This week, Sen. Ron Wyden (D-Or.) and Rep. Ro Khanna (D-Cal.) introduced what is only the second proposal to reform the federal Espionage Act since that law was enacted in 1917.
The Espionage Act — read literally — permits the government to prosecute anyone who discloses government secrets to others not authorized to receive them (including persons who have never agreed to protect government secrets as part of their work). It is the main federal law used to prosecute national security media “leaks.”
The Wyden-Khanna bill focuses on journalists and news organizations. It would make only modest improvements to the sections of the law that permit the government to prosecute journalistic sources who have agreed to protect secrets. But it also comes at a time when press freedom advocates fear that the chance of something that has until now been thought unlikely — the prosecution of a journalist for publishing government secrets — is significantly higher than in the past.
As detailed in the Reporters Committee’s comprehensive survey of federal news media leak cases throughout history, there has been a dramatic uptick in just the last decade in cases involving national security reporting.
Prior to 2009, the government had successfully prosecuted only one source under the Espionage Act, a naval analyst charged with leaking photographs of Soviet ships. President Bill Clinton pardoned that man, Samuel Loring Morison, in 2001 precisely because his case was so unusual. Never before had a journalistic source been prosecuted successfully as a spy.
That changed with investigations started under President George W. Bush, which led to prosecutions under President Barack Obama. Obama brought 10 cases against journalistic sources and one against a Navy contractor accused in part of sending classified documents to a public archive. These include a number of high-profile cases, including the Chelsea Manning court martial and the still-pending Espionage Act indictment of Edward Snowden.
That trend continues under President Donald Trump. To date, his administration has brought charges in eight journalistic source cases and in one that involves the public disclosure of classified information, that of WikiLeaks founder Julian Assange.
The Assange case is particularly concerning because prosecutors were able to secure an indictment against Assange under the Espionage Act based in part on the sole act of publishing government secrets. This is the first time in American history where the government has deployed this legal theory, and there is nothing in the text of the Espionage Act stopping the Justice Department from using the same theory against a member of the press.
How would the Wyden-Khanna bill narrow the Espionage Act?
The bill introduced this week would make two primary changes to the law.
Before detailing these reforms, it’s helpful to understand a basic concept in criminal law. Generally speaking, there are two different types of crimes. First, there are “completed” crimes — that is, crimes that one has performed oneself (think pulling the trigger in a shooting). A defendant in these “completed” crimes is charged as the “principal.”
Second, there are incomplete crimes, like conspiracy, acting as an accomplice, aiding and abetting, accessory after the fact, and failing to report a crime. In other words, these are cases where one hasn’t pulled the trigger, but where the defendant, say, buys the gun or lets the shooter hide out on their property.
Under the literal text of the current Espionage Act, even individuals who don’t have a security clearance and haven’t promised to keep government secrets can be charged as a “principal.” The applicable section of the Espionage Act covers anyone who has access to “national defense information,” and who “communicates, delivers, [or] transmits” that information to someone not entitled to receive it. The Justice Department has consistently and repeatedly taken the position that “communicates” or “transmits” includes the act of publication.
The Wyden-Khanna bill would effectively eliminate this provision and would prohibit cases charging anyone other than individuals who have authorized access to classified material and who have signed a non-disclosure agreement. In other words, members of the general public, including journalists, could no longer be charged under the law as a principal — as if they had “pulled the trigger.”
The bill preserves liability for “agents of a foreign power” as defined in the Foreign Intelligence Surveillance Act. The specific definition is complicated, but the basic concept is that individuals who are acting at the direction of a foreign power and who are assisting someone who has signed a secrecy agreement are much more likely to be engaged in what we would all consider traditional espionage, and should therefore be easier to charge with an “incomplete” crime.
For non-foreign agents who haven’t signed a secrecy agreement, the Wyden-Khanna bill would significantly narrow the potential scope of liability for those who haven’t themselves “pulled the trigger,” which is particularly important for journalists. Under current law, there is a significant concern that a national security reporter interacting with a source in a story involving the disclosure of classified information — even if eminently newsworthy and in the public interest — could be charged as a conspirator or abettor of the disclosure.
Conspiracy can be thought of as a “meeting of the minds” where two or more people agree to do the “bad” thing. If I contract out a hit, I’m a conspirator, and I can be charged the same as the person who pulls the trigger. Abetting is even broader, and the word “abet” can encompass just encouraging someone to pull the trigger.
In the context of national security journalism, there is a significant concern that the act of soliciting, receiving, and agreeing to publish government secrets could be the basis of a conspiracy or abetting charge against a journalist.
That’s the basic theory behind most of the Assange charges: that Assange abetted Manning’s violation of the Espionage Act by encouraging the leak and agreeing to publish the material. (The indictment prominently quotes Assange as saying “curious eyes never run dry” when Manning suggested there might not be more material to pull.) It was also the argument the FBI made in a 2011 search warrant for a national security reporter’s emails in a leak investigation.
The Wyden-Khanna bill would significantly limit the government’s ability to charge a national security reporter under this theory.
First, it would require that the defendant “directly and materially aid” or pay for the “commission of the” underlying offense by the person who signed a non-disclosure agreement. Granted, the language here could be tighter. It should be read to require participation in the underlying “acquisition” of the classified information, like giving a source a key or a password. Nevertheless, even in its current form, it would be a significant improvement over current law.
Second, it would require that the defendant act with the “specific intent” to “harm the national security of the United States” or “benefit any foreign government to the detriment of the United States.”
Again, although this language could still be subject to misuse against, say, a columnist critical of U.S. foreign policy, it would significantly limit the scope of existing law and require prosecutors to introduce evidence at trial that the defendant was motivated to harm U.S. national security. National security reporting on newsworthy stories in the public interest — particularly stories that reveal improper government actions — would almost certainly not meet this intent standard.
Finally, the reform bill includes a provision that clarifies that “direct and material aid” cannot include “counseling, education, or other speech activity” or the provision of electronic communications services to the public, which is likely meant to protect news organizations that provide services like SecureDrop for the anonymous collection of potentially classified information.
But doesn’t the First Amendment already protect journalists?
There is an argument that the bill actually authorizes a new crime that was until now hypothetical and potentially unconstitutional. In other words, it’s still up in the air as to whether the public disclosure of information in the public interest by someone who hasn’t promised to protect secrets can constitutionally violate the spying laws. By passing this law, the argument follows, Congress is confirming to a court that it believes such activity can be punished under the First Amendment.
This concern should not be discounted, but there are a couple of responses.
One, every court that has addressed whether the existing Espionage Act can constitutionally apply to journalistic sources has found that it can. The arguments in that context are similar to the arguments one would advance in defense of a journalist. Things are, in other words, already quite grim under existing law.
Two, a constitutional challenge would still be available even under the Wyden-Khanna bill’s reforms. If an aggressive prosecutor attempted to try an opinion writer who merely expressed ideological disagreement with some specific U.S. foreign policy position or action while reporting on classified information, any defendant could still bring an “as-applied” challenge to the reformed Espionage Act. All laws have to comply with the First Amendment.
While it is true that the fact Congress has spoken on the issue could make a judge more likely to reject an as-applied challenge, the state of the law is so bad — and the uptick in journalistic source cases over the last decade so concerning — that the improvements proposed in the Wyden-Khanna bill are worth that risk.
Finally, contrary to a lot of conventional wisdom, there is no guarantee that a constitutional challenge to the post-publication punishment of a news organization for disclosing government secrets will succeed. The Pentagon Papers case, for instance, only held that the government can’t restrain the publication of secrets, but at least five judges signaled they would uphold the post-publication punishment of a journalist for reporting secrets.
Additionally, the other line of cases news organizations would point to, which hold that a journalist who lawfully acquires information can publish that information without fear of prosecution, even if it has been unlawfully acquired by a source, have never addressed whether that rule applies to the Espionage Act. The most recent Supreme Court case on the question, Bartnicki v. Vopper, dealt only with whether a radio talk show host could be sued for broadcasting an illegally wiretapped conversation.
In sum, the concern that passing reform legislation could be counterproductive is valid, but, on balance, the Wyden-Khanna bill would probably result in stronger protections for journalists than currently exist even under the First Amendment.
What happens if the bill gets worse as it moves through Congress?
Many First Amendment advocates who work in this area have long feared that opening up the Espionage Act could actually make the law worse because national security hawks in both parties could seek to expressly criminalize the public disclosure of government secrets, much like the Official Secrets Act in the United Kingdom.
This concern is, again, well taken. As introduced, the Wyden-Khanna bill would significantly protect journalists from being treated as spies for reporting newsworthy government secrets. Were it amended in a way that would make existing law worse (or significantly decrease the viability of a First Amendment defense), press advocates would almost certainly oppose the bill. But the need for greater protections in this area is pressing and the bill would, if passed in its current form, make the world a better place.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.