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Daniel Ellsberg and the Espionage Act

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Daniel Ellsberg is drawing attention to a classified Pentagon study he published on his website abut plans drawn up under the Eisenhower administration to nuke China in the hope that he will be arrested and be a test case to challenge the constitutionality of the Espionage Act:

Mr. Ellsberg said he also had another reason for highlighting his exposure of that material. Now 90, he said he wanted to take on the risk of becoming a defendant in a test case challenging the Justice Department’s growing practice of using the Espionage Act to prosecute officials who leak information.

Enacted during World War I, the Espionage Act makes it a crime to retain or disclose, without authorization, defense-related information that could harm the United States or aid a foreign adversary. Its wording covers everyone — not only spies — and it does not allow defendants to urge juries to acquit on the basis that disclosures were in the public interest.

Using the Espionage Act to prosecute leakers was once rare. Mr. Ellsberg himself was charged under it, before a judge threw out the charges in 1973 because of government misconduct. The first successful such conviction was in 1985. But it has now become routine for the Justice Department to bring such charges.

Most of the time, defendants strike plea deals to avoid long sentences, so there is no appeal. The Supreme Court has not confronted questions about whether the law’s wording or application trammels First Amendment rights.

Saying the Justice Department should charge him for his open admission that he disclosed the classified study about the Taiwan crisis without authorization, Mr. Ellsberg said he would handle his defense in a way that would tee the First Amendment issues up for the Supreme Court.

This obviously isn’t a great context in which to make a First Amendment defense; I would surprised (although not absolutely shocked) to see the current Court issue an opinion striking down or even substantially limiting the reach of the relevant provisions of the Espionage Act. But litigating a decades-old study with no current partisan valence is probably the best shot for a favorable ruling, so we’ll see how this plays out.

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