31.07.13 |

As a progressive, I’m delighted that Bradley Manning was acquitted of aiding the enemy but horrified that he was convicted of espionage. Ethically, Manning is a hero, not a spy. As a law professor, though, I think it’s critically important to get the law right — and unfortunately, many commentators are simply misstating what the Espionage Act says and how courts have interpreted it. Consider the following claim by Elias Groll at FP.com (emphasis mine):

In past cases in which the government pressed espionage charges against members of the intelligence community who provided classified information to the media, the government had to prove “bad faith” — that the accused intended to harm U.S. interests. If there was ever to be a legal reprieve for men like Manning and Snowden, it lay in the “bad faith” provision and the argument that these whistleblowers had in fact acted in the best interests of the nation. But that provision has been jettisoned in more recent rulings, a precedent continued by Lind.

Groll misunderstands what courts mean by “bad faith” in the context of an espionage prosecution — which is probably why he neither links to nor cites a past case that equated “bad faith” with the intent to harm the US. The key decision is Gorin v. United States, 312 US 19 (1941), in which the petitioners argued that the “connected with the national defense” requirement in what is now 18 USC 793(a) was unconstitutionally vague. The Supreme Court rejected that argument, holding that any potential vagueness was cured by the mens rea requirement in the Espionage Act, which required the defendant to act with bad faith (emphasis mine):

But we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring “intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.” This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established. Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood, be no reasonable intent to give an advantage to a foreign government.

Notice: the Gorin Court did not limit “bad faith” to obtaining national-defense information with the “intent” to injure the United States; it also considered bad faith obtaining national-defense information while having “reason to believe” that the information could be used to injure the US. Those are very different mental states.

Nor is Gorin an outlier. No court in the 70 years since the Supreme Court’s decision has held that the Espionage Act requires the defendant to obtain (or receive, or transmit, etc.) national-defense information with the intent to injure the US. And that is not surprising: all of the various subsections of 19 USC 793 make clear that is enough for a defendant to have “reason to believe” information could be used to injure the US. That much more easily satisfied mens rea requirement appears in 793(a), 793(b) (“with like intent”), 793(d), and 793(e). It does not appear in 793(c) — but only because that provision, which deals with receiving or retaining information “connected with the national defense,” does not require even potential injury to the US.

Again, I think it is terrible that Manning has been convicted of espionage. I think it would equally terrible if Edward Snowden was ever convicted of it. But courts have not suddenly stopped requiring espionage defendants to intend to injure the US. That intent has not been required since at least 1941.