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In a definitive 1973 analysis of the Espionage Act for the Columbia Law Review, U.S. Constitution experts Harold Edgar and Benno Schmidt said that language poses “the greatest threat to the acquisition and publication of defense information by reporters and newspapers.”
“If these statutes mean what they seem to say and are constitutional,” they wrote, “public speech in this country since World War II has been rife with criminality.”
Nevertheless, despite its vagueness and reputation among constitutional lawyers as unenforceable, successive administrations at times have considered 793(e) as a tool to prevent leaks. But public officials have been divided on the question of whether it is an appropriate application of the law.
John Ashcroft, the attorney general under President George W. Bush, cited the statute as one he was prepared to use to stop leaks in testimony he was set to deliver before a congressional committee days before Sept. 11, 2001. The testimony was delayed and ultimately never happened.
Patrick Fitzgerald, the prosecutor who successfully convicted vice presidential aid Lewis “Scooter” Libby on perjury charges, said at the time of Libby’s indictment in 2005 that he contemplated using the Espionage Act but ultimately decided against it. He said the law’s broad application might not be appropriate in an American context.
Two cases in which the government successfully invoked 793(e) involved actual documents and not just oral exchanges. In both cases, the accused were government employees charged under additional separate statutes targeting leaking and espionage.
One of the major problems with the statute identified by Edgar and Schmidt would emerge in the government’s 2005-09 case against Steve Rosen and Keith Weissman, the former AIPAC lobbyists: What does it mean to willfully retain unauthorized information?