FREE SPEECH/FREE PRESS — "In May, federal prosecutors made the dramatic announcement that they
were abandoning their prosecution under the Espionage Act of two former
American Israel Public Affairs Committee (AIPAC) lobbyists for
disclosing classified information," observe Washington, D.C. attorneys Steve Rosen and Keith Weissman, defendants in the case, writing in the National Law Journal. They say their experience is a clear example of how dangerous the World War I era Espionage Act can be to the political speech of private citizens—or the work of journalists.

Seeking to justify their failed
four-year pursuit of the defendants, prosecutors accused Senior U.S.
District Judge T.S. Ellis III of imposing "additional intent
requirements" that were "not mandated by statute."
Indeed, Ellis, who sits in Alexandria, Va., had announced that he
would construe the provision under which Steven Rosen and Keith
Weissman were charged as requiring a heightened state of mind on the
defendants' part, the knowledge that their actions could potentially
harm America's security — a burden the government could not meet.

Ellis ruled as he did in an effort to ensure that the highly unusual
prosecution did not run afoul of the First Amendment. Espionage cases
with serious free speech concerns do not come around that frequently,
but when they do, they test, in a way that few cases ever do, our
commitment to maintaining an open society.

The collapse of the AIPAC prosecution makes clear that we must
urgently reform the 1917 Espionage Act, both to bring it up to date
with a modern understanding of the First Amendment and to minimize the
prospects of costly and unsuccessful indictments in the future.
There is a significant risk, however, that the failures in the AIPAC
case will be forgotten and the whole thing will just fade away (as it
seems to have already done) until the next time the Department of
Justice spots a tempting target. Congress must not let this happen
because the vagueness that now surrounds the law is harmful to free
speech and national security interests alike.

The problems DOJ faced in the AIPAC case were a predictable result
of its attempt to stretch the act beyond its established parameters. In
a typical espionage case in which a defendant is accused of acting as a
mole inside the U.S. government and passing sensitive material to a
foreign power, prosecutors need only show that the accused acted
"willfully." This standard, which essentially means that a person
intended to violate the law and did not make an innocent mistake, is
contained in the statute.

The AIPAC case was very different.
Prosecutors merely alleged that Rosen and Weissman, both civilians and
neither employed by the government, obtained classified information
about Iran's nuclear program through conversations with Lawrence
Franklin, a Pentagon analyst, and then shared these secrets with
reporters and foreign policy experts in an effort to influence U.S.
strategy in the region.

The espionage laws last brushed up in the courts against free speech
protections 25 years ago when the government prosecuted Samuel Loring
Morison, a naval intelligence officer, for leaking secret photographs
of a Soviet aircraft carrier to Jane's Defense Weekly.
Morison claimed he wanted to alert the public to the buildup of the
Soviet navy. He was convicted and jailed, and his conviction was upheld
by a federal appeals court.

However, because free speech was at issue —
Morison's disclosure was to the press, and he did not work for a
foreign power — the courts felt bound to read additional constraints
into the statute to make it constitutional. Judge James Dickson
Phillips of the U.S. Court of Appeals for the 4th Circuit warned
against such judicial gymnastics. The espionage laws "as now broadly
drawn are unwieldy and imprecise instruments," he wrote, and forcing
judges to add new protections not found in the text "on a case-by-case
basis [is] a slender reed upon which to rely for constitutional
application of these critical statutes." His concurring opinion called
upon Congress to revise the act "through carefully drawn legislation."

Since that decision, Congress has done nothing to provide the clarification most needed after Morison:
that, although the law may reach an official with a security clearance
who dishes to the press, it does not apply to private individuals
without security clearance who are not agents of foreign powers.

The continuing uncertainty about the boundary between the Espionage
Act and the First Amendment is reflected in Ellis' holding that the
prosecution would have to show not only that Rosen and Weissman's
activities were "potentially harmful" to the United States but,
crucially, that they also "knew" this fact.

On one level, this
first-of-its-kind ruling indicates that the Espionage Act might be
constitutionally applied to private U.S. citizens, so long as some
higher state-of-mind requirement is satisfied. However, the fact that
the government abandoned a four-year, multimillion-dollar prosecution
because it could not accept Ellis' view of what this requirement
entailed shows that the Espionage Act remains mired in uncertainty.
It's well past time for Congress to define the Espionage Act's
application to defendants like Rosen and Weissman in this case (or
journalists or academics in the next) who are neither "spies" nor sworn
to keep government secrets.