" and not "speech" (as the government has argued in litigation); that government employees have waived their First Amendment rights by signing contracts agreeing not to reveal classified information; or that government insiders have no First Amendment right to reveal information they obtained during the course of their employment. All of these arguments are important to address, but because I have addressed them elsewhere, (12) I will not repeat my analysis here.

Some readers may question the value of this project given that the law may very well play a small role in decisions about what information is kept secret and what information is disclosed and published. Although traditional journalists frequently claim that their publication decisions are based on a determination of the information's public value, as well as the potential harm that the disclosure of the information might cause, the law does not expressly acknowledge the value of the information to the public. (13) The government likewise has never prosecuted a news organization for disclosing national security information. (14) The decision not to prosecute may have little to do with the applicable standard the government would have to satisfy and more to do with an evaluation of other issues, like concerns about graymail (15) and public resistance to prosecutions.

Nevertheless, we must keep in mind the culture of secrecy and loyalty that is pervasive in the national security infrastructure in this country. Leakers face not only the risk that the First Amendment will not in fact protect their disclosures, even under the approach this Article suggests, but also a whole host of personal and professional incentives not to leak. Furthermore, recent revelations regarding the government's surveillance of national security reporters (16) and prosecutors' willingness to use subpoenas to compel reporters (like James Risen) to reveal their sources (17) indicate that some protection for the underlying leaks is essential. In addition, the dramatic increase in the number of leak prosecutions, the potential for the dissemination of leaked national security information by nontraditional organizations like WikiLeaks, and the growing chilling effect of the government's crackdown on leaks on the free flow of information to the American public, all render the topic of this Article crucially important. (18)

I. THE CURRENT STATE OF THE CRIMINAL LAW

For over a century Congress has struggled to balance the need for an informed public with legitimate national security demands for secrecy. The various statutes criminalizing the unauthorized dissemination and publication of national security information reflect this struggle. Reading the current statutes to determine the applicable culpability standards in the existing statutory framework is not an easy job. It does not help that judicial guidance is in short supply. Despite the recent rise in the number of leak prosecutions, the number of leak prosecutions overall remains rather small. (19) In addition, the government has never prosecuted a traditional news organization. (20) As a result, courts have had rather few opportunities to interpret the relevant statutes. Nevertheless, intent plays a significant role in the current statutory regime, and the legislative history makes clear that this was no accident. Congress believed intent standards could be a meaningful way to distinguish among different types of disclosures based on their blameworthiness. (21)

Prosecutors can--and have--used a wide variety of criminal statutes to prosecute leakers beyond those discussed in detail in this Part, and these statutes use various intent standards. This Article focuses on the statutes that were enacted specifically with the aim of criminalizing the unauthorized disclosure of national security information because these statutes are the ones in which Congress explicitly considered when such disclosures should be punished.

A. Treason

Treason is a specific intent crime. The Supreme Court has explicitly stated that "treason--the one crime deemed grave enough for definition in our Constitution itself--requires not only the duly witnessed overt act of aid and comfort to the enemy but also the mental element of disloyalty or adherence to the enemy." (22) Treason thus has two elements: aid and comfort to the enemy, (23) and adherence to the enemy.

The "aid and comfort" element does not require the government to prove that the attempt to assist the enemy was substantial, complete, effective, or successful. (24) In cases involving the transmission of information, U.S. courts have made clear that it is not necessary for the government to demonstrate that the enemy made use of the information, (25) or as in one case, that the information was even received. (26) The Court's treason cases do not expressly require one to act with the enemy's consent or have any sort of direct relationship with the enemy; although in all of the treason cases, the defendants did serve as agents of the enemy. (27) Requiring some sort of direct relationship, agreement, or arrangement with the enemy would seem essential to avoid a dramatic expansion of the Treason Clause. (28) Any number of actions can aid the enemy--from sabotaging a weapons plant to criticizing the United States--but unless the act is done at the behest or at least in cooperation with the enemy, calling the act "treason" seems incorrect. (29)

Although it is not clear that an actor's subjective intent to direct his actions to the enemy plays a role in determining whether he has provided aid and comfort, the Court has held that such intent is essential in determining whether the individual "adhered" to the enemy. For example, in Haupt v. United States, the Court affirmed the treason conviction of a German saboteur's father during World War II, but suggested that permitting the jury to consider whether the defendant had benign motives for extending aid to the enemy was appropriate. (30) The trial court in Haupt instructed the jury that the intent element was not met if the father provided assistance to his son "as an individual, as distinguished from assisting him in his purpose, if such existed, of aiding the German Reich, or of injuring the United States." (31) The Supreme Court explained that it was up to the jury to weigh the evidence regarding the father's motivations for assisting his son, which included the defendant's argument that he was just trying to assist his offspring. (32) The jury in Haupt ultimately found the father guilty. (33) The Court affirmed the conviction, reasoning that the jury could have reasonably determined that the father did have intent to betray the United States, given several statements he made indicating his "adherence to the German cause." (34) Haupt seems to indicate that juries are entitled to consider a broad range of factors when determining whether a defendant acted with the requisite intent to betray, including circumstantial evidence as well as the act itself, but the jury must ultimately conclude that the defendant acted with a specific intent to betray.

Although treason prosecutions are extremely rare and generally unnecessary in light of other, less stringent statutory provisions that can be used to prosecute the same behavior, the requirement that the government must demonstrate the defendant's specific intent to adhere to the enemy indicates that culpability requirements can play a useful role in determining the moral blameworthiness of those who disclosure national security information without authorization.

For disclosures to WikiLeaks, Corporal Chelsea (Bradley) Manning was prosecuted under Article 104 of the Uniform Code of Military Justice. (35) This law is similar to constitutional treason in many ways, including the availablility of the death penalty as a punishment. Indeed, courts frequently treat military treason as the rough equivalent of civil treason cases, even applying a two-witness rule that the relevant statute does not require. (36) The Military Court of Appeals has held that Article 104 is a general, and not specific, intent crime because it simply requires a defendant to "knowingly" communicate with the enemy. (37) Nevertheless, even this intent requirement can play an important limiting role. In the Manning prosecution, the government contended that this requirement was satisfied as long as Manning knew that the communications could reach the enemy, even if that was not Manning's primary intent. (38) Although the trial court rejected the argument that the government had to prove that Manning had specific intent to reach the enemy, (39) the court nevertheless entered a verdict in Manning's favor. (40) The reasons for the court's ruling remain unclear, (41) but it is possible that the court was concerned about the troubling constitutional questions the government's position raised. After all, under the government's approach, an actor is subject to an Article 104(a) prosecution--and the death penalty--whenever he has reason to believe that the enemy reads our publications.

B. The Espionage Act

The Espionage Act, codified as [section][section] 793-798 in Title 18 of the U.S. Code, comprises some of the most confusing and ambiguous federal criminal law on the books. (42) Despite its title, courts agree that the various provisions of the Espionage Act punish much more than traditional espionage. (43) Not only do some provisions apply to government insiders who disclose national security information to the press, but some also appear to leave open the possibility of prosecutions against the press itself, as well as any other downstream publishers (including ordinary citizens).

The United States does not have the equivalent of the United Kingdom's Official Secrets Act that broadly criminalizes all disclosures of classified information. (44) In reality, however, the current statutory framework gives the government vast authority to prosecute both government insiders and outsiders for the unauthorized retention or disclosure of classified information. (45)

Although calls to revise these statutes have persisted for decades, Congress has not reformed them, perhaps because "[t]he effort to clarify would have required firm answers to too many difficult questions." (46) Consequently, prosecutorial discretion and judicial interpretation have filled in the gaps. (47) Courts have struggled to interpret the scienter requirements for many of its provisions. As Harold Edgar and Benno Schmidt remarked in their landmark article examining the legislative history, "the proponents of culpability standards [in the Espionage Act] were more concerned with containing their inclusion than elucidating their meaning," (48) and as a result, the existing statutes contain "cumbersome and opaque descriptions of mental states." (49)

1. Sections 793 and 794

Sections 793 and 794 are the heart of the Espionage Act of 1917, passed shortly after the United States entered World War I. (50) Derived from the Defense of Secrets Act of 1911, much of the legislative history focuses on reactions to President Wilson's desire for legislation that would permit him to censor or punish the publication of national security information and to expand the government's power to punish the gathering and retention of national security information. (51) Concerns about the dissemination of important national security information to the enemy through the newspapers was squarely in the minds of those advocating for these broad powers. (52)

The legislative history indicates that Congress attempted to limit the government's ability to prosecute well-meaning individuals through mens rea standards. (53) Unfortunately, the culpability standard appearing most frequently in these statutes is that the defendant acted with the "intent" or "reason to believe" that the national security information "is to be used" or "could be used" to harm the United States or benefit a foreign nation. (54) It is unclear whether this standard requires the government to prove that the defendant acted with the purpose of harming the United States--a standard that would protect those with benign motives--or whether the "reason to believe" standard permits prosecutions based on recklessness or even negligence. (55)

a. Section 793

The first two provisions of [section] 793 are aimed at the collecting and copying of national defense information. (56) Congress's primary concern appears to have been the collection of information by agents of foreign governments, but the resulting statute is not, on its face, so limited. (57) Section 793(a) focuses on various categories of physical locations like dockyards, railroads, factories, research laboratories, and other places "connected with national defense" and at these locations, criminalizes the collection of "information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation." (58) Section 793(b) criminalizes the copying, taking, making, or obtaining of various documents, like blueprints, photographic negatives, and maps "of anything connected with the national defense" when it is done "for the purpose aforesaid, and with like intent or reason to believe." (59)

Despite objections that "information respecting the national defense" is a potentially limitless category, including "every part ... of the national economy and everything tending to disclose the national mind," (60) Congress rejected attempts to limit the scope of the statute to specifically named places or specific categories of information because of concerns that such an approach would not adequately protect sensitive information. (61) Instead, Congress added a scienter requirement, which limited the application of the statute to instances in which the defendant has the "intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of a foreign nation." (62)

By adding culpability requirements, Congress hoped to protect those who acted with the intent of engaging in public debate on national security issues. (63) Indeed, despite the plain language of the statute, some representatives believed that the law would apply only to those with "a conscious purpose to injure" the United States. (64) As Edgar and Schmidt noted, "The legislative history is replete with declarations that 'evil purpose' is required to violate these laws." (65) The congressional record contains little indication, however, of whether Congress meant by this "intent or reason to believe" requirement that the offender had to intend to harm the United States or benefit a foreign power, or whether it "is to be inferred from action when occurrence of the result is a virtual certainty." (66) Arguably, the culpability standard is mere negligence, or at most recklessness. (67)

It does not appear from the legislative history that Congress intended to cover all reckless and negligent behavior. (68) On the one hand, Congress was concerned about the government insider who might sell secrets to make money but claim indifference to how the information will be used. (69) The "reason to believe" standard, if interpreted objectively, successfully achieves this goal. On the other hand, however, this statute appears to cover also just about every act of newsgathering, including those made for or by the press. After all, anyone who collects national security information with the aim of disseminating it to the public has an objective "reason to believe" a foreign enemy could get that information. (70) It does not appear that Congress meant to treat these two categories of potential defendants the same. (71)

Another confusing aspect of these statutory provisions is the requirement that a defendant intend or have reason to believe that the information at issue "is to be used" to the advantage of a foreign country or to harm the United States. (72) This language suggests that an actor must have some awareness of how the information he has obtained will be put to use in order to be held criminally liable. Arguably, this language suggests that the actor must intend or have reason to believe that the primary use to which this information will be used is a harmful one, not merely that such an outcome is possible.

Subsections 793(d) and (e) apply most directly to the communication of information to and by the press. Subsection 793(d) provides that anyone in
   lawful[] ... possession of... any document, writing, code book,
   signal book, sketch, photograph, photographic negative, blueprint,
   plan, map, model, instrument, appliance, or note relating to the
   national defense, or information relating to the national defense
   which information the possessor has reason to believe could be used
   to the injury of the United States or to the advantage of any
   foreign nation, who willfully communicates, delivers, [or]
   transmits the same to those not entitled to receive it. (73)


Subsection 793(e) is virtually identical to [section] 793(d), but it applies to those who have "unauthorized possession" of the listed materials and information; (74) the plain language appears to permit the prosecution of the press or any other government outsider. Both [section] 793(d) and (e) apply whenever a defendant discloses national security materials or information to "any person not entitled to receive it." (75) The category of recipients is not defined in the statute, but the statute arguably includes members of the news media and applies whenever unauthorized disclosures are made (and even repeated) downstream from the original source. (76) Section 793 authorizes the imposition of fines and/or up to 10 years in prison. (77)

As with [section] 793(a) and (b), the scienter requirements of [section] 793(d) and (e) are unclear. Both sections provide that the defendant must have acted with "reason to believe [the information] could be used to the injury of the United States or to the advantage of any foreign nation." (78) Notably, these provisions do not require that a defendant act with the intent to harm the United States or to advantage a foreign nation. Instead, these subsections provide that it is sufficient for a defendant to have reason to believe that the information "could be used" for harmful purposes. In other words, in contrast to the culpability provisions in [section] 793(a) and (b), which require intent or reason to believe the information "is to be used" for bad purposes, [section] 793(d) and (e) apparently require the government to demonstrate merely that the actor was aware--or should have been aware--of the possibility that the audience could use the information for nefarious ends.

Whatever this culpability standard means, courts have generally agreed that it modifies only the phrase immediately preceding it: "information relating to the national defense." (79) Some courts have explained that the distinction between tangible and intangible information makes sense because "a defendant will more readily recognize a document relating to the national defense based on its content, markings or design than it would intangible or oral 'information' that may not share such attributes." (80) As a result, in cases involving the communication of the specific tangible items listed in the statute (documents, photographs, etc.), the government does not have to demonstrate that the defendant had any mens rea regarding the harmfulness of those items. (81) This explanation is problematic on a number of levels, not the least of which is that the line between "documents" and "information" is hardly a clear one. (82)

In cases involving the transmission of documents, the only mens rea requirement the government must demonstrate is that the defendant communicated, delivered, or transmitted the items "willfully." (83) The Supreme Court has had several opportunities to interpret "willfully" in other federal statutes and has noted that the word can have "many meanings." (84) At a minimum, the Court has held that the term "differentiates between deliberate and unwitting conduct, but in the criminal law, it also typically refers to a culpable state of mind." (85) Unhelpfully, the Court has said that "willfully" means that a defendant acted with "a bad purpose," (86) and that "[t]he jury must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful." (87) In the same breath, the Court has explained that "bad purpose" simply means that the defendant acted with knowledge that he was breaking the law. (88) Knowledge that one's conduct is unlawful, however, is not the same as having a bad motive. To make matters even more confusing, the Court has interpreted "willfully" more vigorously in cases in which the defendant has "engaged in apparently innocent conduct." (89) Determining what conduct is "apparently innocent" is hardly a straightforward inquiry.

Unfortunately, [section] 793 and its legislative history contain no clear indication of which meaning of "willfully" Congress intended. Edgar and Schmidt argue that their review of the legislative history indicates that Congress did not intend "willfully" to mean the same thing as the "intent or reason to believe" standard it frequently used, or any other "narrow conception of 'willfully' that looks to motivation." (90) Courts interpreting this mens rea requirement in the context of [section] 793 have held that the government does not have to demonstrate that the defendant acted with intent to harm the United States or give advantage to a foreign interest. (91)

Although the plain language of the statute easily includes the information-sharing activities of the press (the press certainly "communicates"), (92) some have argued that the absence of the word "publish" in [section] 793 indicates that Congress intended to exclude the press. (93) Given the complicated history of the Espionage Act and related statutes, it is doubtful that Congress's word choice is meaningful as a matter of statutory interpretation. (94) The relevant legislative history of these statutes indicates Congress did not intend for these laws to be used against the press, even if the disclosures caused harm to national security interests and the press was well aware of those risks when publishing. (95) The plain language of the relevant statutes, however, does not protect the press or its sources. (96) Courts have not had an opportunity to weigh in on this issue because the government has never brought a prosecution against a news organization for publishing national security information. (97)

b. Section 794

Section 794 of the Espionage Act, titled "Gathering or delivering defense information to aid foreign governments," is the section of the Act most directly and obviously aimed at traditional espionage activities. (98) Section 794(a) imposes criminal penalties on anyone who "communicates, delivers, or transmits" national security information (99) to any foreign government--friend or foe (100)--or "to any faction or party or military or naval force within a foreign country," provided that the person has the "intent or reason to believe that [the information] is to be used to the injury of the United States or aid a foreign nation." (101) Unlike [section] 793(d) and (e), the mens rea requirements appears at the outset of the subsection and applies in every case, not just those involving intangible disclosures of information. (102) Finally, the punishments [section] 794(a) authorizes are much more severe than those in [section] 793. A defendant convicted under [section] 794(a) faces up to life in prison or the death penalty in cases involving particularly dangerous categories of information." (103) The penalties this section authorize reveal the more serious nature of the actions prohibited. (104)

As with [section] 793, [section] 794(a)'s failure to use the word "publish"--despite its appearance in other provisions of the Espionage Act--might indicate that the subsection does not apply to the press. (105) It is not a stretch, however, to say that the press "communicates" when it publishes. (106) Furthermore, [section] 794(a) arguably contemplates the use of the press to communicate with foreign powers because it provides that the prohibited communication or transmission of the information can be made "either directly or indirectly." (107) As the government argued in its prosecution of Chelsea (Bradley) Manning, someone wishing to communicate with a foreign government could use the press (or other downstream publisher) as an intermediary to communicate the information indirectly to a foreign power. (108)

Section 794(b), which is applicable only "in time of war," covers communications to "the enemy" of specific military information as well as "any ... information relating to the public defense, which might be useful to the enemy." (109) Unlike [section] 794(a), [section] 794(b) does not require that an offender have "intent or reason to believe" that the disclosed national defense information will be "used to the injury of the United States or to the advantage of a foreign nation." (110) The only relevant intent is the defendant's intent to communicate with the enemy. There is no scienter requirement regarding the harm the disclosure might cause, and there is no requirement that the materials cause national security harm. Instead, the only mention of harm comes in the last catchall phrase indicating that the statute applies to "any other information relating to the public defense, which might be useful to the enemy." (111) The penalty provision of [section] 794(b) carries up to life in prison or the death penalty. (112)

Unlike [section] 794(a), [section] 794(b) specifically covers anyone who "publishes" military information, (113) and the use of this word indicates Congress meant for the law to apply to the press. (114) Although there are no cases interpreting this statute, prosecuting most news organizations would be almost impossible in most circumstances given the difficulties of proving purposeful intent to communicate with the enemy, rather than mere awareness that the enemy might read the publication. (115) However, Congress has been aware for over a century that it is possible for a news organization to have the specific intent to aid the enemy. (116) Indeed, the Trading with the Enemy Act of 1917, which was passed contemporaneously with the Espionage Act, required foreign language newspapers to submit translations before publication, demonstrating Congress's concern with treasonous newspapers. (117) Although society often believes that the Internet has given rise to problems never before contemplated, concern about news organizations acting in bad faith is not new.

2. Using Culpability Requirements to Limit the Scope of "Information Relating to National Defense"

Both [section] 793 and [section] 794 contain a catch-all provision extending their coverage to "information relating to the national defense." (118) The Espionage Act does not contain a definition of what falls within this category, but on its face, the scope is expansive. The Supreme Court has relied on the culpability requirements in these statutes to restrict the scope of that phrase, and in so doing, reject defense arguments that it is unconstitutionally vague and overbroad. (119) The Court's decision, however, has added another layer of confusion to an already confusing set of statutes.

In Gorin v. United States, the Court held that the term "national defense" contained in a predecessor provision was a "generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness." (120) To prosecute under this clause, the Court held that the government does not have to provide any proof of injury or even potential injury to the United States; it is sufficient that the information could be advantageous to a foreign country. (121) The Court rejected arguments that the language "information relating to national security" was unconstitutionally vague on the ground that the phrase was limited by a scienter requirement that the offender had "reason to believe that the information... is to be used to the injury of the United States, or to the advantage of any foreign nation." (122)

It is puzzling why the Court thought the mens rea requirement was the best way to place a meaningful limit on an otherwise vague and potentially all-encompassing phrase. (123) Certainly Congress had other options. For example, it could have listed certain categories of information, similar to what it has done in [section] 798 (communications intelligence information), (124) the Atomic Energy Act of 1954 (nuclear energy and weapons information), (125) or the Intelligence Identities Protection Act of 1982 (information revealing identities of covert agents). (126)

Furthermore, Gorin's explanation of the precise nature of this intent requirement was unclear. The Court stated:
   The obvious delimiting words in the statute are those requiring
   "intent or reason to believe that the information to be obtained is
   to be used to the injury of the United States, or to the advantage
   of any foreign nation." This requires those prosecuted to have
   acted in bad faith. The sanctions apply only when scienter is
   established. Where there is no occasion for secrecy, as with
   reports relating to national defense, published by authority of
   Congress or the military departments, there can, of course, in all
   likelihood be no reasonable intent to give an advantage to a
   foreign government. (127)


It is not clear whether Gorin establishes an objective or subjective culpability standard.

In particular, the Court used the phrase "bad faith" in a confusing manner. To some, bad faith suggests a subjective intent to harm the United States or to give an advantage to a foreign power. Indeed, some lower courts have embraced this reading of the same "intent or reason to believe" scienter requirement. For example, in United States v. Rosen, Judge Ellis held that the government would have to prove not only that the defendants knew that the national defense information at issue could harm the United States, but also that they had a "bad faith purpose to either harm the United States or to aid a foreign government." (128) In other words, Judge Ellis explained, even if the defendants knew the disclosure of the information could harm the United States or help its enemies, they could not be convicted under the statute if they disclosed the information for "some salutary motive" or "as an act of patriotism." (129) Instead, Judge Ellis held, the disclosure of the information must be objectively harmful to the United States, and the defendant must be subjectively intending to cause that harm. (130) In fact, the court specifically distinguished between unauthorized communications of national security documents, which did not contain the "intent or reason to know" limitation, and the unauthorized communication of national security information, which did contain that limitation. (131) The government could prosecute the former, Judge Ellis explained, even if the defendants acted with "some salutary motive." (132)

Some courts have expressed doubts about Judge Ellis's reading of the "intent or reason to believe" language. (133) The most fundamental objection is that a "bad faith" requirement does not appear in the plain language of the statute. As one district court held, "the text of the statute means what it says... 'the possessor ha[d] reason to believe [that the information] could be used to the injury of the United States or to the advantage of any foreign nation.'" (134) Furthermore, some courts have questioned whether an additional mens rea requirement is necessary in cases involving past or present intelligence officers who "had a recognized obligation not to divulge classified, national defense information to those not entitled to receive it." (135) In such cases, the courts have explained, an additional mens rea requirement should not be necessary to satisfy the due process concerns (136) that were arguably present in Rosen, which involved the prosecution of two government outsiders. This support draws support from legislative history, which indicates that the drafters did not believe an additional mens rea requirement was necessary because it applied to "persons presumably in closer relationship to the Government which they seek to betray." (137)

Another potential reading of Gorin is that the primary purpose of the scienter requirement is to make sure that innocent acts are not punished. In other words, even if the act objectively causes harm to national security, it is essential to determine whether the defendant himself knew of that potential harm. (138) As one court concluded when faced with a similar intent provision in a federal sabotage statute, the only intent required is the intent to interfere with a facility essential for national preparedness. (139) The defendant's patriotism, religious motivation, or other benign purpose for committing those acts is irrelevant. (140)

A close reading of Gorin suggests that the Court did not mean to embrace a subjective standard. After stating that a defendant has to act "in bad faith," the Court went on to discuss how "information relating to the national defense" has "a well understood connotation." (141) The Court concluded that the information the defendants communicated was the sort of information that would be objectively useful for a foreign country. (142) The Court also favorably cited one of its prior decisions holding that the jury decides "[w]hat interpretation ought to be placed upon the pamphlet, what would be the probable effect of distributing it in the mode adopted, and what were defendants' motives in doing this." (143) In that previous decision, however, the Court held the defendants' knowledge of the contents of the pamphlet "of itself furnished a ground for attributing to them an intent to bring about, and for finding that they attempted to bring about, any and all such consequences as reasonably might be anticipated from its distribution." (144) Indeed, Justices Holmes and Brandeis dissented in that case, arguing that, among other things, there was not "a particle of evidence that these statements were made with intent to interfere with the operation or success of the military and naval forces," and that "[s]o far as there is any evidence bearing on the matter of intent, it is directly to the contrary." (145) They pointed out that the only evidence of intent was the leaflet itself. (146) 147 Given that Gorin was decided in 1941, when the Court's First Amendment jurisprudence was still in infancy, it is not surprising that the majority of Justices appeared to embrace a standard consistent with the Court's Espionage Act decisions from the same time period.

Another puzzling aspect of Gorin is its assertion that "[w]here there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government." (147) It is unclear whether publicly available information can ever constitute national defense information covered under the Espionage Act, or whether the fact that information is publicly available is simply a factor to be taken into account when determining if the defendant had the requisite intent to aid a foreign government. The fairest reading of the quoted language from Gorin is the latter, but it is hardly clear this makes any sense. If the disclosure of the information at issue does not pose any risk of injury to the United States or give an advantage to a foreign nation, the defendant's intent does not seem relevant. In addition, the defendant's intent does not seem obviously connected to the secrecy, or lack thereof, of the national security information. (148)

Whether the required intent is the subjective intent to harm the United States or constructive harm based on the reasonable consequences of their speech, what harm is sufficient to constitute "injury to the United States" remains unclear. (149) The government has argued that any breaches of confidentiality harm the United States because the breaches send a message to our friends and allies alike that we cannot be trusted. The Court has sometimes accepted the legitimacy of this argument, particularly in the context of government insiders. (150) And to a certain extent, the extensive document dumps by leakers like Chelsea (Bradley) Manning might harm our national security interests because they can have a chilling effect on the free flow of information and communications among U.S. government officials who "can no longer assume that their off-record, secretive communications among themselves can remain confidential." (151) Another problem with proving harm is that it is impossible to know whether our friends or enemies already have access to the revealed information. (152)

But it may not even matter whether the disclosed information could harm the United States, as long as it might advantage a foreign power. The statute does not define "advantage." Any piece of information relating to the national defense could help its recipient in some way. As a result, the alternative grounds for criminal liability--that the information "harms" the United States--is arguably "surplusage because it is improbable for the United States to be injured except by conduct which also advantages some foreign nation." (153)

It is important to keep in mind that when Gorin was decided in 1941, the classification system for sensitive information did not exist. Later courts have noted that classification of information is probative, although not conclusive, evidence that the information relates to the national defense. (154) To be constitutional, lower courts have first required that the information at issue not be publicly available, (155) and the information, if disclosed, must be "potentially damaging to the United States or might be useful to an enemy of the United States." (156) Furthermore, lower courts have narrowly interpreted the Gorin exception for national security information that is not secret. For example, the Fourth Circuit has held that the fact that some of the information at issue is publicly available is irrelevant if that information was not made publicly available by the government in an official document. (157)
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Title Annotation:Introduction through I. The Current State of the Criminal Law B. The Espionage Act 1. Section 793 and 794, p. 1381-1411
Author:Papandrea, Mary-Rose
Publication:William and Mary Law Review
Date:Mar 1, 2015
Words:7289
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