n appeals district court has ruled that receiving and passing on classified information is a prosecutable offense.
In a momentous expansion of the government’s authority to regulate public disclosure of national security information, a federal court ruled that even private citizens who do not hold security clearances can be prosecuted for unauthorized receipt and disclosure of classified information.
The ruling (pdf) by Judge T.S. Ellis, III, denied a motion to dismiss the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who were charged under the Espionage Act with illegally receiving and transmitting classified information.
The decision is a major interpretation of the Espionage Act with implications that extend far beyond this particular case.
The Judge ruled that any First Amendment concerns regarding freedom of speech involving national defense information can be superseded by national security considerations.
It will shock me if this decision does not end up before the Supreme Court, for the simple reason that this is one of those rare decisions that fundamentally alters how America operates as a country. In the short term this means that investigative reporters like James Risen may now face prosecution for doing their job. Put that together with our government’s mania for overclassification and you have a decision that essentially nullifies the press as a useful check on government power.
The authoritarian Malkinites and LGFers and readers of Glenn Reynolds will of course celebrate. Any check on government power is too much for this new brand of “conservatism.” A minority party is a baleful enemy (of freedom!) that must be destroyed, the courts represent an out-of-control body of black-robed activists and individual critics should probably be shot for the traitors that they are. These are not exaggerations or Drum’s Rule violations but actual opinions by large numbers of high-traffic bloggers and television personalities. A child can see the authoritarian logic that would make true conservatives spin in their graves, or at least cry into their sparkling cider.
Amazingly, the people who will cheer on the trials that end investigative journalism (cries for which have already become deafening) show a poor grasp of basic market principles. Companies have independent boards and auditors for the simple reason that management that operates in total secrecy does its job poorly. Our government works the same way. Think about why the most embarrassing shows of incompetence that our country has seen – managing the Iraq occupation and FEMA’s meltdown in New Orleans – came from the most reflexively-secret branches of the US government, DoD and Homeland Security. Secrecy kills accountability and breeds incompetence.
I appreciate how galling it can be to imagine the enemies of freedom throwing a wine-tasting party when some leaker reveals that the vice president steals cable. The decision won’t be easy for everybody. But if you care about getting served by a government that operates slightly above the level of a Rummy or a Brownie then folks need to swallow a bitter pill and let the sunlight in.