United States v. Rosen
445 F. Supp. 2d 602, 2006 U.S. Dist. LEXIS 56443, 2006 WL 2345914 (2006)
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Rule of Law:
The Espionage Act, 18 U.S.C. § 793, is not unconstitutionally vague or an impermissible infringement on First Amendment rights when applied to non-government employees who orally receive and transmit national defense information. To secure a conviction, the government must prove the information was closely held, its disclosure could potentially harm U.S. national security, and the defendant acted willfully and with a bad-faith purpose.
Facts:
- Steven Rosen and Keith Weissman worked as lobbyists for the American Israel Public Affairs Committee (AIPAC) and neither held a security clearance during the period of the alleged conspiracy.
- The men cultivated relationships with U.S. government officials, including Lawrence Franklin, a Department of Defense (DOD) employee with a top-secret security clearance.
- Beginning in April 1999, Rosen and Weissman obtained sensitive and classified U.S. government information from their sources, including information described as "codeword protected intelligence" and a "secret FBI, classified FBI report."
- They transmitted this information to persons not entitled to receive it, including members of the media, foreign policy analysts, and officials of a foreign government.
- In February 2003, Franklin disclosed information to Rosen and Weissman from a classified draft internal U.S. government policy document.
- On March 17, 2003, Franklin faxed a document containing information derived from the classified policy document to Rosen's office fax machine.
- In June 2003, Franklin disclosed highly classified information to Rosen and Weissman about potential attacks on United States forces in Iraq, asking them not to use it.
- After Franklin began cooperating with the FBI, he met with Weissman in July 2004 and provided him with classified national defense information, which Weissman then shared with Rosen and others.
Procedural Posture:
- The United States government charged Steven Rosen and Keith Weissman in a superseding indictment filed in the U.S. District Court for the Eastern District of Virginia (the trial court).
- Count I of the indictment charged both defendants with conspiracy to unlawfully communicate national defense information, in violation of 18 U.S.C. § 793(g).
- Count III charged defendant Rosen with aiding and abetting the unlawful communication of national defense information by a government employee, in violation of 18 U.S.C. §§ 793(d) and 2.
- The defendants filed a pretrial motion to dismiss Count I, arguing that § 793 is unconstitutionally vague under the Fifth Amendment and violates their First Amendment rights.
- Defendant Rosen filed a separate pretrial motion to dismiss Count III on grounds that the facts alleged were legally insufficient.
- The District Court considered these motions before the commencement of a trial.
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Issue:
Does the Espionage Act, 18 U.S.C. § 793, violate the Fifth Amendment's Due Process Clause for vagueness or the First Amendment's guarantees of free speech and the right to petition when applied to non-government employees who solicit, obtain, and orally transmit national defense information to unauthorized persons?
Opinions:
Majority - Ellis, District Judge
No. The Espionage Act, 18 U.S.C. § 793, does not violate the First or Fifth Amendments as applied to the defendants. The court denied the defendants' motions to dismiss, finding the statute constitutional when properly construed. First, the court rejected the statutory argument that 'information' only applies to tangible items, holding that its plain meaning and legislative history encompass oral communications. Second, the court held the statute is not unconstitutionally vague under the Fifth Amendment. Judicial gloss has clarified that 'information relating to the national defense' is limited to information that is (1) closely held by the government and (2) potentially damaging to national security if disclosed. The phrase 'not entitled to receive' is clarified by the executive branch's classification system. Any remaining ambiguity is cured by the statute's high scienter requirements: the government must prove the defendant acted 'willfully' (with a bad purpose to disobey the law) and, for intangible information, with 'reason to believe' the disclosure could be used to injure the U.S. or aid a foreign nation, which constitutes a bad-faith requirement. Third, the court found the statute survives First Amendment scrutiny. While the defendants' lobbying activities implicate core First Amendment rights, those rights are not absolute and must be balanced against the government's compelling interest in national security. The statute is narrowly tailored by the judicial glosses and scienter requirements to punish only the disclosure of genuinely sensitive information that threatens national security, not leaks that merely embarrass officials. The court also denied Rosen's motion to dismiss the aiding and abetting count, ruling that challenges to the sufficiency of the evidence are for a jury to decide.
Analysis:
This decision is significant as one of the first judicial opinions to hold that the Espionage Act can be constitutionally applied to individuals outside the government, such as lobbyists or journalists, who receive and further disseminate national defense information. By affirming the statute's application to 're-transmitters' and not just the initial government leaker, the ruling created a new front in the legal battles over government secrecy and freedom of the press. The court's detailed construction of the statute's elements—requiring proof that information is closely held, potentially damaging, and transmitted willfully with bad faith—establishes a high prosecutorial bar intended to protect legitimate public discourse. Nevertheless, the decision has been criticized for potentially chilling the flow of information from government sources to the public, a practice vital to government accountability.
