Shadow Government

Replace the Espionage Act

Australian citizen and WikiLeaks founder Julian Assange is clearly an "enemy of the United States," as the Wall Street Journal argues, and the Obama administration is rightly considering prosecuting him for espionage. I agree with my colleague Peter Feaver that the disclosure of State Department cables hurts our diplomats' abilities to do their jobs. But a more pressing and complex question is whether the New York Times should be prosecuted as well.

It is a crime to disclose classified information under the Espionage Act of 1917 (see 18 U.S. Code § 793, paragraph e). The Supreme Court upheld its constitutionality in Schenck vs. United States (1919). The Court ruled that "Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent." The First Amendment does not protect espionage.

The most famous prosecution under the Espionage Act was the Pentagon Papers case, New York Times vs. United States (1971), in which the Nixon administration attempted to stop the publication of a Department of Defense internal history of the Vietnam War. The Nixon administration lost the case and the New York Times (and others) published the history in full. Since the Pentagon Papers case, administrations have been generally reluctant to prosecute under the Espionage Act both because of the perceived difficulty of winning a conviction and because of general discomfort with the idea of suing the media for the content of what they publish.

The Pentagon Papers case is, however, a poor guide to Espionage Act prosecutions. The administration sought to prevent the Times from publishing, not bring criminal charges against it for what it had already published. The Court ruled that such attempts at "prior restraint" must meet a higher standard, which the Nixon administration failed to do regarding the Pentagon Papers -- which was, after all, just an internal history, not a record of ongoing operations. The Court did not invalidate the Espionage Act, nor did the ruling acquit the New York Times.

In fact, Supreme Court Justice Byron White, in his concurrence, practically invited the administration to pursue prosecution against the New York Times after the publication was completed. The "failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication," he wrote, "I would have no difficulty in sustaining convictions under these sections on facts that would not justify … prior restraint." This was in 1971.

Much more recently, the New York Times (among other media outlets) has a well-established habit of disclosing classified information. In 2005 it disclosed the existence of the National Security Agency's terrorist surveillance program. In 2006 it disclosed the U.S.'s efforts to track terrorists' financial transactions through bank records. In July 2010 it was complicit in WikiLeaks's disclosure of some 92,000 U.S. military documents related to the Afghan War. In October, it helped publicize WikiLeaks's access to 400,000 U.S. military documents related to the Iraq War. And in November it helped with the disclosure of 250,000 diplomatic cables.

The administration is considering prosecuting Assange. But what is the difference between Assange and the New York Times? Why prosecute one but not the other? They both had unauthorized access to classified information and they both communicated the information to others to the detriment of U.S. national security. The New York Times will invoke the First Amendment, but the Supreme Court ruled 91 years ago that the press is not free to disclose classified information, despite current practice. There does not seem to be a convincing reason in principle not to prosecute the Times for espionage and treason.

This reductio ad absurdum is worth exploring to illustrate the absurdity of the situation we are now in. The United States government for all intents and purposes is legally unable to protect classified information, safeguard national security, and prosecute leaks. The one tool it has -- the Espionage Act -- is a nearly century-old statute that is so draconian, politically radioactive, and difficult to implement that it is essentially defunct. The law was written in a time when there were fewer media outlets and they policed themselves with an ethic of responsibility -- in other words, ancient history. Faced with an epidemic of leaks, presidents face the choice of either doing nothing or literally accusing the press of treason. No president is going to do the latter. Under current practice, the press may disclose classified information with complete impunity.

The Obama administration should, in addition to prosecuting Assange for espionage, seek to replace the Espionage Act with a Secrecy Act that is more useable. Many (but not all) sections of the Espionage Act require demonstrating an intent to harm the United States. Demonstrating intent is virtually impossible and shouldn't be required anyway: The damage to U.S. national security is the same regardless of the source or motivation of the leak. A generic Secrecy Act should define as a crime the leaking and publishing of classified information regardless of intent.

Additionally, espionage convictions carry steep penalties, ranging from decades in prison to the death penalty. Secrecy violations, by contrast, should allow a range of lesser penalties starting with fines. If the FCC can fine television stations for uttering profanity on air, why can't the government fine newspapers for disclosing classified information? That would equip the administration with a far more useable tool that would impose a real cost on media outlets. It goes without saying that such a law should include appropriate oversight and accountability, and also include a mechanism to oversee the government's classification decisions, many of which are truthfully unjustifiable. But it is past time to update the law to protect classified information and cope with the new media realities.

NICHOLAS KAMM/AFP/Getty Images

Shadow Government

The New START fight is about politics, not national security

President Obama appeared yesterday with former Secretary of State Colin Powell, and received his endorsement of the New Strategic Arms Reduction Treaty (START) with Russia. In today's Washington Post, Powell joined Henry Kissinger, George Shultz, James Baker, and Lawrence Eagleburger in presenting "The Republican case for ratifying New START."

With former Republican officials coming out in favor of the treaty's ratification and amidst reports that some Senate Republicans may be willing to trade New START for an extension of the Bush tax cuts, New START ratification now seems to be mostly a matter of timing.

That said, the debate over New START has been an interesting one on both the left and the right. Many conservatives rightly highlighted a number of substantive concerns about the treaty in the months after Obama and Russian President Dmitry Medvedev signed it in April, but some took their opposition further. Former Massachusetts governor and potential presidential candidate Mitt Romney wrote an op-ed calling the treaty, "Obama's worst foreign policy mistake," and in June, a group of conservative leaders wrote in a "memo for the movement" that New START "will make America less safe."

The reality, as I lay out in more detail in a piece on ForeignPolicy.com, is that New START is a rather meaningless treaty. The treaty would reduce the U.S. nuclear arsenal by only a modest amount and leave us at levels that most experts agree are sufficient to maintain our global nuclear deterrent. Most of the concerns expressed by New START critics are due to the bungled manner in which the Obama administration announced its new phased adaptive approach for missile defense last year, as well as the savvy rhetorical games played by the Russians in a signing statement they released on missile defense. Fortunately, the resolution of ratification approved by the Senate Foreign Relations Committee and subsequent administration statements address most of these concerns about missile defense and other contentious issues. Once New START reaches the Senate floor, critics will also have the opportunity to further modify the resolution of ratification to address any outstanding questions.

The most convincing argument that New START critics make is that the president's focus on disarmament and the time invested in Cold War-era arms control negotiations have diverted attention from the real proliferation challenges the United States faces, such as Iran and North Korea. But rejecting New START is not going to address that problem. That problem can only be solved by putting a new president in the White House.

Another valid concern is ensuring that as we reduce our nuclear stockpile, the weapons that remain are viable and modernized. That has been the focus of Arizona Sen. Jon Kyl, the leading Republican expert in the Senate on the issue. Through his efforts, the administration has pledged roughly $85 billion over the next ten years for weapons modernization. Kyl is seeking some final assurances that the money will actually be delivered in the years to come, but once he and other senators are satisfied that this is the case, Republicans should support ratification of New START.

Just as some of the conservative opposition to the treaty has been overstated, the case made by the administration and its surrogates for ratification during the lame duck session has often veered into the absurd. On NBC's Meet the Press on Nov. 28, Senator Dick Durbin (D-Ill.) stated that New START ratification was required this year to retain Russia's support for preventing a nuclear Iran. The administration has also been pressuring Jewish organizations to lobby Republicans because of this tenuous connection. The reality is that Russia has been a reluctant partner in our efforts to halt Iran's progress toward a nuclear weapon and there is no indication that the ratification or non-ratification of New START would impact those efforts. Other administration surrogates have implied that the lack of a current verification mechanism means that Russian nukes might fall into the hands of terrorists, which is laughable given that New START is not about nuclear security, but about confidence building between the world's two largest nuclear powers.

The real reason the administration wants this legislative victory is because of the importance it has placed on its "reset" of relations with Russia. As some of the cables released by WikiLeaks show, the reset is based on fundamentally unsound judgments about the type of regime that inhabits the Kremlin. Republicans should caution the administration about its efforts to embrace President Medvedev and should call for more pressure on Moscow on human rights and ending Russia's occupation of Georgian territory -- but New START is not the vehicle for achieving these goals or killing the reset.

The president has said that "there is no higher national security priority [than New START] for the lame-duck session of Congress." Some have argued that after his party's crushing defeat at the polls, Obama will now turn to foreign policy. The difficulty with this is that thus far he has very few foreign policy successes to cling to. That, not national security concerns, is why he is so desperate to get New START ratified this year.

SAUL LOEB/AFP/Getty Images