Leaks Are Not Espionage

Samuel Loring Morison, the former Navy intelligence analyst whose espionage conviction was just upheld by the U.S. 4th Circuit Court of Appeals, may not be the most appealing petitioner when he takes his case to the Supreme Court. A trial court found that Morison was motivated by money and ambition when he sold three satellite photographs of the Soviet Union’s first nuclear-powered aircraft carrier to Jane’s Defence Weekly, the British military journal, in 1984. Morison, who had worked for Jane’s Fighting Ships, the weekly’s sister publication, in his spare time, hoped to ingratiate himself with its publishers and land a new job with them.

And yet, no matter how unsympathetic Morison may seem, what he did is only slightly crasser than what officials in Washington do every day. From the White House on down, officials leak government secrets to the press for a variety of reasons--to promote their pet projects, to sabotage a rival’s schemes, sometimes to expose waste and corruption in government. Not even classified documents are considered sacrosanct; the memoirs of ex-Presidents and Cabinet officers are littered with quotations from such papers.

What sets Morison apart is that he is the first person ever convicted of espionage for leaking to the press. And although some may find his conduct reprehensible--he initially lied about supplying the photos to Jane’s, and only later said he had peddled them to expose the Soviet buildup--it is by no means espionage.

His prosecution by the Reagan Administration represented an entirely novel interpretation of the Espionage Act of 1917, which, as former Justice Tom Clark once explained, was meant to apply only to spies and saboteurs whose acts imperiled national security or aided the enemies of the United States. On its face, however, the act itself does not require proof of any harm to national security and cries out for reform.

But the appeals court brushed aside arguments, posed by Morison and by prominent news organizations that took his side, that the law was unconstitutionally vague and was intended to cover only “classic spying.” The trial judge had construed the statute narrowly, the appeals court said, by instructing the jury to convict Morison only if the photos were “potentially damaging to the United States”; the jury apparently accepted the prosecution’s argument that the photos might add somehow to Soviet knowledge of American spy-satellite capabilities.

That contention is almost laughable; the Soviets have indeed learned about U.S. reconnaissance satellites, but from a real spy who in 1978 sold them a manual on the system, not from Morison. Morison may have violated the secrecy agreement he signed when the Navy hired him, but he is not a spy. If the Supreme Court upholds his conviction and the Administration’s theory of the Espionage Act, the danger is that it will establish a precedent that will make both government officials and journalists vulnerable to prosecution for acts that are now considered part of the newsgathering process. That is not what Congress intended.