US Court Finds We Have an Official Secrets Act

Secrecy News has the scoop at Recipients of “Leaks” May Be Prosecuted, Court Rules.

Basically — for the first time and I’d argue contrary to the First Amendment and legislative intent — the a US court has held in US v. Rosen (the AIPAC case), that private citizens who have no contractual obligations to keep government secrets, and no security clearances, can nonetheless be prosecuted under the Espionage Act for sharing classified information they receive.

Judge T.S. Ellis, III (ED Va – where else?) argues in his opinion that this ruling is but a narrow one since it requires that the private citizen know the information is classified and that release would be potentially detrimental to national security, intend to share it, and do so knowing that this is illegal.

Seems to me that Nixon would have used this argument to prosecute newspapers for publishing the Pentagon papers; perhaps, given what we know now, they might have won on the merits, but surely the fear of jail (for Espionage) would have acted as a substantial deterrent to that and other important publications.

Indeed, it’s not hard to see this ruling as pushing us well down the slippery slope to a world in which in practice only Official Leaks, those giving the pro-administration side of a story will be published.

Don’t look for the 4th Circuit, the most statist in the nation, to overturn this. But I’ll bet even Scalia will vote to overturn it, as will the Supreme Court with at least six judges in the majority.

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2 Responses to US Court Finds We Have an Official Secrets Act

  1. Phill says:

    I don’t see a first ammendment issue here at all.

    The AIPAC operatives were clearly engaged in espionage on behalf of a foreign power. They never made any attempt to publish the information, instead they handed it over to the foreign government they were paid lobbyists for.

    I agree that the freedom of speech argument would be relevant in cases where the information was handed over either to a journalist or to Congress and especialy so if there was a clear public interest in doing so such as bringing a crime to light.

    While first ammendment issues generally trump everything else and the court requires the statute to be very narrowly tailored etc. I don’t think you can expect the court to ignore the fact that the disclosures had real national security implications.

    If the information had been handed over to the soviet embassy via a pro-USSR front they would be warming up the electric chair as we speak.

  2. wcw says:

    Apologies, I have to go with the professor on this one. If I as an ordinary citizen have this sort of duty, we have an Official Secrets Act.

    I am not as sanguine about the Supes, but then, I often call them “f@#$wits’.

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