TABLE OF CONTENTS INTRODUCTION I. THE CURRENT STATE OF THE CRIMINAL LAW A. Treason B. The Espionage Act 1. Sections 793 and 794 a. Section 793 b. Section 794 2. Using Culpability Requirements to Limit the Scope of "Information Relating to National Defense" C. Other Relevant Statutes 1. Specific Categories of Information 2. Espionage-Related Statutes D. Lessons from Congress and the Courts II. THE FIRST AMENDMENT AND INTENT A. The Court's National Security Cases 1. Government Outsiders and Intent 2. Government Insiders and Intent B. The Role of Intent Generally III. OBJECTIONS TO IMPOSING AN INTENT STANDARD CONCLUSION INTRODUCTION
In the public discourse, the perceived intent of those who disclose national security information without authorization plays an important role in whether they are labeled as heroes or traitors. (1) Should it matter whether Chelsea (formerly Bradley) Manning leaked government information to WikiLeaks knowing that our enemies might benefit from the information? Is it relevant that Edward Snowden believed--or that a reasonable person would believe--that the top-secret government surveillance programs he revealed were illegal, or that the public value in knowing about these programs outweighed any risk of harm to national security? This Article examines whether intent--and what kind of intent--should matter in defining crimes related to the disclosure of national security information and concludes that it should, both as a matter of public policy and as a matter of constitutional law.
Although strict liability for the unauthorized collection and dissemination of all defense-related information might be the safest way to protect our nation's security, (2) such an approach would be inconsistent with our basic commitment to an informed democracy. The difficulty is in balancing the competing interests at stake. Incorporating mens rea requirements is a potentially useful way to strike the appropriate balance. Indeed, mens rea requirements are used throughout criminal law to differentiate among actors based on their moral blameworthiness and already play a very important role in defining and limiting criminal liability in this area. The current statutory regime--as convoluted and confusing as it is--treats the transmission of national security information with the intent to aid the enemy or a foreign government much more severely than other types of unauthorized disclosures. (3) As the U.S. Supreme Court has explicitly recognized, "innocence of intention will defeat a charge even of treason." (4) Disclosures made with "bad" intent--for example, to aid one of our enemies or to harm the United States--are entitled to greater moral condemnation and punishment. (5)
It is less clear whether the First Amendment requires any consideration of intent when determining which disclosures of national security information can be punished. Surprisingly, the role of intent in the Court's First Amendment jurisprudence has received little scholarly attention. (6) Even less explored is the more specific question of the role of intent with respect to First Amendment protection for the disclosure and publication of national security information. (7) Although many scholars have suggested that intent should play a role in the badly needed revision of the Espionage Act and related statutes, the literature lacks a vigorous study of why intent should matter, what the relevant intent requirements should be, and whether any of these requirements are constitutionally required. (8) This Article focuses on these questions.
Part I surveys the current role of intent in the notoriously convoluted Espionage Act and related statutes. This overview of Congress's struggle to protect the freedom of speech while punishing spies and others who harm our national security interests is useful on several levels. These statutes as well as their legislative histories demonstrate that the idea of using intent standards to distinguish between speech that should be protected and speech deserving of punishment is hardly a new idea. As with many other federal statutes, however, Congress's use of intent standards in the existing statutory framework is clumsy and vague. As a result, courts interpreting these laws disagree about what level of culpability is required. Furthermore, these statutes illustrate the common problem of using intent standards to draw distinctions among acts that may cause similar harms. (9) At the same time, however, Congress's persistentuse of intent requirements to determine which disclosures are criminalized and which ones are not is instructive, offering useful lines of inquiry regarding how mens rea requirements could be used in this context.
Part II examines the often controversial role of intent in the U.S. Supreme Court's First Amendment jurisprudence and concludes that even if Congress declines to incorporate intent into the statutory framework for national security information disclosures, such intent standards may be constitutionally required. Mens rea standards are an extraordinarily useful means of distinguishing between espionage, which can be said to serve no constructive purpose, and leaks, which often make meaningful contributions to public debate. In addition, intent standards can be used not just as a means of demarking protected speech and unprotected speech but also as way of determining the severity of the crime. Furthermore, culpability standards offer a particularly promising means of dealing with the problem of "dual use" speech, which is speech that can be either helpful or harmful. The unauthorized disclosures of national security information fall within this category because they can both make a meaningful contribution to the public debate and threaten our national security.
Part III addresses the likely objections to the use of intent standards to draw distinctions between protected and unprotected disclosures. Among other things, this portion of the Article explains that in determining a speaker's intent, courts are not required to accept a defendant's potentially self-serving explanations for his speech, but instead can consider a variety of contextual clues to determine the legitimacy of those assertions.
Before I begin, a few caveats are in order. This Article rests on a number of background assumptions that some readers might regard as controversial. To begin, this Article takes it as a given that the overclassification of national security information is rampant, and as a result the classification status of a document should not be absolutely determinative regarding the value of the information or the need for secrecy. As Judge Skelly Wright said in his dissent from the D.C. Circuit's decision to grant the government's request for a prior restraint in United States v. Washington Post Co., "To allow a government to suppress free speech simply through a system of bureaucratic classification would sell our heritage, far, far too cheaply." (10) Furthermore, this Article takes as a given that leaks of classified information are an essential part of our democracy. In some ways, the resulting "game of leaks" serves both the government, which uses leaks to control the flow of information for its own purposes, and the press, which may benefit financially and otherwise from its ability to expose and decipher national security secrets. In my prior work, (11) have explored the various problems with the classification system, the lack of effective whistleblower protections for national security employees, the symbiotic relationship between the press and the executive branch, and the role of leaks as an effective check on the political branches; I do not set out to prove them all here again.
Similarly, this Article does not address arguments that government insiders who reveal national security information are engaging in "conduct" and not "speech" (as the government has argued in litigation); that government employees have waived their First Amendment rights by signing contracts agreeing not to reveal classified information; or that government insiders have no First Amendment right to reveal information they obtained during the course of their employment. All of these arguments are important to address, but because I have addressed them elsewhere, (12) I will not repeat my analysis here.
Some readers may question the value of this project given that the law may very well play a small role in decisions about what information is kept secret and what information is disclosed and published. Although traditional journalists frequently claim that their publication decisions are based on a determination of the information's public value, as well as the potential harm that the disclosure of the information might cause, the law does not expressly acknowledge the value of the information to the public. (13) The government likewise has never prosecuted a news organization for disclosing national security information. (14) The decision not to prosecute may have little to do with the applicable standard the government would have to satisfy and more to do with an evaluation of other issues, like concerns about graymail (15) and public resistance to prosecutions.
Nevertheless, we must keep in mind the culture of secrecy and loyalty that is pervasive in the national security infrastructure in this country. Leakers face not only the risk that the First Amendment will not in fact protect their disclosures, even under the approach this Article suggests, but also a whole host of personal and professional incentives not to leak. Furthermore, recent revelations regarding the government's...