By John Thorlin, NSJ Staff Editor –
In Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes (in the Spring 2009 issue of the American Journal of Criminal Law) Professor William E. Lee of the University of Georgia examines the legality of soliciting or possessing classified information. The issue became a controversial one in the wake of the American Israel Public Affairs Committee (AIPAC) spy scandal in 2005. AIPAC lobbyists were charged with violating the Espionage Act by conspiring with a Defense Department official to pass classified information to reporters and Israeli government officials. In May 2009, the government moved to dismiss the charges against the AIPAC lobbyists. The New York Times reported at the time that government policy makers were “clearly uncomfortable” with the prospect of senior officials testifying under oath about the frequent use of leaks as a political communication technique. Of course, journalists were also greatly relieved by the dismissal of those charges, because the incentives of soliciting leaks of classified information from administration officials would change dramatically if reporters could go to jail for performing their customary role as conduits to the public.
Current First Amendment doctrine suggests that reporters are allowed to passively receive newsworthy information even if it is illegally obtained by the source. As Professor Lee points out, that interpretation of freedom of speech ignores important gray areas of inchoate crime. “Is it illegal for a reporter to encourage the leaking of classified information by promising a government official anonymity? Is such an agreement a conspiracy?”
The silence of American jurisprudence on these questions seems somewhat mysterious given the decades of controversy regarding leaks in Washington. Congress is constitutionally able to pass a law on this matter (thanks to United States v. Williams, 553 U.S. 285 (2008)), but it has so far chosen not to. Professor Lee hypothesizes that Congress has not done so to this point because there is an unspoken political consensus that leaks are an important part of the democratic process.
Prosecutorial discretion plays a small role in preventing that consensus from getting out of hand, explaining why the AIPAC lobbyists (essentially working for the benefit of a foreign government) were initially prosecuted, while journalists like Bob Woodward are not charged for transmitting classified information. However, even the AIPAC charges were dropped by the Justice Department, raising serious questions about when the government will prosecute those on the receiving end of classified information leaks.
The political effects of the substantive information transmitted through leaks often overshadow the damage that routine disclosure of such information does to national security. Current global contingency operations against al-Qaeda, the Taliban, and affiliated forces do not seem to present the same kind of aggressive, unified foreign intelligence threat as was faced during the Cold War, and so there is a practical argument that the benefit of disclosure outweighs the costs to national security. However, it seems inevitable that we will only realize that the balancing test has shifted once a particularly salacious leak has taken place. Congress should remain conscious of the tradeoff and act accordingly.