On June 5, 2017, a criminal complaint was filed in the Southern District of Georgia charging Reality Leigh Winner, 25, a federal contractor from Augusta, Georgia, with removing classified material from a government facility and mailing it to a news outlet, in violation of 18 U.S.C. Section 793(e),  more generally known as the Espionage Act.

The critical questions that we should be asking the DOJ prosecutors in regard to the alleged disclosures by Reality Winner are:

Is the information “national defense” information; what does that mean?  Is there real harm to national security — and how is that defined? Was there criminal intent in the disclosure? Who decides?

According to Deputy Attorney General Rod J. Rosenstein, “Releasing classified material without authorization threatens our nation’s security and undermines public faith in government. People who are trusted with classified information and pledge to protect it must be held accountable when they violate that obligation.”

The repeated use of the term ‘classified’ is of interest here.

The Espionage Act statutes that have been used to prosecute most leak cases (18 USC 793, 794) and under which Ms. Winner has been indicted do not mention “classified information” at all.  Rather, they apply to “national defense” information, an imprecise term that is not coextensive with “classified” information. Courts have interpreted the convoluted language of the Espionage Act to mean that only those with the requisite criminal intent will have violated the law.

Our modern classification regime postdates the Act by over 30 years. And yet the indictments and prosecutions under the Act in recent times all have to do with ‘classified information.’  Not, one should note, properly-classified information – which is what the Executive Order says.

The Espionage Act was at the center of the Pentagon Papers case, decided in 1971. Daniel Ellsberg, who leaked the papers, and an associate were tried under the statute, but the judge declared a mistrial, so the case never got to the jury.  The Supreme Court never squarely confronted the frontier question – When is a willful leak “prejudicial to the safety or interest of the United States”?

Judge T.S. Ellis, III, the presiding judge in the AIPAC case, ruled in 2006 that, in order to convict someone of unauthorized disclosure of national defense information (not involving disclosure of documents), it would be necessary for prosecutors “to demonstrate the likelihood of [the] defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”

According to legal experts on classified information and on the Espionage Act, the Supreme Court seems satisfied that national security is a vital interest sufficient to justify some intrusion—at least with respect to federal employees — into activities that would otherwise be protected by the First Amendment.  Although the Court has not held that government classification of material is sufficient to show that its release is damaging to the national security, it has seemed to accept without much discussion the government’s assertion that the material in question is damaging.  (Criminal Prohibitions…, p. 19)

Thus, it is unlikely that a defendant’s bare assertion that information poses no danger to U.S. national security will be persuasive without some convincing evidence to that effect – proving a negative, or proof that the information is not closely guarded by the government. Rather, the fact of government classification will likely “serve as strong evidence to support that contention, even if the information seems relatively innocuous or does not contain much that is not already publicly known.” (Criminal Prohibitions…, p. 16)

How does the current Executive Order on National Security Classification, E.O. 13526, talk about information that needs protection? It notes in the introductory material, “… throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations.  Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.”

As CRS has noted, barring such a showing, the Espionage Act become a means to punish whistle-blowers who reveal information that poses more of a danger of embarrassing public officials than of endangering national security. (Criminal Prohibitions…, p. 19)  To which many would say, “Exactly…”

Patrice McDermott