This Los Angeles Times article quotes some reactions to Wednesday's ruling that individuals who receive and retransmit classified national security information may be prosecuted under the Espionage Act.
"It's a momentous ruling with radical implications," said Steven Aftergood, who heads the Project on Government Secrecy for the Federation of American Scientists. "A lot of people who are in the business of gathering information, such as reporters and advocates, are now going to have to grapple with the potential threat of prosecution. The dividing line has always been between leakers, who may be prosecuted, and the recipients of the leak, who have never been. Now that dividing line has been erased." . . .
Prosecutors have said that for the espionage law to be invoked, an individual possessing secret information must intend to cause harm to America. But they have not ruled out the possibility of charging journalists.
Some legal experts are skeptical of the judge's reasoning that safeguards are sufficient to prevent abusive prosecutions.
"It is predicated on an idea that the executive and judicial branches will operate with rectitude and only prosecute cases where there is a genuine risk of harming national security" rather than political considerations, said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "It presumes a degree of honest government that, sadly, does not always exist."
Aftergood and Kirtley said they knew of no other case where the United States was seeking criminal charges against someone other than a government employee who clearly violated a nondisclosure agreement.
The story also notes that there is a federal grand jury looking into the leaks relating to NSA surveillance activities reported in the press. Howard Bashman rounds up more press coverage here.
All Related Posts (on one page) | Some Related Posts:
- Perspectives on Prosecuting the Press:
- A Troubling Prosecution:
- WSJ on Espionage Act Case:...
- Espionage Act Prosecution Updates:
- Reactions to Espionage Act Ruling:
- Gov't May Prosecute Recipients of Leaked Information:...
- Why Publish Government Secrets?
- Will Justice Prosecute Journalists?
- Prosecuting the Press:
The American people are fed up with legalistic arguments trying to defend our enemies. If the media wants to get on board with American-Islamic Fascism Jihad, they need to be prepared to suffer the consequences.
1. I would surmise that the idea of "intent" to harm America, may be under periodic refinement by the current party in power.
2. Current rhetoric by media on the right would have one believe that the media on the left, currently has that intent.
(Oddly enough I agree with that rhetoric, but that's just me.)
The specific intent requirements are among the elements of the statutory offense charged. They were not imposed by the Judge.
And that line is still there because there is nothing in the court’s ruling that says you can be prosecuted for merely receiving leaked information. To be prosecuted you have to know that (a) it was leaked to you, (b) that further retransmission could harm the United States or aid our enemies, and then you have to (c) retransmit it. The crime is in retransmitting it not in receiving it.
This statement is frankly bizarre. Aren't ll laws are predicated on the presumption of an honest executive and/or judical branch? Should we get rid of bans on murder because those laws can be misused?
It seems that journalists have placed themselves in this netherworld in which they are all above the law. If so, spies and terrorists would be wise to get press credentials. (But I suspect that many spies and terrorists already have them.)
Sort of like the "privilege log" required in court cases.
If we are going to start putting folks in jail who do not have security clearances, we need to get a lot more strict about what gets classified, for how long, where, when, on whose approval, with what justification, and with what notice to the public.
The determined whistle blower will presumably now go to the the French press, once the NYT says we cannot take the Pentagon Papers (2d ed.). Publication by the NYT of the Pentagon Papers (2d ed.) looks like the lesser of two evils, compared to publication in the French papers.
I am not The Shadow. I do not know if the NY Times had an evil motive lurking in its heart when it blew the SWIFT program. And motive quite properly almost never counts in the law. If Aldrich Ames leaked the list of classified secret agents working behind the Iron Curtain and a newspaper here ran it, the secret agents would be just as dead as they were when Ames secretly conveyed it directly to the Soviets. I'd much rather the government not be a "motives" police and focus instead on our outward actions.
I hate it when some interested commentator says something like "the dividing line has always been between leakers... and the recipients of the leak", without being challenged by the reporter about the "has always been".
Not all. One law that comes to mind as providing protection against a dishonest government is the First Amendment. In the same vein, statutes that provide for transparent government.
The question isn't about whether we like journalists, nor whether we wish to give them "special" protections. More to the point, it isn't about whether journalists are "above the law." The issue is the law itself.
To what extent should a government whose legitimacy depends upon electoral accountability be transparent? THAT is the issue at hand. Not whether we enjoy reading the New York Times or Washington Post.
Nor did it say "retransmission" was a critical element: possession of such info, while knowing that it was classified and improperly obtained, is also adequate grounds for prosecution.
Damn activist legislators! [/sarcasm]
Take this hypothetical: The US launches a new assault in Fallujah or wherever. All the US troops are killed because they were sent in on foot when the Humvees and whatever else broke down. The administration immediately decides to classify all information concerning the attack and deaths.
Under the current state of the law, (a) is there anything preventing the administration from broadly classifying such information, or (b) if the administration classifies it, is there any way for someone to let that information be known to the voting public?
Yes, the Constitution does indeed protect the press. However, the Constitution also gives the government the power to protect the power from threats. The former is part of an open government while the latter implies that the government can keep secrets and prosecute those that divulge them.
Kirtley seems to believe that the former trumps the latter. This is problematic for two reasons. First, it makes press credentials into a "get out of jail free card" for spies. Second, it places the decision about what "should be" a government secret in the hands of a reporter - rather than government and the people.
I don't know about (a). However, (b) seems to be simple. The information can be "illegally" obtained and released. The court system and the voters would ultimately determine if the perps should be punished.
However, the Constitution also gives the government the power to protect the public from threats.
Exactly, and that question in our society is to be decided by the people through their elected representives by rule of law, not on an ad-hoc basis by the press or anonymous leakers. There are procedures and protections set up by the law for whistleblowers can bring wrongdoing to the attention of prosecutors and congress. These procedures can determine when secrecy laws are being used to hide malfeasance, and when there is a real need for security. No one elected the NYT editors to make those decisions.
I think you're misreading the case.
There are two very similar requirements on harm.
The first is in order to be “information relating to the
national defense” it must be information the “disclosure [of which] would be potentially damaging to the United States or useful to an enemy of the United States.” (Citing United States v. Morison).
In addition, in order to criminalize the transmission of oral information, there is an [i]additional[/i] scienter element: "Thus, the statute, as-applied to these defendants also requires the government to prove that such information was communicated with “reason to believe it could be used to the injury of the United States or to the advantage of any
foreign nation.”" (Citing 18 U.S.C. §§ 793(d), (e)).
This also addresses your other misunderstanding about retransmission. Where, as in this case, the classified information was oral--there can only be liability for retransmitting the information, and not mere receipt and retention. As the Court said: "it is illogical to punish the retention of intangible information since a person cannot avoid remembering something he learned, thereby retaining it, nor can a person deliver their memory to one entitled to receive it, as the statute’s retention
clauses would seem to require."
I wasn't clear enough. If the administration unilaterally decides to classify the information about the failed raid and US casualties, is there any way that someone could legally release that information to the public, under the current state of the law?
U.S. Poll: Large Minority Fear, Mistrust Muslims
USA Today/Gallup poll:
Nearly four in 10 Americans admit having feelings of prejudice against Muslims living in the U.S. and are in favor of having Muslims carrying a special ID
22 percent of those surveyed said they would not like to have a Muslim as a neighbor.
31 percent of respondents said they would feel nervous if they noticed a Muslim man on their airplane flight
18 percent would feel nervous about a Muslim woman flying with them.
49 percent feel that Muslims living in the U.S. are loyal to this country.
34 percent believe American Muslims are sympathetic to the al-Qaida terrorist organization.
40 percent of respondents said they believe Muslims in the U.S. are not respectful of other religions
44 percent said Muslims are too extreme in their religious beliefs.
52 percent believe Muslims are not respectful of women.
39 percent said the U.S. should require Muslims to carry a special ID
57 percent believe Muslims should undergo more intensive security checks at airports.
39 percent said they "have at least some feelings of prejudice against Muslims
59 percent said they did not, and 2 percent had no opinion.
Opinions are different, however, among Americans who are personally acquainted with a Muslim, the poll disclosed.
For example:
10 percent of those who know a Muslim said they would not want one as a neighbor
24 percent believe Muslims should carry a special ID – compared to 50 percent among those who don’t know a Muslim.
Are these results MY fault? Are they the fault of other sites like Little Green Footballs or Jihad Watch?
I think it it’s the fault of C.A.I.R and the speeches, rallies and public statements NOT made that are the cause of the feelings shown in this poll. Personally I think the vast majority of Americans want to live well and harmoniously with their American moslem brothers its just that we never see the American moslem community trying to reach out to us. They didn’t attend that rally held in Washington specifically for them (you recall the one I am talking about...it was a flop). C.A.I.R. will say this poll shows Americans are bigots…BULL! It’s up to American Moslems to prove us wrong. We want you too, really.
What do you think? Please comment. @ my site, thanks
-Steve
No it wouldn't. The effect would be to reveal an awful lot of information that would, in itself, be classified.
Consider, eg, entries like
Of course, you could "sanitize" the entries, in which case you'd get
There are 23 members on the House Intelligence Committee, 15 members of the Senate Intelligence Committee, and 1 President. The US population is approximately 295,000,000. Assuming secrecy, these 295 million people will be subject to the policy decisions regarding liberty and security of these 39 people; but they will never learn of the trade-offs made, nor of the grounds upon which they are based. These 39 people will never be held responsible for major policy trade-offs that are made concerning security and liberty. This is problematic, for a democratic republic only dispenses trust upon accountable representatives. Secrecy is strikes at the very nerve of accountability; and it is therefore no shock that the First Amendment in our Bill of Rights devolves power from government to the people. (or "reporters", if you may.)
Out of curiosity, how is information in the hands of "the government and the people," when the information is kept secret from the people? By hypothesis, don't you mean that classified information simply remains in the hands of the government?
Perhaps there is virtual accountability through procedural safeguards. But, again, I submit that THIS is the issue we are discussing. A free press, even with respect to national security, operates as a procedural safeguard. Perhaps eliminating it might be a good idea, but don't pretend that it's just affecting the working lives of reporters. Not only is it a fundamental liberty, it a basic protection of the people against a secret workings of a powerful government.
First, nobody needed to elect the NYT editors. In fact, I would be uncomfortable at the idea that you need a position in government in order to old the position of editor. This is merely a rhetorical ploy. As heart, the issue is the devolution of power. And as you know, electoral accountability is not a necessary condition for holding power: nobody needs to be elected to government in order to hold property. We sort of enjoy devolved power here in the old US of A.
As far the whistleblower procedures: I am not intimately familiar with them. Yet, I am uncomfortable with the idea that the only protections we have against the exercise of secret government power is when an individual has engaged in malfeasance. For example: the secret prisons in Europe, in which we held an unknown number of persons for an unknown period of time, without any process, were presumably not an issue of malfeasance. They were, however, a major issue of both liberty and security. What type of process exists by which the American public can learn of this type of government action, and hold their representatives accountable? If you win the security versus liberty debate, and there remain secret prisons in which we hold unknown persons for an unknown period of time, fine. But absolute secrecy ensures that this debate will never take place; and of all the arguments you can use to underpin your conclusions, electoral accountability is not among them.
This is not really effective, and because there are lots of ways for liberty-pokers of Eugene or terrorists of GWB or even simple Chinese students to read what their gummint disapproves of, we real libertarians and freedom fighters will prevail.
Delete this Eugene, if you dare!
Well, the solution here is for leakers not to tell the reporter "oh and by the way, everything I'm telling you is classified."
Mnz said that the decision regarding classification should be in the hands of the people (via their elected representatives) not the information itself.
Nope. The people elect the government, and the people have and continue to support secrets held for the sake of government security. Thus, the people have basically voted that they don't need to know certain things.
Who is better to carry the wishes of the people in this matter? Elected officials or newspaper editors.
Perhaps there is virtual accountability through procedural safeguards. But, again, I submit that THIS is the issue we are discussing. A free press, even with respect to national security, operates as a procedural safeguard. Perhaps eliminating it might be a good idea, but don't pretend that it's just affecting the working lives of reporters. Not only is it a fundamental liberty, it a basic protection of the people against a secret workings of a powerful government.
There are more than procedural safeguards; there are electoral ones as well. Since the people elect the government, they can remove leaders that misuse their power (including the power to keep secrets).
Anyway, I think you and I might be less far apart on this issue than it might appear. I support a free press - the standard for conviction should be very high. However, I don't think that egregious and fraudulent abuses of the first amendment should go unpunished.
As I understand the ruling, Mr. Winston is correct, and I see nothing wrong with the result. If you retransmit classified information knowing that doing so will harm the United States or aid its enemies, isn't that a classic case of lending aid and comfort to the enemy? If we have become too "sophisticated" to consider treason a crime, we will not long endure.
In essence things are classified for a good reason in most cases and for these people just to ignore that and knowingly break the law by telling the info and receiving the info both really frosts me. I saw some good officers who lost their career for minor things at the time and these people are going far beyond what those officers did. I find it especially upsetting when someone who had the responsibility of enforcing the security regulations breaks them as Sandy Burger and the leakers did. To do that, especially in time of war, is really going way beyond the pale IMNSHO. I really hope that the cases are prosecuted and they serve all the time possible so that in the future the secrets of this country can remain secret from our enemies who are trying to destroy us. I also hate to see people try to pull a Bill Clinton trying to define what "is" is when it comes to matters dealing with national security. While they are parsing the words to get the last little bit of advantage, men and women are putting their lives on the line to protect the country and these guys seem to disregard that as if the military did not exist or was not important. We even had an administration where they forced the marines to serve in civilian clothes because the sight of uniforms upset the "royal" couple.
Now if an official (or several) classifies information about some misconduct or crime, but uses independent and sufficient criteria to justify the classification, how is the public to know about the misconduct, short of someone committing the crime of making that information public?
Is relying on ordinary citizens (including reporters) to risk criminal convictions to reveal official wrongdoing a sufficient check against corruption?
The problem I see with what you are asking is that there is a methodology of questioning classifications which involves things like inspectors general and heads of department and superior officers and congress critters and executive department employees where the information at issue is discussed by people who are cleared to do so. These people have bypassed all those means of questioning the classifications and just arbitrarily given the information to reporters and others who patently are not cleared to receive that information. That makes them guilty and the person who receives the information just as guilty. That is why I personally want these people prosecuted to the full extent of the law.
There are multiple reasons for there being a chain of command. One is that the information to be acted upon is passed down the chain so that all are working from the same page. Another is that if you cannot get satisfaction at a lower level, then there is a higher level to go to to get a problem resolved.
This second reason is what these people have ignored and done so at the peril of our country and our young men and women fighting in the war. The check against corruption is the chain of command all the way to the head of the department, then to the executive, then to Congress, then to the Courts and if all else fails maybe to the media. To short cut the whole thing by going straight to the media is illegal and should be prosecuted and for the media to then publish this information thereby endangering our troops in time of war is tantamount to commiting treason or close to it.
If I was a "bagman" who curried stolen CIA documents from a drop site to the Soviet embassy in 1970, wouldn't I be correct in hiding my activities? Wouldn't such people rightly fear prosecution? So instead... if I just publish it in a newspaper (as the method of getting it to the Soviets), I would be untouchable?
In addition, since when was it necessary to divine the mindset of such people? If I am giving stolen, classified documents to America's enemies, I can't be prosecuted until my intent can be divined? Wow.
It appears to say that if another country (any country, enemy or ally) benefits from the transmission, it is illegal.
This court did distinguish between oral transmission and the physical transferral of tangible intelligence. It did not find that oral transmission was somehow immune to prosecution, though retention of pure information presented difficult issues. The court also said, importantly, that the laws need updating.
This distinguishing is what I meant about the the defining what "is" is. The courts are getting so tied up in knots over these definitions that they seem to be losing the whole major picture of what the law is saying. Intelligence is either passed on or it is not. If it is and the recipient is entitled to receive it and has a need to know about it, then the passing on is valid. If the recipient is not entitled to receive it or has no need to know about it, then the passing on is invalid. What more does the court need to decide?
<i>Only in some of the referenced cases is the phrasing "benefit of enemies of the United States". The law itself reads "advantage of another country". While that may suggest that the benefit would accrue only to the detriment of the US, I don't believe that to be the plain reading of the text.
It appears to say that if another country (any country, enemy or ally) benefits from the transmission, it is illegal. </i>
</blockquote>
They are two seperate things. The Statute doesn't define "information relating to the national defense." Courts have imposed a requirement that something is only information relating to the national defense if its disclosure would be potentially damaging to the United States or useful to an <b><i>enemy</b></i> of the United States.
Seperate and apart from that requirement, the statute explicitly requires as an element reason to believe it could be used to the injury of the United States or to the advantage of <i><b>any foreign nation</i></b>.
If the information would not be damaging to the US, and would also not be useful to an enemy of the US, then you never get to the question of what the person believed—it's not information relating to the national defense.
<i>logicnazi</i>
The issue isn't whether the Defendant's specific intent was to provide advantage to another country (or harm to the US)—it's whether he had reason to believe it <i><b>could</b></i> be so used, if disclosed.
Is relying on ordinary citizens (including reporters) to risk criminal convictions to reveal official wrongdoing a sufficient check against corruption?
We already rely on people risking criminal convictions. It is a crime for people with security clearances to leak information to third parties including the press. Most of the press appear to be fine with these laws. For example, the NYT demanded an investigation and prosecutions in the Plame leaks. Do you disagree with them?
As I understand it, no classified information released in the incident you cite was evidence of official wrongdoing or corruption. I think the the leakers and publishers risked prosecution and conviction. But I don't understand how that risk was a cost of revealing official wrongdoing.
Would a journalist want to bet his life on the public's view of his credibility?
That works for small leaks transmitted by word of mouth, e.g. "Valerie Plame works for the CIA." It's not so good for a leak accompanied by documentation, say letting a reporter look at a 200-page report on how a platoon was trapped and nearly wiped out because of defective equipment. No one's going to believe that you didn't notice the huge "Top Secret" stamp on every page.
That's why you put redact tape (available at all fine office supply stores) over the stamp and make a clean copy before passing it along.
As I understand it, no classified information released in the incident you cite was evidence of official wrongdoing or corruption. I think the the leakers and publishers risked prosecution and conviction. But I don't understand how that risk was a cost of revealing official wrongdoing.
So, who is to determine if a leak is associated with wrongdoing or corruption? The courts or the NYT editorial board?