FITZGERALD ON LEAKS AND THE ESPIONAGE ACT - FAS, November 1, 2005

The section of the Espionage Act that prohibits the unauthorized disclosure of national defense information is "a difficult statute to interpret," said Special Prosecutor Patrick Fitzgerald.  "It's... a statute you ought to carefully apply."

Mr. Fitzgerald, who announced the indictment of Vice Presidential chief of staff I. Lewis "Scooter" Libby on perjury and other charges last week, acknowledged widespread concerns about using the Espionage Act to punish leaks to the media of classified information, such as the identity of CIA officer Valerie Plame.

"I think there are people out there who would argue that you would never use that [i.e. the Espionage Act] to prosecute the transmission of classified information because they think that would convert that statute into what is in England, the Official Secrets Act."

"I don't buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you pick the right case to charge that statute," Mr. Fitzgerald said at his October 28 press briefing on the Libby indictment.

Although the Espionage Act has not been invoked in Fitzgerald's ongoing investigation, using it to punish leaks remains a live issue in the prosecution of two former officials of the American Israel Public Affairs Committee for allegedly mishandling classified information.  (See Secrecy News, 10/19/05).

The potential use of the Espionage Act to punish leakers was addressed lately by Morton Halperin, myself and Larry Johnson in "Complexity of Prosecuting Leakers Stirs Concern" by Larry Abramson, NPR Morning Edition, October 28:
http://www.npr.org/templates/story/story.php?storyId=4979174