A snake in the grass?: section 798 of the espionage act and its constitutionality as applied to the press

George Washington Law Review

Volumn 77, Issue 3, 2009, Pages 766-798

  Croner, Andrew ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 67650477871     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (135)

1. Potter Stewart, "Or of the Press," 26 Hastings LJ. 631, 634 (1975).
2. H.R. Rep. No. 81-1895, at 2 (1950), as reprinted in 1950 U.S.C.C.A.N. 2297, 2299.
3. See Nicholas D. Kristof, Op-Ed., Don't Turn Us into Poodles, N.Y. Times, July
4. 4, 2006, at A15 (noting that the press has a "watchdog role" when it comes to government affairs).
5. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, at Al.
6. Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-1863 (2000).
7. The terms "electronic surveillance" and "United States person" are defined by FISA. See 50 U.S.C. § 1801(f), (i).
8. See Risen & Lichtblau, supra note 4. It may be worth noting that NSA was still required to obtain warrants to monitor entirely domestic communications, as the authorization by President Bush only applied to domestic communications that had a foreign component. Id.
9. See id. (explaining that several officials claimed the program had helped to uncover a plot by Iyman Faris, an Ohio truck driver and naturalized citizen, to support Al-Qaeda by bringing down the Brooklyn Bridge with blowtorches).
10. Gabriel Schoenfeld, Has the "New York Times" Violated the Espionage Act?, Comment. Mag., Mar. 2006, at 23, 23, available at http://www.commentarymagazine.com/viewpdf.cfm7article-id=10036 (noting that "[n]ot since Richard Nixon's misuse of the CIA and the IRS in Watergate have civil libertarians so hugely cried alarm" and that "[ljeading Democratic politicians have spoken darkly of a constitutional crisis").
11. Risen & Lichtblau, supra note 4.
12. U.S.C. § 798 (2006).
13. Espionage Act, ch. 30, 40 Stat. 217 (1917) (codified as amended in scattered sections of 18 U.S.C).
14. See John C. Eastman, Listening to the Enemy: The President's Power to Conduct Surveillance of Enemy Communications During Time of War, 13 ILS A J. Int'l & Comp. L. 49, 58-66 (2006); Schoenfeld, supra note 9, at 28-31.
15. Section 798 states:
16. (a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information-(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2)concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the process of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes Shall be fined under this title or imprisoned not more than ten years, or both.(b) As used in subsection (a) of this section The term "classified information" means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution; The terms "code," "cipher," and "cryptographic system" include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications; The term "foreign government" includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States. 18 U.S.C. § 798(a)-(b).
17. Id. § 798.
18. Id. § 798(b).
19. 18 U.S.C. § 798(a); see Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 Colum. L. Rev. 929,1065 (1973) ("[T]he use of the term 'publishes' makes clear that the prohibition is intended to bar public speech.").
20. N.Y. Times Co. v. United States (Pentagon Papers Case), 403 U.S. 713, 720-23 (1971) (Douglas, J., concurring) (finding that § 93 of the Espionage Act was inapplicable to the press because it did not contain the word "publish" in its statutory text).
21. See 18 U.S.C. § 798(a); Edgar & Schmidt,supra note 17, at 1065 ("[T]he statute and its history make evident that violation occurs on knowing engagement in the proscribed conduct, without any additional requirement that the violator be animated by anti-American or pro-foreign motives.").
22. See generally 18 U.S.C. §§ 793-798.
23. Eric E. Ballou & Kyle E. McSlarrow, Note, Plugging the Leak: The Case for a Legislative Resolution of the Conflict Between the Demands of Secrecy and the Need for an Open Government, 71 Va. L. Rev. 801, 812 (1985); see also Joe Bant, Comment, United States v. Rosen:
24. Pushing the Free Press onto a Slippery Slope?, 55 U. Kan. L. Rev. 1027,1030-31 (2007); James A. Goldston, Jennifer M. Granholm & Robert J. Robinson, A Nation Less Secure: Diminished Public Access to Information, 21 Harv. C.R.-C.L. L. Rev. 409, 423 n.76 (1986); Stephen I. Vladeck, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 Harv. L. & Pol'y Rev. 219, 225 (2007).
25. U.S.C. § 798(a)(l)-(2).
26. See, e.g., Eric Lichtblau, Senate Votes for Expansion of Spy Powers, N.Y. Times, Feb. 13, 2008, at Al (detailing a recent Senate vote in favor of broadening the NSA's surveillance powers).
27. Act of May 13, 1950, ch. 185, Pub. L. No. 81-513, 64 Stat. 159.
28. Act of Oct. 31,1951, ch. 655, Pub. L. No. 82-248, 65 Stat. 719.
29. Edgar & Schmidt, supra note 17, at 1064 & n.371.
30. Id. at 1069.
31. See generally H.R. Rep. No. 81-1895 (1950); S. Rep. No. 81-111 (1949).
32. H.R. Rep. No. 81-1895, at 2-3; S. Rep. No. 81-111, at 3-4.
33. H.R. Rep. No. 81-1895, at 3; S. Rep. No. 81-111, at 3.
34. H.R. Rep. No. 81-1895, at 3; S. Rep. No. 81-111, at 3.
35. See H.R. Rep. No. 81-1895, at 3; S. Rep. No. 81-111, at 4.
36. See H.R. Rep. No. 81-1895, at 2; S. Rep. No. 81-111, at 2.
37. H.R. Rep. No. 81-1895, at 2; S. Rep. No. 81-111, at 2.
38. H.R. Rep. No. 81-1895, at 2; S. Rep. No. 81-111, at 2.
39. See generally H.R. Rep. No. 81-1895 (neglecting to mention the statute's effect on the press); S. Rep. No. 81-111 (same).
40. H.R. Rep. No. 81-1895, at 2; S. Rep. No. 81-111, at 3.
41. H.R. Rep. No. 81-1895, at 2; S. Rep. No. 81-111, at 2.
42. H.R. Rep. No. 81-1895, at 3; S. Rep. No. 81-111, at 3.
43. See Edgar & Schmidt, supra note 17, at 1065-66.
44. United States v. Boyce, 594 F.2d 1246 (9th Cir. 1979).
45. Id. at 1248.
46. Id.
47. Id.
48. Id. at 1248-49.
49. Id. at 1251.
50. Id.
51. Harold Edgar & Benno C. Schmidt, Jr., Curtiss-Wright Comes Home: Executive Power and National Security Secrecy, 21 Harv. C.R.-C.L. L. Rev. 349, 391-92 (1986) ("The Boyce court ignored the fact that the Conference Report, the clearest statement in the legislative history of § 798, states that 'the classification must be in fact in the interests of national security.'"); see also supra notes 39-40 and accompanying text (discussing possible legislative intent to allow a misclassification defense).
52. See, e.g., Edgar & Schmidt, supra note 48, at 351 ("[T]he years since the Pentagon Papers have seen a considerable enhancement of executive power in areas of national security secrecy, an aggrandizement significantly assisted by the Supreme Court, with Congress noticeably absent from the discourse.").
53. See, e.g., Nat Hentoff, Bush Revives Espionage Act, Village Voice, Nov. 15-21, 2006, at 16, available at http://www.villagevoice.com/news/0646,hentoff,75002,6.html (noting that the Bush Administration "devoutly believes in [a] sovereign right to keep secret everything it can").
54. Dom Bonafede, Muzzling the Media, 18 Nat'l J. 1716,1716 (1986) (quoting Allan Ad- ler, counsel for the ACLU, as claiming that the Reagan Administration "has far surpassed any previous Administration in demonstrating its disdain for the public's right to know what it is doing").
55. See Hentoff, supra note 50, at 16.
56. See Bonafede, supra note 51, at 1717-18; Gilbert Cranburg, Comment, The Casey Offensive, 25 Colum. Journalism Rev. 18,18-19 (1986); Stephen Engelberg, C.I.A. Director Requests Inquiry on NBC Report, N.Y. Times, May 20, 1986, at A17; Stephen Engelberg, Justice Agency Said to Resist C.I.A. Call to Prosecute News Groups, N.Y. Times, May 8, 1986, at B18
57. [hereinafter Engelberg, Justice Agency Said to Resist C.I.A. Call]; Stephen Engelberg, U.S. Aides Said to Have Discussed Prosecuting News Organizations, N.Y. Times, May 21, 1986, at A18 [hereinafter Engelberg, U.S. Aides]; Stephen Engelberg, White House Backing C.I.A. on Prosecuting Publications, N.Y. Times, May 9,1986, at A14 [hereinafter Engelberg, White House Backing C.I.A.]; Richard Zoglin, Questions of National Security, Time, June 2, 1986, at 67.
58. See, e.g., Engelberg, White House Backing C.I.A., supra note 53.
59. Zoglin, supra note 53, at 67.
60. Id.
61. See id.
62. See Engelberg, U.S. Aides, supra note 53.
63. See Engelberg, Justice Agency Said to Resist C.I.A. Call, supra note 53.
64. See Bonafede, supra note 51, at 1718-19; Zoglin, supra note 53, at 67.
65. U.S. Const, amend. I.
66. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 708 (1931).
67. See id.
68. Cox Broad. Corp. v. Cohn, 420 U.S. 469,492 (1974) ("Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.").
69. See, e.g., Fla. Star v. B.J.F., 491 U.S. 524, 536-37 (1989) (finding the investigation of a criminal offense to be "a matter of public significance" in upholding publication of victim's name); Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979) (holding that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order"); Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 839 (1977) (finding that the "operations of the courts and the judicial conduct of judges are matters of utmost public concern" in striking down a statute that punished the publication of details related to inquiries into judicial misconduct); Okla. Publ'g Co. v. Dist. Court, 430 U.S. 308, 311-12 (1977) (holding that once information was "publicly revealed" in a courtroom, a court could not enjoin the press from publishing it); Neb. Press Ass'n v. Stuart, 427 U.S. 539, 596 (1976) (Bren- nan, J., concurring) (noting that what transpires in a courtroom is public property in striking down a press "gag order" issued by a trial court); Cox, 420 U.S. at 492 (overturning contempt sanctions for publishing a rape victim's name because rape prosecutions "are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report"); Bridges v. California, 314 U.S. 252, 268-69 (1941) (taking into consideration the amount of public interest in materials that were the subject of contempt sanctions against a journalist in overturning those sanctions).
70. Bartnicki v. Vopper, 532 U.S. 514 (2001).
71. Id. at 525, 534.
72. id. at 535.
73. id. at 534.
74. See id. at 524 ("The constitutional question before us concerns the validity of the statutes as applied to the specific facts of these cases."); see also id. at 535-36 (Breyer, J., concurring) (agreeing with the "narrow holding limited to the special circumstances present here").
75. Laura E. Zirkle, Note, Bartnicki v. Vopper: A Public Concern Exception for the Press and Its Disclosure of Unlawfully Obtained Information, 11 Geo. Mason L. Rev. 441,459 (2002).
76. Fla. Star v. B.J.F., 491 U.S. 524, 534 (1989).
77. Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 845 (1978).
78. CIA v. Sims, 471 U.S. 159 (1985).
79. U.S.C. § 552 (2006); Sims, 471 U.S. at 164.
80. Sims, 471 U.S. at 175.
81. Id. at 179.
82. Dep't of the Navy v. Egan, 484 U.S. 518 (1988).
83. Id. at 520, 534.
84. Id. at 527.
85. N.Y. Times Co. v. United States (Pentagon Papers Case), 403 U.S. 713 (1971).
86. Id. at 714.
87. Id. at 718 (Black, J., concurring).
88. Id. at 714 (quotation omitted).
89. Id. at 737 (White, J., concurring).
90. Id. at 730.
91. Id. at 752, 759.
92. Id. at 758-59.
93. Some have speculated that Justice Marshall's concurring opinion suggests that he would have similarly approved. See, e.g., Scott Johnson, Did the New York Times Break the Law with Its Wire-Tapping Story?, Wkly. Standard, Mar. 13, 2006, available at http://www.weeklystandard.com/ Utilities/printer-preview.asp?idArticle=6631&R=EB9524AED.
94. See supra Part III.B.
95. See Dep't of the Navy v. Egan, 484 U.S. 518,527 (1988); CIA v. Sims, 471 U.S. 159,175, 179 (1985).
96. Bartnicki v. Vopper, 532 U.S. 514, 534 (2001).
97. Grayned v. City of Rockford, 408 U.S. 104,108 (1972).
98. Id. at 108-09 (citations omitted).
99. Sections 793(d) and (e) state:
100. (d) Whoever, lawfully having possession of, access to, control over, or being entrusted with 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it;
101. Whoever having unauthorized possession of, access to, or control over 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it. Shall be fined under this title or imprisoned not more than ten years, or both.18 U.S.C. § 793(d)-(e) (2006).
102. Compare id. ("relating to the national defense"), with id. § 798 (concerning United States "communication intelligence activities").
103. United States v. Morison, 844 F.2d 1057 (4th Cir. 1988).
104. Id. at 1063.
105. id. at 1060-61.
106. U.S.C. § 793(d)-(e).
107. Id.
108. id.
109. Morison, 844 F.2d at 1071, 1074.
110. Id. at 1074.
111. Id.
112. Id. (citing McGehee v. Casey, 718 F.2d 1137,1143-44 (D.C. Cir. 1983); United States v. Truong Dinh Hung, 629 F.2d 908, 919 (4th Cir. 1980)).
113. Id.
114. United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006).
115. Id. at 624. no Id. at 607-08. in Id. at 608.
116. See id. at 610, 617.
117. 113See id. at 613-14, 623-24.
118. Id. at 624.
119. Id. at 625-26.
120. Id. at 618.
121. See supra note 100 and accompanying text.
122. Rosen, 445 F. Supp. 2d at 625 (quoting United States v. Morison, 844 F.2d 1057, 1071 (4th Cir. 1988)).
123. Id.
124. Id. at 625-26.
125. Id. (quoting 18 U.S.C. § 793(d)-(e) (2006)).
126. Id. at 627; see also Gorin v. United States, 312 U.S. 19, 27-28 (1941) ("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.'" (quoting Espionage Act of June 15,1917, ch. 30, § 2(a), 40 Stat. 217, 218 (current version at 18 U.S.C. § 794(a) (2006)))).
127. Rosen, 445 F. Supp. 2d at 627.
128. See Edgar & Schmidt, supra note 17, at 1065 ("[T]he inevitable vagueness in defining what [] information is subject to restriction [under § 798] is substantially mitigated, although perhaps at the cost of overbreadth, by making classification an element of the offense.").
129. U.S.C. § 798(a)(3) (2006).
130. See United States v. Morison, 844 F.2d 1057,1074 (4th Cir. 1988).
131. See, e.g., Editorial, Espionage Acting, Wall St. J., Aug. 17, 2006, at A8 (commenting that the Justice Department was prosecuting a pair of lobbyists for something journalists do every day sharing what they have heard).
132. Compare 18 U.S.C. § 793(d)-(e) ("[Wjhich 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"), with id. § 798 (lacking similar language).
133. See id. § 798(a).
134. See United States v. Rosen, 445 F. Supp. 2d 602, 625-27 (E.D. Va. 2006).
135. See Ballou & McSlarrow, supra note 21, at 807 n.29 ("The term 'willfully' in subsections 793(d) and (e) does not solve the overbreadth problem because a conventional reading of 'willfully' would render any deliberate transfer of defense-related documents criminal without requiring an additional harmful purpose."); Goldston et al., supra note 21, at 429-30 n.101 (pointing out the contradiction in the Morison court allowing the term '"willfully"' to save