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Will Justice Prosecute Journalists?

That was one of the questions in a Senate Judiciary Committee hearing yesterday at which Deputy U.S. Attorney Matthew W. Friedrich testified. The Washington Post reports:

Friedrich, in his opening statement, confirmed that the Justice Department was prepared to investigate and prosecute leaks, but referred to Attorney General Alberto R. Gonzales's recent statement that the "primary focus is on the leakers of classified information, as opposed to the press."

When Friedrich confirmed that the department thought that journalists or "anyone" could be prosecuted under the Espionage Act for publishing classified information, Specter asked specifically about whether the law could be applied to reporter James Risen of the New York Times, the newspaper that published an article in December about the National Security Agency's warrantless surveillance program.

"Obviously, Senator, I can't comment as to any particular case or specific matter," Friedrich said. He added that espionage laws "do not exempt . . . any class of professional, including reporters, from their reach."

Specter then asked, without specifying a particular case, whether the department, under Gonzales or former attorney general John D. Ashcroft, ever considered prosecuting a newspaper or reporter for publishing leaked classified information.

"I don't think it would be appropriate for me to give an indication one way or another, and I hope people don't read anything into my answer one way or another," Friedrich said. But after a short lecture from Specter, he added that it was his "understanding" that there were historical examples of officials considering whether to prosecute journalists.

johnt (mail):
I would think you couldn't prosecute God, assuming you could even catch him, but as American journalists fall just short of that pinnacle, why not? If convicted just make sure they get the NY Times, The Nation, and their daily overdose of NPR in their cells. Strike that, they'll probably stay in the warden's office. Better to receive visitors from Amnesty Int'l.
6.7.2006 10:38am
Steve:
If the government has the power to imprison journalists for publishing classified information, and the unqualified power to determine what should be classified, there's not much left of the First Amendment. You might as well say "Congress shall make no law abridging the freedom of the press, unless the press publishes something that Congress doesn't want it to publish."

There is room, perhaps, to criminalize publication of a smaller subset of information - along the lines of, say, battle plans - but not every classified document is a battle plan.
6.7.2006 11:28am
byomtov (mail):
To make the problem Steve describes even worse, remember that the government has taken to classifying things that were previously unclassified, and were in fact published while in that unsanctified state.
6.7.2006 12:12pm
Andy Freeman (mail):
In a world where political speech is heavily regulated in no small part because of MSM's strident advocacy, I'm not sure why I should care whether journalists are thrown in jail for publishing classified docs.

If the first amendment is nothing more than a guild privilege, then it should fall.
6.7.2006 12:20pm
Freder Frederson (mail):
In a world where political speech is heavily regulated in no small part because of MSM's strident advocacy, I'm not sure why I should care whether journalists are thrown in jail for publishing classified docs.

I think you just invoked Godwin's Law on yourself.

There is no doubt that this administration has abused the classification privlege to classify documents and entire processes merely to hide their actions from public scrutiny. It is illegal to use the classification process to conceal illegal acts. Yet many on the right would allow the government to do just that, allow the administration to classify anything they wish, even illegal acts, and then rigorously prosecute anyone who revealed the illegal acts.

There must be some acceptance that the revalation of illegal acts of the government, even if the government claims they are state secrets, are not per se illegal or prosecutable.
6.7.2006 12:48pm
Tyrone Slothrop (mail) (www):

How is the criminal statute at issue here not a prior restraint?
6.7.2006 12:49pm
Houston Lawyer:
Could a journalist be prosecuted for publishing the information on veterans that was recently stolen from the Government? I believe so, if disclosure of such information violated a specific law. I don't see how intelligence secrets should be treated differently just because some people don't like the methods used to obtain that intelligence.
6.7.2006 1:15pm
TheSaint517:
My understanding is that its not prior restraint unless the government requires a reporter or newspaper to submit the column for review and then can grant the reporter or newspaper license to publish the story.

As to the prosecution of reporters: if they have broken the law then it is the government's job to prosecute them. I do agree with Steve though that we are standing at the edge of a slipery slope. But we have given the power to the government to make laws and to prosecute those who break them. The solution here, as I see it, is not to give journalists (who break the law) a pass, but instead to require more of out government. More definition should be given to what can and cannot be classified. How this is accomplished I'm not certain at this time, but we've got a lot of smart people here so I'm confident that some ideas could come from a discussion.

In summary I guess I should quote Blackstone's Commentaries:
"Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity."
6.7.2006 1:20pm
Al Maviva (mail) (www):
How is the criminal statute at issue here not a prior restraint?

It's a prior restraint but the espionage act would possibly survive a fundamental rights claim challenge as vindicating a compelling government interest. Well, at least insofar as preventing the theft or unauthorized disclosure of national security information is a compelling government interest. I mean, it's not as important as W.I.C. or free school lunches or achieving diversity in colleges, but some would argue that it is significant in one way or another.

Of course the mere asking of the question raises the terrible spectre of the Republicans yet again talking ad infinitum about the contents of a Democrat's pants, in this case, Sandy Berger's...
6.7.2006 1:22pm
Bruce Hayden (mail) (www):
Actually, I think that the point on prior restraint is precisely that the government here hasn't tried to keep the papers from publishing, but rather, may go after them after the fact.

In the Pentagon Papers case, the Supreme Court (I think it was a White concurrance, but w/o rereading it, don't know for sure) made the distinction - that prior restraint was when, as there, the government was trying to block publication through an injunction. That was a no-no, but that opinion suggested that criminal prosecution for illegally disclosing classified information was not - since it was after the fact, and not before the publication.
6.7.2006 1:25pm
Bruce Hayden (mail) (www):
The problem is that someone has to decide on what information our enemies should not be seeing. You have basically two choices, the popularly and constitutionally elected president, or the editor of some newspaper.

Of course, if you pick the publisher of a newspaper, then you really do have a slippery slope, even ignoring that whoever that publisher is, he wasn't ever elected to make that decision. But if the recent CA case on their press shield law is any trend, then bloggers will soon have similar rights as "professional journalists", and that means that anyone could publish the classified information online with impunity, claiming to be part of the "press".
6.7.2006 1:32pm
A. Zarkov (mail):
Steve:

If the government has the power to imprison journalists for publishing classified information, and the unqualified power to determine what should be classified, there's not much left of the First Amendment.

What alternative do you propose? Have no classified information at all? Never punish the unauthorized disclosure of classified information? Or simply exempt the press from the any laws dealing with the disclosure of classified information? In the last alternative, who gets to be called "The Press"? Would Radio Moscow from the old Cold War days have qualified?

".. but not every classified document is a battle plan."

That's true, so would you declassify nuclear weapons designs? You need to remember the US Government spent lots of money getting information like the "Equation of State" for Pu. This is pure physics information, but of vital information to anyone designing a weapon. Do you want that in the public domain? If you don't punish anyone for revealing that kind of information, why wouldn't someone sell it for lots of money to a hostile country or group?
6.7.2006 2:05pm
MnZ (mail):
Well, I have learned one thing. People spying on the US would be wise to get press credentials.
6.7.2006 2:08pm
byomtov (mail):
What alternative do you propose?

What alternative do you propose, Zarkov? Do you want a situation where the government can simply prevent anything from being published just by classifying it?

How do you stop the government then from turning a free press into an organ of whatever Administration is in power? Do you seriously believe that Administrations will not - do not - abuse classification privileges to conceal matters that are no threat at all to security, but are embarassing to the Administration? Touching faith you have.

I thought this site tended towards libertarianism. Where are the libertarian commenters? Or are they all just members of the "do whatever you want as long as you lower my taxes" branch of the movement?
6.7.2006 2:36pm
Paddy O. (mail):
Do we then decide our elected government is so untrustworthy as to depend on the even more biased representives of the press to determine what should be classified. By biased I don't necessarily mean politically. The press exists in its present form to make sales. They are owned by mega-corporations whose priority is their bottom line and who would eagerly risk lives by selling information for their own profit.

Administrations change. If something is illegal and classified it will be challenged in the court, as Nixon found out. That is the proper procedure. Having unelected, biased, often ignorant, reporters becoming the arbitors of our national security seems extremely unwise. Throw them in jail I say. They are not judges, they are reporters. And they think far too highly of themselves if they think they should have more ability to determine legality than our duly elected representatives.
6.7.2006 2:51pm
Bruce Hayden (mail) (www):
byomtov

Yes. If this Administration is over-classifying, the prescribed solution is that in 2 1/2 years, there will be another presidential election, and you can vote in someone who is more solicitous of your views. What are my choices when a publisher or an editor publishes stuff that I think should still be classified? If I am paying for his paper, I can discontinue that. But most likely I am not. At least you have a Constitutionally prescribed avenue to make changes. I don't.
6.7.2006 2:52pm
Medis:
Of course, there are plenty of middle grounds between "publishing government-classified information is always a crime" and "publishing government-classified information is never a crime".

For example, if your concern is national security, you could make actual harm to national security into an element of the crime. You could also establish appropriate mens rea with respect to this element, and maybe even have different grades of the offense (eg, it might be a more serious crime to publish something classified with the intent to harm the national security of the United States than to, say, publish something classified with a reckless disregard of the possibility that it would harm the national security of the United States).

On the other side, you could also create a defense to the effect that you cannot be convicted of the crime if the information was improperly classified. And so on.
6.7.2006 3:07pm
Andy Freeman (mail):
> I think you just invoked Godwin's Law on yourself.

Which Godwin's Law?

Why should I care about a guild privilege for a guild that actively works to restrict my free speech?
6.7.2006 3:19pm
Freder Frederson (mail):
More definition should be given to what can and cannot be classified. How this is accomplished I'm not certain at this time, but we've got a lot of smart people here so I'm confident that some ideas could come from a discussion.

Actually there are very clear definitions as to what can be classified and what cannot. Illegal acts of the government are per se not entitled to be classified. You can not classify material or refuse a FOIA request just to prevent embaressment to the government (which the president clearly violated a few weeks ago when he said he would release pictures of him with Jack Abramoff because they might be used by his political opponents to embaress him, but did the so called left-wing press call him on it, of course not.)

The question is what do you do when a president claims a program is legal (e.g., warrantless wiretapping, NSA datamining of phone records), classifies the program, reasonable people and legal scholars disagree as to whether the programs are indeed legal and they are leaked to the press. If the programs are illegal, they are not entitled to be classified. Therefore, how can it be a crime to reveal an illegal program which by definition cannot be "secret" under the classification rules.
6.7.2006 3:28pm
Paddy O. (mail):
"Therefore, how can it be a crime to reveal an illegal program which by definition cannot be "secret" under the classification rules."

It should be a crime when an organization takes on the role of deciding the illegality. To reveal something that has not been duly declared illegal by official means is to engage in nothing more than verbal vigilantism. It is up to the courts to decide the legality of disputed methods, not some self-appointed organization. Just as a vigilante should be prosecuted for taking the law into their own hands, so too should the press.

Maybe then there should a the risk the press has to realize. If a court decides, for instance, Bush did not do anything illegal then the press should be arrested for disclosing a properly classified secret. If it is illegal, they aren't arrested. The press may be better at finding out the answer to this is they realize they risk jail for an error, just as they risk people's lives for their willingness to blab overmuch.

As nothing, thus far, has been declared illegal, this means it was apparently properly classified and the press broke the law.
6.7.2006 3:38pm
Freder Frederson (mail):
To reveal something that has not been duly declared illegal by official means is to engage in nothing more than verbal vigilantism.

But if the president can declare anything he likes classified, even if it is illegal, and pretty much prevent it from ever being revealed, because he can have anyone who reveals it arrested, how will illegal acts of the government ever be revealed? No one will be able to challenge the act because the simple act of challenging it will be declared a revalation of secrets (this is exactly what this administration is doing by having cases thrown out of court on "National Security" grounds).
6.7.2006 3:56pm
Paddy O. (mail):
Revealing it can take many forms. If there is illegality it should go to a court to determine not to the presses to publicize.

Those who are in a position to see classified documents, such as senators, etc. should also be able to take something to a court. Lots of people knew what was going on but until the Times made it public they didn't bother to think of it as illegal and thus make an issue of it in committees or in the court. I'm all for someone like Feingold, or another senator/representative, pressing the legality through judicial or legislative methods. He is elected to do just that. Even if I disagree, it is his job to be the voice on things we are not allowed to know.

Indeed, I'm even all for having someone involved at any level being able to go to a lawyer or court and challenge the legality of what is going on. They can take it to their representative or Senator to pursue in proper fashion. I'm not for people making their first step talking to the press, and for the press' first step publishing what may or may not be illegal. There are already checks and balances built into our politics.

The press is not one of them and they shouldn't be given the rights to be one of them just because they like the feeling of importance it brings and the copies it sells.

Not everything the President classifies is illegal. Indeed, just because there is a debate over its legality does not mean it is illegal. Do we completely undermine the whole system of classifying and secrecy just to add rhetorical fire to the public debate?
6.7.2006 4:17pm
Steve:
There's room for debate on this issue but I'm shocked at a number of commentors who basically think the First Amendment is up for grabs since, after all, if you disagree with the President's violation of First Amendment principles you can elect a new President in a few years.

The idea that the press should have to go to court to affirmatively obtain the right to print whatever the government doesn't want it to print is absurdly violative of the First Amendment. You don't have to believe the press should be free to publicize, say, troop movements to understand that blanket criminalization of publishing classified information is simply unconstitutional.
6.7.2006 4:23pm
byomtov (mail):
If a court decides, for instance, Bush did not do anything illegal then the press should be arrested for disclosing a properly classified secret.

You seem to be saying that the only time it would be OK to reveal classified information is if it shows the government engaging in illegal activity. This is way too narrow. Many things may be classified that do not conceal illegalities, but simply would be politically embarassing.

I agree with Medis that for there to be a crime there should be actual harm to national security. Protecting national security is the reason for classification. If that reason cannot be supported then the classification is improper.
6.7.2006 4:27pm
eddie (mail):
I do not think that the press should get a blank slate, however, I think that merely publishing classified information is insufficient for prosecution. I think that the government must show how a compelling interest of the people has been substantially compromised by such publication.

Simply voting the bum out does not declassify improperly classified documents. And will never completely shine a light onto those ugly secrets that have nothing to do with protecting the country and everything to do with protecting individuals who may have gotten their hands a little dirty.

There must be serious oversight in this area because the temptation to abuse the classification of information is simply too strong and the ability to do it is instantaneous.

How can there be any limit to the government, if the amount of information which is kept hidden from the people is not similarly (indeed even more greatly) limited and subject to constant scrutiny co-equal branches of the government, including citizen panels? Why does this government not trust half of its citizens? And how can such a distrustful apparatus be in compliance with a Constitution that unambiguously states that the only power the government has derives from the people themselves.

Let's say, for example, that the information regarding abuse of inmates at Abu Ghraib was all classified, including any photo graphs. Does this mean that the "bad apples" would have escaped prosecution? Is that a good (or dare I ask, just) result? [Please leave aside the torture debate.] Let's go further and assume that there is a classified written order from higher in the chain of command regarding this "treatment of prisoners" but that only the bad apples have been punished (since that cat was let out of the bag by the stupidity of the perpetrators in taking pictures of the activity). Has justice been served? Have the people been served?

So much is made of the Constitution and the words contained therein and how brilliant the framers were, but so little is given to the spirit that permeates the document. Now its all politics.

I dare say that regardless of ideology, any minority party and the general public will always have the need to pierce the veil of secrecy that those in power seak to drape in front of them. And if living in a post 9-11 world means that such a shroud is given more fealty than the people of the United States, the terrorists have won and need not fire another shot or blow up another bomb.
6.7.2006 4:33pm
Houston Lawyer:
It appears that the answer is to have vigilanties take care of members of the press that violate the law. One hand then washes the other.
6.7.2006 4:45pm
A. Zarkov (mail):
byomtov:

What alternative do you propose, Zarkov?

You're answering a question with a question? I think the burden to provide alternatives rests on those critical of the current system. Under the current system we do have problems with over classification, but the abuse has not risen to the level where we no longer have a free press or lack freedom of expression to a significant degree. We do not have anything (to my knowledge) as burdensome to free expression as the UK's "Official Secret's Act."

Some abuses have already been fixed. Until sometime in the 1990s, we had the concept of "born classified" for SRD (secret restricted data) pursuant to the original Atomic Energy Act. This means no one had to classify certain things, they were automatically classified until declassified. As a consequence, someone acting entirely on his own, using no classified sources could have his work product taken by the government, and he could be held criminally liable (after being notified) for revealing his own thoughts to unauthorized people. I know of at least one case where exactly this happened. On the other hand, classified DOD material (covered by a different set of laws) has never been "born classified;" and someone had to have to have made it classified according to specific guidelines). Of course material "born classified" also had to conform to specific guidelines as well.

"Do you seriously believe that Administrations will not - do not - abuse classification privileges to conceal matters that are no threat at all to security, but are embarassing (sic) to the Administration?"

I absolutely believe that administrations do exactly that. They also declassify things entirely for political purposes. Secretary of Defense Brown in the Carter Administration called a press conference and revealed the existence of the stealth aircraft program, one of the most closely guarded DOD secrets at that time. Carter did it to defend his administration against charges that it was letting military technology slip.

We also have double standards. A high Nixon Administration official once had a codeword document (very sensitive compartmentalized stuff) out in a semi-public place. An ordinary person (with clearance) would have been crucified for such a careless lapse of security. Just recently Sandy Berger removed classified documents (perhaps as many as 50!) from the National Archives, destroyed them and then initially lied about what happened, claiming it was an accident! He was allowed to plead guilty to a misdemeanor and got his clearance revoked for a mere 3 years. Wow! Compare that to Wen Ho Lee who was threatened with the death penalty, put in solitary confinement for 9 months in shackles for doing almost nothing. He was a victim of the FBI and the press. Just last week we find out he has been awarded civil damages in an amount of $895,000 from the federal government, and $750,000 from AP, ABC News, the Washington Post, the New York Times, and the Los Angles Times. James Risen from the NYT was one of the people who did a hatchet job on Lee. Is this the kind of press you want to exempt from our classification laws? Bear in mind you don't collect civil damages from the likes of the federal government and the major media unless they have really done something very wrong.
6.7.2006 5:07pm
Bruce Hayden (mail) (www):
Well, I obviously diagree with most of the posters here. For example, I don't consider the possibility that a phone call of mine overseas might be tapped without a FISA warrant to be equivalent to 9/11 or living under Sharia law. So, no, I don't agree that we have already lost if journalists are thrown in jail for violating federal law.

What everyone seems to be missing is that these aren't new laws. They have been on the books for decades. The most likely statute under which the press would be prosecuted, that of disclosing signals programs and the like, was specifically mentioned in the Pentagon Papers case more than 30 years ago.

There are a number of reasons that this subject has now become topical. First, up until recently, many had thought that the press was somehow immune from federal law. This falacy was pretty much put to rest with the Plame investigation - though how anyone could have believed that before Fitzgerald threw a recalcitrant journalist in jail, I don't really know. There is no statutory law and little case law supporting that proposition at the federal level.

The reality is that the thing that keeps journalists out of jail when they disclose classified information is public opinion. And, because of that, administration after administration refuse to prosecute what are obvious crimes committed by journalists in this area. And that is where it should, and, I submit, will remain.

Thus, you effectively have your "lack of harm" defense. If a journalist releases classified information that he deems harmless, and he is right, he most likely won't be prosecuted. This is esp. true if he discloses administration venality. But if he is wrong, then he pays the price of his fecklessness.

Finally, the suggestion that there should be a scienter requirement is also questionable. Good motives that translate into disclosure of information vital to our national interests should not, and cannot be tolerated by this country if it wants to defend itself. Taking an extreme example, which we have to do here, given the stakes involved, let's assume that someone doesn't understand why certain nuclear weapons technology is more important than other such information (because, for example, he has a journalism degree, and not an engineering or scientific one), and figures that since you can find information on the Internet on building nuclear devices, that no harm is done by disclosing the actual shapes of some of our nuclear devices. But this turns out to eliminate the need for some of the testing that we had to do to make those designs, and, thus, months or even years from development of a similar weapon.

Should the guy go to jail? I think so, and the best motives shouldn't stand in his way there. Why? Because the possibility of enforcement is what stands in the way of releasing critical information to our enemies.
6.7.2006 5:15pm
Bruce Hayden (mail) (www):
One problem with Houston's suggestion that the burden of proof should be on an administration to prove harm is that that changes the presumption from nondisclosure to disclosure. Add to that, that in many cases, the government would have to disclose substantial national security information in court just to prove that the information disclosed previously caused harm. Sure, some security measures can be taken to protect the additional classified information, but sometimes such information is only known by a small number of people, all who have undergone, and continue to undergo, stringent security clearance investigations. Are we talking having federal judges, and maybe even juries (after all, you are suggesting findings of facts in criminal prosecutions) having to get security clearances? Or, alternatively, that they should just be discarded?
6.7.2006 5:29pm
Bruce Hayden (mail) (www):
The answer to whether someone should be prosecuted for disclosing information that was classified solely for the purpose of avoiding embarassment is that if the government did prosecute for such, the American People would be outraged. The last time that something even close was tried, the president at that time was run out of office.

Which brings me back to my earlier point - many of those suggesting that we need to protect journalists disclosing classified information because of the possibility that an administration might abuse their powers to classify and prosecute, my answer is that this would be abuse, and it is precisely to guard against abuses of power that the framers of our Constitution included checks and balances between the different branches of government. Yes, in extreme examples, this means impeachment. But long before that, it means Congressional investigations, etc.

Someone has to decide when a president and his administration has stepped over the line. The best choice, IMHO, are the other branches of government, doing so in the Constitutionally prescribed manner. Congress, in particular, is answerable to the people, to a far, far, greater degree than is any newspaper publisher, editor, or reporter.
6.7.2006 5:43pm
byomtov (mail):
You're answering a question with a question?

Did you read my later comment?

I suggested that revealing classified information should be a crime only if there is damage to national security. Not claims of damage, actual damage.
6.7.2006 5:51pm
Bruce Hayden (mail) (www):
byomtov

In other words, shifting the burden of proof to the government, which may not be able to meet it without disclosing a lot of other highly classified information to people lacking security clearances.
6.7.2006 6:01pm
Medis:
Bruce,

You do not seem to put much stake in the government having the burden of proof when it seeks to criminally prosecute people. That is kinda scary.
6.7.2006 6:09pm
A. Zarkov (mail):
"I suggested that revealing classified information should be a crime only if there is damage to national security. Not claims of damage, actual damage."

That's not really workable. There are lots of things we classify whose publication might or might not harm national security. Suppose country X has all the pieces of a nuclear weapon, but one. We don't know which one(s) they lack so we have to classify all the pieces. (Here a "piece" could mean an actual hardware component, data, or even an algorithm) If that one gets published, we might not ever know how useful it was to an enemy, so we can't prove actual harm in a court of law. But it was still reasonable to have classified it in the first place, and it's also reasonable to punish those responsible for publishing the material even though we can't prove actual damage. The crime is revealing the information. The perpetrator has no right to decide on his own whether something is properly classified or not. To do otherwise is to invite a kind of anarchy.

The government can and has abused the SRD classification. A good example is the "Progressive Case" where the government sought prior restraint on publication on the grounds that publication would harm national security. But the government was wrong on the facts, and eventually dropped the case. Good thing it did because it would have had it's head handed to it in court as some very knowledge expert witnesses were ready will and able to testify that the article would not compromise national security. So the system works, at least sometimes. I hope you don't have the impression that I'm necessarily on the government's side on matters of classification-- far from it. Sometimes it's right and other times it's wrong. I just don't trust the press as arbiter in these matters, especially the New York Times-- the newspaper with the most policy and the least integrity.
6.7.2006 6:26pm
dick thompson (mail):
Medis,

Losing out existence as an independent country is more scary.

Having out laws replaced by Sharia laws is even more scary.

Allowing the editor of the NY Times decide our national security is the scariest of all.

All of the above are the natural outgrowth of your assumptions.
6.7.2006 6:36pm
Bruce Hayden (mail) (www):
Medis,

Ok, I may have misspoke, as you have caught me doing before. I am in complete agreement with the government having the burden of proof that a crime has been committed. Right now though, they have to prove that classified information was disclosed illegally. Harm is not an issue, because, at least in the gross, it is assummed - esp. since the government has, over the years, shown itself unwilling to prosecute if there really wasn't any harm.

This would be an added element - harm, and it is that element where the government would now have a burden of proof, that it would, for national security reasons, in many cases have a hard time proving. And it is an element that doesn't have to be proven right now, because it isn't an element in the crime.

So, maybe a better way of phrasing this would have been that the suggestion would have added an element to the crime that wasn't there previously, that the government would have to prove, and, thus, most likely greatly increase their overall burden of proof.
6.7.2006 6:51pm
Christopher Cooke (mail):
The government makes bone-headed use of its criminal prosecutorial authority all of the time, and the press is really our only check on that sort of abuse by the government, given that all 3 branches are controlled by the same party, and the prevalence of gerry-mandering.

As an example, a few years back (10 years ago), the US DoJ was investigating the software author of the PGP encryption program, who posted that program on the internet, for allegedly violating export control laws pertaining to "munitions." It dropped the investigation due to press reports about it and outrage by the software community.
6.7.2006 7:00pm
Steve:
Where are all the Second Amendment absolutists to defend their favorite amendment's good neighbor?
6.7.2006 7:13pm
johnt (mail):
If someone benefits from the release of classified information, and that someone is an unlikeable character with a propensity to violence, can we issue a court summons to Mr. Someone and have him testify as to actual damage, assumming he's not hiding in a cave in Afghanistan. And would a lawyer then argue that the damage is minimal and get a jury of morons to vote not guilty or for reduced charges?
6.7.2006 7:28pm
Christopher Cooke (mail):
One way for the government to address this issue is simply to prosecute the leakers, and not the reporters. Historically, that has been the DoJ's approach. But, under AG Gonzalez, the DoJ has become much more aggressive with the press, as we can see with the DoJ subpoena to the SF Chronicle reporters who broke the steroid scandal. That leak was not harmful to national security in any arguable sense, but merely violated some other secrecy policy (Fed. grand jury secrecy).

Any attempt to use the Espionage Act to go after the NY Times for the NSA story might create the appearance that the Bush administration is seeking to use the criminal laws to punish that portion of the press that is still not in its camp.
6.7.2006 7:45pm
Bruce Hayden (mail) (www):
And that is one big reason why any administration is reluctant to go after the press - the appearance that it is doing it for venal reasons. I do think though there is, and always has been, more of the mainstream press opposed this administration than supporting it.

The interesting thing though is that the NSA disclosure actually is different than most of the leaks of classified information that we have seen in the past - because it appears to also fall under 18 USC 798, as well as the other statutes usually of interest, such as 793.

BTW, rereading these statutes, I noted that 793 almost does have the sort of evil intent type of element that some posters here have suggested would be provided. Notably, 798 does not, but it is narrowly enough drawn that it is unlikely to provide many of the horribles suggested above.
6.7.2006 9:21pm
Andy Freeman (mail):
> Where are all the Second Amendment absolutists to defend their favorite amendment's good neighbor?

The same place that the First Amendment absolutists are when the 2nd is under attack. (Actually, that's slightly wrong. "Gun-Nuts" are slightly more likely to be 1st zealots than the reverse.)
6.7.2006 10:09pm
David M. Nieporent (www):
I don't understand why all the people here who are arguably supporting the prosecution of journalists ignore the fact that it is 100% illegal to disclose classified information to journalists. Nobody is proposing that the leakers be exempt from prosecution.

To the extent we think that the prospect of prosecution will act as a sufficient deterrent (to journalists who are considering publication), why do we not think it will act as a sufficient deterrent to potential leakers? Especially given that (as we know from Judy Miller) the leaker cannot hide behind the journalist's invocation of the First Amendment to avoid being identified.

Why do we need to consider or threaten prosecution of the media? (And yes, that includes bloggers; unlike the New York Times, I don't think that journalists are a priestly elite.)
6.7.2006 10:42pm
A. Zarkov (mail):
One way for the government to address this issue is simply to prosecute the leakers, and not the reporters.

Why not prosecute both? Suppose a newspaper gets a leak "over the transom" as they used to say in the old days. Or suppose a secret document just gets out into circulation by accident. For example a locking file cabinet is improperly cleaned out, and a classified document gets wedged in the back behind a drawer. This has actually happened. Sometimes people just leave classified documents in places like phone booths. Are these documents now fair game for the press to publish? Isn't this a little like knowingly receiving stolen goods? If a newspaper comes into possession of a document with a cover clearly marked "SECRET SRD," and the inside pages full of the usual warning labels about unauthorized disclosure; they have no excuse not to return it.
6.8.2006 1:34am
David M. Nieporent (www):
Why not prosecute both?
Because the first amendment protects one, but not the other.

Isn't this a little like knowingly receiving stolen goods?
A little. Except for the goods and the stolen part.
If a newspaper comes into possession of a document with a cover clearly marked "SECRET SRD," and the inside pages full of the usual warning labels about unauthorized disclosure; they have no excuse not to return it.
Sure, but what does that have to do with the topic? They would have to return the physical document. Not the words or pictures on the page. We're talking about whether they can publish the information, not whether they can retain the piece of paper the information is printed on.
6.8.2006 2:47am
Bruce Hayden (mail) (www):
David answers:

Why not prosecute both?

Because the first amendment protects one, but not the other.
But the 1st Amdt. doesn't protect journalists here, though I suspect that you would like it to do so.
6.8.2006 4:12am
Anonymous Reader:
Let's say, the person who stole the laptop that contained millions of vetrans and active duty personnel's personal information. According to Nieporent, that person could return the laptop, but still use the information? How much sense is that?

The classification doesn't just apply to the actual paper or document. It applies to the information. In fact, there are some documents that are classified because of 1 line of text. Granted you can redact that line and publish it, but sorry, I don't put that much confidence in our esteemed press to get it right. How often do they get the simple, common sense things wrong?

Anonymous Reader
6.8.2006 6:29am
Medis:
dick,

Of course, you have to make sure that you keep the country you are fighting for actually worth fighting for.

A. Zarkov,

First, that is not a very realistic hypo. It would be pretty odd for us to know that a country lacked something on a long list without knowing anything about the country's knowledge with respect to each thing--otherwise, how did the things get on the list in the first place? Second, it would be odd for someone to disclose only one of many such things--eg, if we did happen to have a document full of things a country might lack, but without knowing which, then disclosing the whole document would still create provable harm.

In any event, that sort of hypo can be dealt with just by providing a suitable definition of "actual harm". In other words, disclosing a nuclear secret we have reason to believe a hostile country might not know--even if we are not sure they do not know it--could count as actual harm. In general, I was just sketching out the vast middle ground between the extremes (all publication of classified information is criminal, or none is), not trying to put a pin in the exact right spot.

Bruce,

You beat me to it ... I was about to point out that what I was describing was not too far off from our actual security laws. And even 798 states:

"Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information [following within one of the four enumerated categories] Shall be fined under this title or imprisoned not more than ten years, or both."

So, first, there is actually a harm element here--the publication would have to be "prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States."

As for mens rea, it becomes an issue (not unusual in criminal law) of the scope of "knowingly and willfully". If that extends to the harm element, then you are basically back to an intent to do something harmful to the United States.

Finally, it is true that it will be at least marginally harder for the government to prosecute people the more elements you have, and every additional element in national security cases may trigger more situations in which the government will have to make a decision about whether the prosecution is worth further disclosure of secrets the government would otherwise like to keep.

But that is hardly a unique problem to this issue--there are lots of potential crimes that might, when applied to cases involving national security, require the government to make a decision about whether the prosecution is worth the disclosure of some secret. Indeed, that is just as true in non-national-security cases (eg, think of the DEA not wanting to reveal sources and methods). So, it can't be sufficient to point out that the United States may face such a tradeoff in some prosecutions for illegally disclosing classified information, because we accept that tradeoff all the time.
6.8.2006 10:08am
A. Zarkov (mail):
Medis

"First, that is not a very realistic hypo. It would be pretty odd for us to know that a country lacked something on a long list without knowing anything about the country's knowledge with respect to each thing..."

The list need not be long. For example a country might do an atmospheric test of a primary and we would know a lot about the design from a radiochemical analysis of the debris. They might later do an underground test where we can't sample the debris. So now we don't know if they have added a secondary or made advancements in the design of the primary. These scenarios are more than hypotheticals.

"In other words, disclosing a nuclear secret we have reason to believe a hostile country might not know--even if we are not sure they do not know it--could count as actual harm."

You are playing word games here.


"So, first, there is actually a harm element here--the publication would have to be "prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States."

The main reason the information is classified is that its "publication would be prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States." As a defense one could try to demonstrate that the information was misclassified, but I don't know how well that would work with the contents of an explicitly labeled secret document. Note the distinction with the Progressive Case where the government was saying that publication of an unclassified article would harm the US.
6.8.2006 2:39pm
A. Zarkov (mail):
David M. Nieporent

"Because the first amendment protects one, but not the other."

How does the first amendment protect a reporter who commits a crime? The first amendment doesn't even protect a newspaper from the violation of a civil contact. I can't remember the name of the case, but a newspaper made a deal with a source that they would not reveal his name. Later they decided they would renege on the deal to get another story. The source was harmed by losing his job. The source sued and the newspaper claimed first amendment protection. Ultimately the newspaper lost.

Sure, but what does that have to do with the topic? They would have to return the physical document. Not the words or pictures on the page.

Anonymous reader has dealt with your answer. But let me add that reasoning wouldn't even apply to a trade secret. If you got a document with the formula for WD-40, do you think you are now free to use and publish the formula?

Finally if you should somehow come into possession of a classified document or a laptop with classified information, don't read it! Return it and hope it didn't have very sensitive information or you could find yourself sitting in a dark cell somewhere.
6.8.2006 3:07pm
Medis:
A. Zarkov,

I don't think it is just a word game given how broadly terms like "harm" can be defined in legal contexts, but it doesn't matter--you can substitute whatever term you like if you don't think "actual harm" covers such a scenario. The broader point is just that you can have an element of the offense that looks to the actual harm/risk-created/damage-done/etc. to national security by the publication, rather than just assuming that anything classified by the government would in fact have such an effect.

And along those lines, you say:

"The main reason the information is classified is that its 'publication would be prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States.' As a defense one could try to demonstrate that the information was misclassified, but I don't know how well that would work with the contents of an explicitly labeled secret document."

As an aside, note that I specifically mentioned such a defense myself. And I'm not sure why the label matters--if it was misclassified, then any document containing the information probably did have such a label on it, but so what?

Anyway, even supposing that the information was classified in a good faith effort to protect the safety or interests of the United States, that doesn't mean that whoever decided it should be classified it was right about that matter. Again, making this into an element of the offense--as Section 798 actually does--means that the government cannot rely simply on the fact that the information was classified by the government to show that publishing it was prejudicial to the safety or interests of the United States. Of course, if it was properly and accurately classified, then the government can probably meet that burden. But if not, then the government's prosecution may fail.

Anyway, broadly speaking, all I am doing is showing that there are a variety of middle ground positions between the extremes (that publishing classified information would always be a crime, or that publishing classified information would never be a crime). And I did that essentially to suggest that some people had been captured by a false dichotomy.

Finally, I might note that the practical effect of most of these middle grounds would indeed be to reallocate the ultimate decision about whether the document was properly classified away from the government. But it wouldn't be reallocated to the publisher--it would be reallocated to the jury. And broadly speaking, that reallocation is well within the purposes of our jury system, because the very idea of that system is to give the people the ultimate say on whether the government has shown that someone deserves criminal punishment.
6.8.2006 3:41pm
byomtov (mail):
you can substitute whatever term you like if you don't think "actual harm" covers such a scenario. The broader point is just that you can have an element of the offense that looks to the actual harm/risk-created/damage-done/etc. to national security by the publication, rather than just assuming that anything classified by the government would in fact have such an effect.

Yes. My use of the term "actual damage" was a little careless. I intended something like what Medis suggests here.

The main point is that there has to be some way to prevent the Administration from simply covering up anything it chooses by classifying it and deterring disclosure by the threat of prosecution.

Notice that the suggestion that abusive classification can be punished at the ballot box is illogical. How will voters know about it?
6.8.2006 6:09pm
David M. Nieporent (www):
Bruce Hayden:
But the 1st Amdt. doesn't protect journalists here, though I suspect that you would like it to do so.
There's no "unless the government doesn't want you to print it" exception in my copy of the document. Perhaps you have a different version?


Anonymous reader:
The classification doesn't just apply to the actual paper or document. It applies to the information.
Context matters. I wasn't talking about the "classification." I was talking about whether it was "stolen property."


A Zarkov:
How does the first amendment protect a reporter who commits a crime?
It doesn't, of course, but you're putting the cart before the horse. How is it a crime if the first amendment protects it? (I am assuming you're talking about the actual printing of the information being the "crime"; if the reporter committed some independent crime in order to obtain the information, such as breaking-and-entering or bribery, that presents a different issue.)
6.8.2006 8:58pm