From Vacuity to Wikileaks

When an academic claims that a law is too vague, you know you must be dealing with the legal equivalent of London Fog. American University law professor Stephen I. Vladeck told the U. S. House Judiciary Committee late last year that the Espionage Act fits that bill.

“Whatever one’s views of WikiLeaks as an organization, of Julian Assange as an individual, or of public disclosures of classified information more generally, recent events have driven home Lapham’s central critique—that the uncertainty surrounding this 93-year-old statute benefits no one, and leaves too many questions unanswered about who may be held liable, and under what circumstances, for what types of conduct,” Vladeck told committee members on December 16, 2010.

Vladeck noted that this was not the first time a congressional committee heard such a complaint and quoted from a witness who made the same allegations more than 30 years ago. “On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations,” Anthony Lapham—then the General Counsel of the CIA—said in testimony before the U. S. House Permanent Select Committee on Intelligence in 1979.

Vladeck urged lawmakers to:

1.      “Introduce a clear and precise specific intent requirement that constrains the scope of the Espionage Act to cases where the defendant specifically intends the disclosure to cause harm to the national security of the United States and/or to benefit a foreign power.”

2.      “Create a separate, lesser offense for unauthorized disclosure and retention of classified information, and specifically provide either that such a prohibition covers or does not cover the public re-distribution of such information, including by the press.”

3.      “Include in both the Espionage Act and any new unauthorized disclosure statute an express exemption for any disclosure that is covered by an applicable federal whistleblower statute.”

Malcolm A. Kline is the Executive Director of Accuracy in Academia.

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