Andrew Croner · April 2009
77 GEO. WASH. L. REV. 766 (2009)
The Foreign Intelligence Surveillance Act (“FISA”) establishes the statutory framework for foreign intelligence operations involving electronic surveillance. It requires that NSA secure warrants based on probable cause prior to conducting electronic surveillance that targets the communications of any United States citizen located in the United States. In an effort to track terrorists following the 9/11 attacks, however, President Bush signed an order authorizing NSA to intercept the international telephone calls and emails of hundreds of United States citizens located within the United States without a warrant. The Bush Administration argued that the program was necessary to allow NSA to move quickly to monitor communications that could uncover impending terrorist threats, contending that the program had in fact helped to preemptively uncover plots by Al-Qaeda to harm the United States.
Notwithstanding the justifications advanced by the Bush Administration, the disclosure of the program resulted in significant public outcry from civil libertarian groups and political adversaries of the Bush Administration. Perhaps anticipating such backlash, the Bush Administration had previously pleaded with the New York Times to refrain from publishing the article, arguing that doing so could “jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny.”
Though it would seem that any governmental interest in maintaining the secrecy of the wiretapping program was compromised once the Times chose to publish the article, some commentators have supported prosecuting the Times under § 798 of the Espionage Act in the wake of the disclosure. Section 798 is a seldom-used penal statute that authorizes the imposition of criminal sanctions on those that publish classified information related to the “communication intelligence activities” of the United States.
The purpose of this Note is to evaluate the plausibility of the course advocated by these commentators in light of the constitutional scrutiny placed on regulations limiting the freedom of the press. This Note argues that prosecution of the press under § 798 would be facially unconstitutional because the statute is substantially overbroad in impairing protected speech in violation of the First Amendment. In addition, it discusses other aspects of § 798 that, although not fatal to its application to the press, are at least constitutionally problematic. Finally, while conceding that a saving construction of § 798 could probably be fashioned to avoid judicial invalidation, this Note concludes by arguing that invalidation of the statute is a more appropriate action given the marked changes in U.S. intelligence operations since § 798’s enactment and the novelty of prosecuting the press under a criminal statute.
Part I of this Note briefly introduces § 798 and explains why the text of the statute makes it ripe for use in a prosecution against the press. Following this introduction, Part II focuses on recounting the history of § 798, beginning with the events influencing its enactment and then proceeding to other occasions where the idea of utilizing § 798 against the press has surfaced. Part III begins a constitutional analysis of § 798 by examining Supreme Court doctrine in the areas of First Amendment press rights and national security to predict whether the Court would generally find a prosecution of the press under § 798 permissible. Part IV continues this constitutional analysis by focusing more specifically on the text of § 798 through use of the vagueness and overbreadth doctrines. Finally, Part V concludes with a discussion of how the Supreme Court should address the constitutional infirmities of § 798 in the event that a government prosecution of the press under its terms reaches the Court for review.
