Espionage and the First Amendment after WikiLeaks.

Author:Alford, Roger P.
Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law

This panel was convened at 3:00 p.m., Thursday, March 24, by its moderator, Edward T. Swaine of George Washington University School of Law, who introduced the panelists: Roger P. Alford of Pepperdine University School of Law; Mary-Rose Papandrea of Boston College Law School; and Simon Chesterman of the National University of Singapore and New York University School of Law. **


By Roger P. Alford

"Information wants to be free" is their mantra. (1) Yet we know this cannot always be true, particularly when it comes to government information. Every U.S. administration from the most progressive--Woodrow Wilson, Franklin Roosevelt, or Jimmy Carter--to the most conservative--Richard Nixon or George W. Bush--recognizes the importance of government secrets. (2) Anyone who has ever served in government, clerked for a judge, worked in a law firm, been active in business, or raised a teenager knows that certain information should not be free.

Governments seek to protect against leaks in a variety of ways. With respect to national security, we have sophisticated technology, security clearances, classifications systems, non-disclosure agreements, and civil and criminal statutes to protect confidential government information. Constitutional provisions regarding treason express this concern. (3) The Espionage Act, which dates back to World War I, is the most complete expression of this concern. (4) Laws against the disclosure of diplomatic cables were enacted in 1929 after a senior State Department official, Herbert Yardley, wrote a book describing the State Department's code-breaking procedures. (5) More laws were passed in 1938 to address the disclosure of photographs of vital military and naval installations. (6) When those laws were insufficient, the Espionage Act was amended and expanded in 1950 in the wake of the Alger Hiss trial. The goal of Sections 793(d) and (e) was to address the problems created by the "Pumpkin Papers," so named because that is where Whittaker Chambers hid the classified State Department documents provided to him by Alger Hiss. (7) Modern technology created new problems, and so new laws were passed to prohibit surreptitious interception or disclosure of wire and electronic communications. (8)

Recently the confidentiality of covert agents was a central concern, and the government has spent significant time and money to discover who leaked the name of one CIA agent. (9) So critical was the anonymity of one covert operative that a federal judge sent a New York Times reporter, Judith Miller, to prison for months until she revealed the name of the senior White House official who disclosed the identity of Valerie Plame. (10) Of course, it is not just government secrets that require legal protection. The government recognizes that business secrets must be protected and has passed criminal statutes addressing the theft of trade secrets. (11) The government recognizes that disclosure of certain information constitutes a fundamental infringement of civil liberties, and takes drastic measures to prohibit it. The government prohibits disclosure of the names of rape victims, the surreptitious filming of a college roommate having sex, or the publication of social security numbers. It imposes prior restraints on the free speech of attorneys--so-called gag orders--if that speech will compromise a fair trial. (12) In short, we create criminal penalties for prosecutors and civil remedies for private citizens if basic civil liberties are infringed by speech.


In balancing First Amendment concerns, the answer has never been that information should always be free. The answer has always been that we...

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