So You Want To Be A Spy?

Maybe you already are! It gets easier every day!
Yesterday, US District Judge T.S. Ellis III of the Eastern District of Virginia (in the dreaded Federal 4th Circuit) ruled that private citizens (with no security clearance or duty of confidentiality) who receive "information relating to the national defense" and transmit it to "any person not entitled to receive it" may be charged with violation of the Espionage Act. The information doesn't have to be classified--in fact, the information itself can already be public, and you could still violate the Act by revealing if your source's recitation of the same information constitutes previously lacking, "closely held" implicit government confirmation that the information is true. And the transmission need not be in tangible form--a couple of conversations over coffee will do. It doesn't matter whether you are a news reporter, a scholar or, as in the case of my dear friend Keith Weissman, a lobbyist and, of course, you can be charged even if, as in his case, the allegations are not true.

Oh, but don't worry, you can only be convicted if the government can prove beyond a reasonable doubt that you knew that the information was "closely held" by the government, that you were not authorized to have it, that the person you told about it was not authorized to receive it and that you passed it on with "a bad purpose" to disregard or disobey the law. So, presumably, you and my friend will be acquitted, having lost only your health, peace of mind, and a few years of your life.

Why is my friend's life being destroyed? Because the Bush Administration has so many dirty secrets that merely cracking down on officials who leak them cannot entirely stem the flow of information. And once it's out, of course, that dratted First Amendment makes it hard to keep quiet. But if merely conversing with a "government source" is a federal crime (it is a crime to "willfully retain[]" the information), maybe those pesky investigative reporters (assuming they still exist) and bloggers can finally be shut down.
Read about US v. Rosen here:
Secrecy News: Recipients of "Leaks" May Be Prosecuted, Court Rules

Discourse.net: US Court Finds We Have An Official Secrets Act


The Volokh Conspiracy

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