Morison, an intelligence analyst, had sent the British magazine Jane’s Defence Weekly copies of satellite photos that showed a new type of aircraft carrier that the Soviets were building at a Ukrainian shipyard. In 1984, he was arrested and convicted under the Espionage Act. He appealed the conviction to the Fourth Circuit Court of Appeals, arguing that the Espionage Act should not apply to someone who leaked to the press, rather than to a foreign government.

The Fourth Circuit rejected that argument in an opinion that laid the legal foundation for the modern use of the Espionage Act against news organizations’ sources. Morison then appealed to the Supreme Court, but the Court declined to hear the case. (Though he was later pardoned by President Clinton, the case law is still cited to this day).

Goodale, who represented the Times in the Pentagon Papers case, believes that the Fourth Circuit's interpretation of the Espionage Act was wrong. In an interview, he said that the courts need to recognize a distinction between between providing classified information to a foreign government (espionage) and providing classified information to a journalist (not espionage).

“What is confusing to some people, such as President Obama, is that when a source leaks to a reporter, it looks like espionage,” he said. “But it’s not espionage. … When a source leaks to a reporter or a publisher, that’s not espionage. In order to have espionage, you’ve got to have a foreign government [to] which you are communicating information.”

Since the Morison decision, though, the courts have sided with the government's broad interpretation of the Espionage Act as criminalizing all disclosures of classified information, no matter the recipient.

In 2005, nearly two decades after the Morison decision, the George W. Bush administration revived the use of the Espionage Act when the Justice Department accused Lawrence Franklin, a Department of Defense employee, of leaking classified information about U.S. policy toward Iran to two lobbyists for the American Israel Public Affairs Committee, who then allegedly passed some of the information on to the Israeli government. Franklin never gave the lobbyists any classified documents; he and the lobbyists just verbally discussed information that the government deemed classified.



Both Franklin and the AIPAC lobbyists were arrested and charged under the Espionage Act. Franklin eventually pleaded guilty and was sentenced to more than 12 years in prison, though this was later reduced to 10 months of house arrest, in part because he agreed to cooperate with the government's case against the two lobbyists.

The AIPAC case was the first (and so far only) instance in which Espionage Act charges were brought against someone who had never worked for the government or had a security clearance. It alarmed press freedom groups at the time, given the fact that any Espionage Act precedent involving private citizens could eventually be applied to the press.

The lobbyists argued that the application of the Espionage Act in their case violated the First Amendment rights, since they were not government employees who had agreed to keep the information secret. The federal judge overseeing the case rejected this argument. However, the judge also ruled that the prosecution would have to prove that the lobbyists had intended to harm the national security of the U.S. in order to win the case. To the great relief of media lawyers, the prosecution dropped the case against the lobbyists.

In retrospect, the Franklin and AIPAC cases were the start of a new era of aggressive use the Espionage Act in cases that affected journalists. In December 2005, the Times reported that the NSA had secretly wiretapped millions of Americans’ phone calls without warrants. In response, the Department of Justice launched a criminal investigation — not into the NSA’s warrantless wiretapping program, which it had secretly approved, but into how the Times found out about it. The Justice Department reportedly assigned five prosecutors and 25 FBI agents to the investigation into the Times’ sources.

In May 2006, in the midst of that investigation, Attorney General Alberto Gonzales suggested that the Department of Justice could prosecute Times reporters under the Espionage Act for reporting on the classified NSA program.

“There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility,” he told ABC News.

While the Justice Department never followed through on their threat, the investigation ended up ensnaring multiple alleged whistleblowers.

In December 2008, former Justice Department attorney Thomas Tamm publicly admitted that he had been a source for the 2005 Times article. The next month, President Barack Obama — who had harshly criticized the NSA’s warrantless wiretapping program on the campaign trail — took office. Obama’s Department of Justice opted not to prosecute Tamm under the Espionage Act.

But Tamm was the exception. Under the Obama administration, the Department of Justice began its current practice of aggressively using the Espionage Act against whistleblowers and leakers who talked to journalists.