Lieberman wants the Senate to draft legislation that will lower the threshold for espionage prosecutions in the future. It wouldn't be the first time Congress has tried. A decade ago, Congress passed a bill that would have done just that, only to have President Clinton veto it just weeks before leaving office. That bill would have put America on footing similar to that of many other countries, including some other democracies. In the United Kingdom, New Zealand, Ireland and many other nations, publication of classified information is a crime simply because the material was secret. But not in this country. "There is no Official Secrets Act" here, Abrams points out.
The only real ammunition America has to protect state secrets, most legal observers agree, is the Espionage Act of 1917, signed into law by President Woodrow Wilson amid fears of domestic unrest and possible sabotage as American entered the First World War. It's a broadly worded act, still on the books, that on its face would make stealing or sharing secrets from the government a federal crime — if a jury agreed that doing so harmed America or aided a foreign power. But Abrams said courts soon recognized that such a broadly worded statute could "make illegal many things that American newspapers publish every day. It was over-broad and covered much too much material." As a result, the Supreme Court spent most of the 20th Century steadily narrowing the Espionage Act's reach when it comes to the news media's publication of secrets.
Some of the most famous cases from those years have almost eerie parallels to the current furor. In 1971, the Nixon Administration tried to stop the New York Times and Washington Post from running reports based on a highly classified secret history of the ongoing Vietnam War. The Supreme Court stopped the government in a 6-3 ruling in favor of the press. The so-called Pentagon Papers opinion was unsigned, and every justice wrote a separate opinion. In a widely cited concurrence, Justice Potter Stewart wrote that he agreed that publication of the secrets during an active war in Vietnam was damaging the U.S. But that wasn't enough, he concluded. "We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable harm to our Nation, or its people."
