On Aug. 9, a federal district court ruled that use of the Espionage Act to prosecute private citizens for receiving and transmitting national security information is constitutional. The decision to extend the Espionage Act to non-governmental employees has sweeping implications for open government and freedom of speech and the press, and raises the prospect of the U.S. adopting an Official Secrets Act similar to that of the UK. The case involves Steven Rosen and Keith Weissman of the American Israel Public Affairs Committee (AIPAC) who received classified information from Lawrence Franklin, a Department of Defense (DOD) employee. According to the indictment, Rosen and Weissman received what they knew was classified information and relayed that information to a Washington Post employee, a foreign policy analyst at a think tank, and an official of the Israeli government. Franklin received a 10-year sentence for violating the Espionage Act and "willfully" communicating national defense information "to any person not entitled to receive it." Federal prosecutors recently indicted Rosen and Weissman for receiving and transmitting national defense information which they were not authorized to receive. This is the first time the Espionage Act has been used to prosecute a non-government employee, who did not intend to harm the government, and could open the door to the prosecution of journalists and others who at times may receive and transmit sensitive information. Rosen and Weissman sought a dismissal, arguing that the case violated the Fifth Amendment's due process clause and the First Amendment's protection of free speech. Judge T.S. Ellis dismissed the request and allowed the case the go forward. Ellis rejected the defense's claim that the Espionage Act violated the due process requirement because it is unconstitutionally vague, and, in his ruling, specified requirements that must be met for a non-government employee to be guilty of disclosing sensitive national security information. First, the prosecutor has to show that the information is related to national defense by proving that:

1. "the information relates to the national defense, intelligence gathering or foreign policy;"
2. "the information is closely held by the government, in that it does not exist in the public domain"; and
3. "the information is such that its disclosure could cause injury to the nation's security."

Second, the prosecutor has to show that the information was transmitted to someone not entitled to receive it by proving that:

1. "a validly promulgated executive branch regulation or order restricted the disclosure of information to a certain set of identifiable people,"; and
2. "the defendant delivered the information to a person outside this set."

Third, the government has prove that "the person alleged to have violated these provisions knew the nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal." Lastly, the government must prove that "the defendant had reason to believe that the disclosure of the information could harm the United States or aid a foreign nation." In response to the claim that the Espionage Act violates freedom of speech, Ellis commented that the case, "exposes the tension between government transparency so essential to a democratic society and the government's equally compelling need to protect from disclosure information that could be used by those who wish this nation harm." The court found that the statute's narrowly crafted protection against the disclosure of national security information which can harm the United States, ". . . is [a] reasonable, and therefore constitutional exercise of its power." The ruling has potentially severe implications for the freedom of the press and national security whistleblowers. As noted by Stephen Aftergood of the Federation of American Scientists, the reporting of the Abu Ghraib prisons would likely be found to fit the above requirements. The Abu Ghraib reports were based on classified national security information and the short-term consequences of the transmittal of such information to those not authorized to receive it harmed the interests of the United States. "And yet the disclosure also served an important national purpose in prompting a public debate over U.S. policy on prisoner detention and interrogation," states Aftergood. The Espionage Act has roundly been criticized as poorly drafted, and Ellis, near the end of his opinion, makes the rare remark "that the time is ripe for Congress to engage in a thorough review and revision of [the Espionage Act] to ensure that [it] reflect[s] . . . contemporary views about the appropriate balance between our nation's security and our citizens' ability to engage in public debate about the United States' conduct in the society of nations." In the meantime, the Justice Department may exploit the current imbalance to prosecute journalists who disclose national security programs, like the National Security Agency's domestic spying efforts and interrogation tactics of the U.S. military and Central Intelligence Agency. The threat of prosecution may chill the exercise of free speech and thereby harm the national dialogue on vital national security issues. In the recent past, covert efforts have been undertaken to impose an Official Secrets Act to protect national security information. For example, in 2000, Congress quietly attached such a provision to an intelligence authorization bill that was never the subject of public hearings. President Bill Clinton felt the provision was too extreme and vetoed the bill in order to kill the secrecy provision. Congress is now considering legislation to achieve the same objective. As Justice Potter Stewart noted in the Pentagon papers case (and Judge Ellis quoted), "In the absence of the government checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry -- in an informed and critical public opinion which alone can here protect the values of democratic government."