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Gov't May Prosecute Recipients of Leaked Information:

The federal government may prosecute private citizens who illegally receive and retransmit classified information, held federal district court Judge T.S. Ellis III yesterday in United States v. Rosen. Judge Ellis denied a motion to dismiss filed by Steven Rosen and Keith Weissman, two former employees of the American Israel Public Affairs Committee (AIPAC), who are being prosecuted under the Espionage Act for obtaining classified information and communicating it to third parties, including members of the media. According to Judge Ellis:

both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

Any violation of the statute must be both knowing and willful, Judge Ellis ruled, narrowing the implications of the decision.

the government must . . . prove that the person alleged to have violated these provisions knew the nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless. . . . [And] with respect only to intangible information, the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation, which the Supreme Court has interpreted as a requirement of bad faith.

While allowing the government's prosecution to proceed, Judge Ellis made clear he was not passing on the wisdom of the government's proseuction, just its contitutionality.

The conclusion that the statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. . . . the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation's security and our citizens' ability to engage in public debate about the United States' conduct in the society of nations.

Steven Aftergood on the Secrecy News blog notes that Judge Ellis' decision could have distubing implications for press freedoms.

the classified 2004 report of Maj. Gen. Antonio Taguba on prisoner abuse at Abu Ghraib prison clearly fit the court's description of national defense information that is closely held by the government. Moreover, its unauthorized disclosure was likely to, and did in fact, harm the United States. And yet that disclosure also served an important national purpose in prompting a public debate over U.S. policy on prisoner detention and interrogation.

But under Judge Ellis' new interpretation, those reporters and others who communicated this information to the public could apparently be prosecuted under the Espionage Act.

Under Judge Ellis' interpretation, it also seems the federal government could prosecute reporters at the Washington Post and New York Times for their reports on secret prisons, NSA surveillance, and other classified counter-terrror activities.

Steve:
I confess it's hard for me to see how the Abu Ghraib report fits within the definition of information related to the national defense.

In what sense did disclosure harm the United States? Because somewhere out there, a jihadi was enraged by what they read? This would seem to be a difficult element of the crime to establish.

Harm to the United States, under the precedents, seems like it has to be more than simply a case of bad PR.
8.10.2006 5:47pm
Anderson (mail) (www):
I hope we will hear from one of the VC's First-Amendment experts on whether the freedom of the press presents any countervailing factors that did not apply in the instant case.
8.10.2006 5:51pm
Third Party Beneficiary (mail):
"In what sense did disclosure harm the United States? Because somewhere out there, a jihadi was enraged by what they read?"

Yes, there has to be some sort of limiting principle. If "harm" is defined that broadly, the First Amendment is effectively a dead letter vis a vis government documents -- classify everything and then, if it is leaked, claim that the release brought the American government into disrepute and diminished American standing in the world, thereby encouraging America's enemies.
8.10.2006 5:53pm
Ralph Hitchens (mail):
(I mentioned this once before, recently, somewhere on the net.) Back in the late 80s or early 90s the Washingtonian Magazine profiled Bob Woodward. Accompanying the article was a photo of Bob at home in his study, comfortably ensconced in an armchair, and on the table next to him rested a stack of documents. The top document in the pile was clearly identifiable (to those of us "in the business" as a NSA SIGINT report. White cover with a certain pattern of red &black stripes, logo in the right place, as I recall. I hope Bob won't leave himself open to prosecution by allowing such a photograph these days.
8.10.2006 6:02pm
Thorley Winston (mail) (www):
I think that this title is a bit misleading. AFAICT from Professor Adler’s summary, Judge Ellis didn’t rule that the government may prosecute someone for merely being the recipient of classified information but rather that the person must also retransmit that information. Which seems rather commonsensical. If it’s wrong for a renegade member of the military or an intelligence agency to leak classified information to someone who knows that the information was leaked illegally and that further transmission could harm the United States or aid our enemies, then of course the person who knowing this goes ahead and retransmits it further ought to be prosecutable.
8.10.2006 6:06pm
sksmith (mail):

It seems pretty logical to me.
1) there are legitimate government secrets that shouldn't be publicized.
2) Unless the government merely has to hope they don't get publicized, the government has to be able to punish people who allow those secrets to be publicized. The government shouldn't have to merely hope that secrets don't get publicized.
3) Unless we want to give individuals who happen to work for certain companies* more constitutional freedoms than the rest of us, simply because they because they work for those special companies, then anyone who allows those secrets to be publicized can be punished (*CBS, NBC, ABC, etc).
4) The government can punish members of any organization who expose government secrets (including CBS, NBC, ABC, etc).

Which sentence is wrong?

Steve
8.10.2006 6:09pm
Byomtov (mail):
To agree with others - if you take the position that the disclosure of Taguba's report was a crime you have created a situation where any misconduct by the military can be classified and buried.

What, exactly, is the plain meaning of:

Congress shall make no law ... abridging the freedom of the press..
8.10.2006 6:11pm
Kevin L. Connors (mail) (www):
Relating this to recent media disclosures, I think the lynchpin lies here:

...the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation, which the Supreme Court has interpreted as a requirement of bad faith.

Here's where Pentagon Papers analogies fall short. In that landmark case, it was quite clear to see that disclosure served the public interest, and that the United States substantially harmed, except perhaps in it's diplomatic credibility.

The same can not be said of some recent disclosures vis-a-vis the GWOT. But then we must look closer, at the "defendant had a reason to believe" clause. So, still, the factor of judgment is left with defendant. And this is a HUGE loophole.
8.10.2006 6:28pm
Kevin L. Connors (mail) (www):
Oops, that should read: "the legitimate interests of the United States were not substantially harmed."

Hey, Eugene: How about giving us regular, registered commenters the ability to edit our own posts? :D
8.10.2006 6:33pm
MikeR:
Re Byomtov:

What, exactly, is the plain meaning of:

Congress shall make no law ... abridging the freedom of the press..


Are libel laws are unconstitutional when applied to newspapers or other organs of the press?

If you accept the constitutionality of libel laws, you cannot have an interpretation of the first amendment based solely on the "plain meaning" of the text.
8.10.2006 6:38pm
Thorley Winston (mail) (www):
If you accept the constitutionality of libel laws, you cannot have an interpretation of the first amendment based solely on the "plain meaning" of the text.


I think it hinges on whether “freedom” means something akin to “you can pretty much do anything you want even if you infringe on the rights of another in the process” or whether it means something more like “you can pretty much do anything you want unless and until you infringe on the rights of another.” The courts IMO who tend to be pretty strong defenders of freedom of speech and the press tend to lean more in the latter direction.
8.10.2006 6:49pm
Bart (mail):
...the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation, which the Supreme Court has interpreted as a requirement of bad faith.

This is much more likely to apply to the recent rampant press disclosure to the enemy of classified intelligence programs than to merely embarrassing revelations about alleged detainee abuse.

However, this should be an issue of fact for the jury to decide, so who knows where it could go.
8.10.2006 6:53pm
Marc Gersen (mail) (www):
So could the government have prosecuted the NYT for publication of the Pentagon Papers, after publication?
8.10.2006 7:17pm
MikeR:
Re Thorley Winston

I think you are providing an example of why the "plain meaning" rule is inadequate. The dictionary definition of freedom is closer to your first option, something along the lines of the right to act without restraint, control or interference. Your second definition includes a restraint, a carving away of the "plain meaning" of freedom. I would agree that the second definition is closer to my intuitive understanding of what freedom means in the first amendment, but that is based on my adoption of that meaning from culture and study and not based on plain meaning.

Further, your framework doesn't help us address sticky questions such as the one of this post. The question changes from "Do we have a right to create a particular restraint on the freedom of the press?" to "What are the rights of another?" E.g.: Do I have a right to the security that I lose if sensitive military information is released to the public? Lest you think this is silly, think about where the right against libel comes from. I can't recall any specific right in the constitution to not be lied about. IMO, it is not easy to find the boundaries of the first amendment.
8.10.2006 7:28pm
A.S.:
The dictionary definition of freedom is closer to your first option, something along the lines of the right to act without restraint, control or interference.

Can you name any freedom that for which actions are entirely without "restraint, control or interference"? I can't think of any.
8.10.2006 7:34pm
John Burgess (mail) (www):
Marc Gerson: According to this decision, the answer is "probably yes". The gov't could not exercise prior constraint, but it could punish the publication. Nixon and his credibilty were so far down the toilet by then, though, that the gov't did not take up the case.
8.10.2006 7:41pm
MikeR:
Re A.S.


Can you name any freedom that for which actions are entirely without "restraint, control or interference"? I can't think of any.

This misses my point, which is that one cannot determine the bounds of the first amendment solely by resort to the text. If you look up freedom in the dictionary, you get a definition similar to what I gave. If you accept the premise that any meaningful freedom has some sort of restraint, control or interference (which seems to be a reasonable premise), you then have the task of determining what those are. In the case of the first amemdment, this isn't easy and Thorley Winston's definitions don't really help.
8.10.2006 7:50pm
cfw (mail):
On its face, the summarized holding looks consistent with the Uniform Trade Secrets Act. But at least in the civil context one gets to litigate (on a reasonably level playing field) whether the Coke formula just got disclosed, or something much more trivial.

If this judge has the "who can be sued" law right, then it seems we need a concerted push to make sure "classified" means something much more than just Rumsfeld on a whim one day decided he wanted to stamp something (c).

What lawyer for the NYT would ever bless the publication of the Pentagon Papers if his (or her) client could end up in court facing "slam dunk" criminal charges? Relying on the affirmative defense of "this is good for the country" would be malpractice.

I like this result, in the context of our classification scheme, about as much as I like the Alien and Sedition Acts.
8.10.2006 8:57pm
Jim Rhoads (mail):
This case does not bode well for those under investigation for the NSA leaks.
8.10.2006 9:02pm
Kristian (mail) (www):

What, exactly, is the plain meaning of:

Congress shall make no law ... abridging the freedom of the press..


The same one that prevents screaming fire in a crowded theatre?

Though, to be honest, I'd prefer trying many of these cases as treason or espionage, not "simply" reciept of stolen goods.
8.10.2006 9:21pm
Steve:
Harm to the country from the NSA leak would be much harder to establish in a court of law than it is on conservative blogs.
8.10.2006 9:22pm
dick thompson (mail):
Steve,

It shouldn't be.
8.10.2006 10:20pm
Justin (mail):
Well, so much for textualism. Though I guess you can argue that it's not Congress, but the executive, that is abridging speech simply because such speech is harmful to their party's election future.

I think Jonathan Adler's "analysis" is poor because of the reason mentioned above, though I think that reason is very sound. There's no conceivable argument that the intention of the New York Times in detailing George Bush's criminal activity was to harm our national security. Thankfully, not everyone buys the whole "voting Democratic is treasonous" meme that has become so encanting to the VC bloggers and commenters. So the New York Times is not liable under Judge Ellis' (note: this is just a district court's holding) interpretation of the constitutional limits of the EA.
8.10.2006 10:32pm
cathyf:
then it seems we need a concerted push to make sure "classified" means something much more than just Rumsfeld on a whim one day decided he wanted to stamp something (c).
Well, according to the plain meaning of "In no case shall information be classified", the executive orders that specify what classified information is (and is not) have already got that covered. Since at least 1978.
Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;

(3) restrain competition; or

(4) prevent or delay the release of information that does not require protection in the interest of the national security.
cathy :-)
8.11.2006 12:14am
Lev:

the classified 2004 report of Maj. Gen. Antonio Taguba on prisoner abuse at Abu Ghraib prison clearly fit the court's description of national defense information that is closely held by the government. Moreover, its unauthorized disclosure was likely to, and did in fact, harm the United States. And yet that disclosure also served an important national purpose in prompting a public debate over U.S. policy on prisoner detention and interrogation.

But under Judge Ellis' new interpretation, those reporters and others who communicated this information to the public could apparently be prosecuted under the Espionage Act.

Under Judge Ellis' interpretation, it also seems the federal government could prosecute reporters at the Washington Post and New York Times for their reports on secret prisons, NSA surveillance, and other classified counter-terrror activities.


I could have sworn I read him say that in order for a prosecution to take place the unauthorized disclosure had to threaten national security.
8.11.2006 1:45am
Kevin L. Connors (mail) (www):
Steve:

Harm to the country from the NSA leak would be much harder to establish in a court of law than it is on conservative blogs.

In all these exchanges, we have to get this straight: It is not the nation [country] which may or may not be harmed, but something far more transcendental; vital national interest.
8.11.2006 2:09am
c.f.w. (mail):
cathy:

The Pentagon Papers seems like a good example. From Clark Clifford's book, the bulk or all of the p. papers were historical analysis and not properly classified. But nothing in the 1978 legislation (if available when the p papers issue arose) would give an NYT lawyer any solid basis for saying this stuff is not properly classified.

No time limits are a problem. No discussion of what one normally sees in a commercail Non Disclosure Agreement (eg matters already in the public record). No affirmative standard that one must meet, as one sees in the Uniform Trade Secrets Act. Again, it looks like Rumsfeld can show up some day in the office and say hey, classify what I just said. No rhyme or reason.

Look at the heavily redacted Jawbreaker book about CIA activities in Afghanistan and tell me you cannot picture Rumsfeld et al classifying based on whims. The stuff that is allowed is extensive and shocking. The stuff excluded is described and seems of pretty doubtful importance.

Are we to have publication approval authorites for the NYT to talk to once they get the next set of p papers? Or are the next p papers just going to get published outside the US, say in Kuwait, Indi, China, Russia or Iran? The whole "let's forget the 1st Amendment and focus on treason" idea seems incredibly myopic.

Find me a list of 50 living US prosecutors who have treason or espionage convictions to their credit and I might say the "throw the book at them" idea is potentially workable. Otherwise, some other practical approach needs to be suggested.
8.11.2006 2:17am
Justin (mail):
There is no "vital national interest" in preventing embarrassment to a majority ruling party that is disdainful of the constitution and allergic to criticism.
8.11.2006 2:18am
Justin (mail):
If cathyf thinks that the administration actually follows said executive order, the administration has some prime real estate to sell you.
8.11.2006 2:19am
Dave in San Diego:
A point from an engineer.

People are wanting to quote portions of the First Amendment as the end all statement to protect the media. One must remember that this protection is against prior restraint, that is, the prevention of publication; that was most of what the Pentagon Papers was all about from the legal sense. In the NSA case and others, one should look at what can happen after the fact. I prefer to look at Near v Minnesota [283 U.S. 697 (1931)]. Though it dealt with prior restraint, here is an interesting portion of the ruling:

Every freeman has an [283 U.S. 714] 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.

The Duke of Wellington told Harriette Wilson to "Publish and be Damned." May we paraphrase the good Lord and tell the New York Times, the Washington Post, the Los Angeles Times and others: Publish and be Prosecuted and Convicted?

Remember, just from a poor engineer.
8.11.2006 3:41am
Greg D (mail):
In which situation would the US be better off:

1: The Abu Ghraib report wasn't leaked, and no one was able to attack the US over it.

2: The Abu Ghraib wsa leaked (i.e. what actually happened).

Not "which situation would be better for your preferred political party", but which would have had the US better off?

Who is the proper judge of that question? Elected officials, unelected judges, or members of the press and their editors?

If there's been even one leak on the GWOT that's actually helped the US, I can't think of what it is.

It may be that you don't give a damn about the US winning the GWOT. I consider such a victory vitally important. So do most Americans. It's not the job of judges to decide how we should fight a war. It's not the job of reporters to decide that, either.

It is the job of our elected officials to do that. Part of that job is keeping things hidden from our enemies. They can't do that w/o also keeping it hidden from us. Therefore, it's entirely appropriate for them to keep secrets from us. Which means it's entirely appropriate for them to punish criminals who reveal those secrets.

And that includes reporters and editors at the NY Times. Working for a newspaper does not put you above the law.
8.11.2006 5:51am
JonKatz5 (mail) (www):
Hi, all- Today's Underdog blog covers this topic at
http://www.markskatz.com/VirginiaCriminalLawyer.htm#11 .

I've provided an excerpt below; click the above link to find links to the statute, the court's opinion, the defense motion to dismiss, and coverage by Secrecy News. Jon

—-
Jon Katz
Criminal Defense Lawyer for MD, DC &VA
MARKS &KATZ, LLC
Silver Spring, MD 20910, (301) 495-4300
Underdog Defense Blog: http://www.markskatz.com/JusticeBlog.htm
The Bush Administration tries to intimidate future Daniel Ellsbergs, Deep Throats, and journalists who would print their disclosures.

Two former employees of the American Israel Public Affairs Committee (AIPAC) are being prosecuted for allegedly conspiring to transmit information relating to the national defense, in violation of 18 U.S.C. § 793(g). The case is U.S. v. Franklin, U.S. Dist. Ct. Crim. No. 1:05-cr-00225 (E.D. Va.). The gist of the case is that the two AIPAC defendants received purportedly classified information from a State Department employee cooperating with the Federal Bureau of Investigation, and passed the information to journalists and foreign officials. On August 9, Judge T.S. Ellis denied the AIPAC defendants' motion to dismiss the prosecution on such grounds as vagueness of this World War I-era statute and First Amendment protections.

Judge Ellis's opinion is lengthy as is the motion to dismiss. My initial brief review of this case scares me that the prosecution has not been dismissed for the statute's very vagueness (e.g., about what constitutes "information relating to the national defense") and violation of the First Amendment (gagging reporters from informing the public about the many otherwise cloaked injustices perpetrated by those that govern). This prosecution, if not dismissed on appeal or resolved by an acquittal, will chill future Daniel Ellsbergs, Deep Throats, and journalists who print their disclosures.

In June, I urged media courage in bringing the government's dastardly actions to light. It is time to repeal this law, which is 18 U.S.C. § 793(g).Thanks go to Secrecy News for covering this story. By Jon Katz.
8.11.2006 6:36am
Evelyn Blaine (mail):
I'm not happy about this result, for the same reasons as Jon Katz, but I'm not sure that it's clear that the Post and Times could be prosecuted for their disclosures under the standard in the opinion. The opening pages reject the facial challenge to the statute, but the last pages draw heavily on a Wilkinson concurring opinion, admitting that First Amendment rights are implicated, and then use a balancing test to evaluate the interests. It seems that a court would have to admit that information about government or private wrongdoing--or conduct that is at least very plausibly wrongdoing--is closer to the core of First Amendment concerns than the kind of ordinary military information the defendants received, and that its defense value might also be much less. Whether this would tip the balance would depend on the judge in question.

As for GregD's question,
In which situation would the US be better off:

1: The Abu Ghraib report wasn't leaked, and no one was able to attack the US over it.

2: The Abu Ghraib wsa leaked (i.e. what actually happened).
I personally have not the slightest doubt that the US is better off today for having had occasion to confront, directly and without evasion, such things as prisoner abuse, torture, secret prisons in violation of the laws of our allies, and executive defiance of FISA. Even those who, unlike me, think that these things are all or mostly acceptable practices, or only isolated incidents, have to concede that the very lengthy debates on their probity and legality are precisely the kind of "open, robust debate" that lies at the heart of a republican polity. Any(very speculative) harm to US military planning would be greatly outweighed by the positive effects of honest debate on our civic institutions.
8.11.2006 8:20am
Kevin P. (mail):
Evelyn Blaine:

I personally have not the slightest doubt that the US is better off today for having had occasion to confront, directly and without evasion, such things as prisoner abuse, torture, secret prisons in violation of the laws of our allies, and executive defiance of FISA.

What do you think of the disclosure of the SWIFT banking program?
8.11.2006 9:36am
noahpraetorius (mail):
Yep, without agreeeing with your premises, I have not the slightest doubt that the debate has been thoroughly dishonest.
8.11.2006 9:37am
Chris Bell (mail):
A hypothetical. Imagine that I read about a secret program in the NY Times. This information blatantly identifies itself as secret information that hurts the government.

My friend (who is the US ambassador from Iraq), has not read the story. I am suprised to learn this, and quickly repeat the story to him.

Under the criteria set out so far, I think I might be liable. This is clearly absurd, so there must be some sort of "retelling" exception. If people in government are leaking info to the papers, then I think they have the right to print it.

Common sense and the desire not to hurt the country unneccesarrily should be the only checks on this.
8.11.2006 10:47am
raj (mail):
This decision was a motion to dismiss, presumably on a 12(b)(6) motion. It may well be that the AIPAC members could be considered part of a conspiracy to surrepticiously transfer information that they knew to be confidential to a foreign power.

That's a bit different from press publication of confidential information, which is clearly not surrepticious.
8.11.2006 10:50am
Zaggs (mail):

and executive defiance of FISA.


Except the FISA court of Review said the FISA act could not encroach upon presidential power to order warrantless wiretaps to gather foreign intelligence.
8.11.2006 10:55am
Anderson (mail) (www):
What do you think of the disclosure of the SWIFT banking program?

Given that the agents using that data had already figured out that al Qaeda et al. were wise to the program and had altered their tactics accordingly ... not much.
8.11.2006 12:07pm
Bruce Hayden (mail) (www):
I don't look at Abu Ghraib as much here as I look at the NSA program leaks. Part of the Abu Ghraib scandal had already been exposed by the government itself prior to the mass disclosure and utter fixation on it a couple of months later.

Rather, the disclosure of the NSA programs has most likely compromised their effectiveness. That is one place where a balancing test most likely would result in secrecy, as we are still waiting for real victims of the programs to come forward and show real, credible, personal, harm from them.
8.11.2006 12:09pm
Greg D (mail):
I personally have not the slightest doubt that the US is better off today for having had occasion to confront, directly and without evasion, such things as prisoner abuse, torture, secret prisons in violation of the laws of our allies, and executive defiance of FISA.

The US was already dealing with the events of Abu Graib, no? Otherwise, where did the report come from?

How, exactly, did the US War Effort improve by revealing Abu Graib?

How is the US War Effort helped by having our secret anti-terrorist prisons revealed?

Oh, and "Anderson", exactly where did you learn of al Qaeda's behavior change? What is the evidence to support your claim (other than the self-interested bleatings of the people who dstroyed the program by reporting on it)?
8.11.2006 2:16pm
David Wangen (mail):
<blockquote>
A hypothetical. Imagine that I read about a secret program in the NY Times. This information blatantly identifies itself as secret information that hurts the government.

My friend (who is the US ambassador from Iraq), has not read the story. I am suprised to learn this, and quickly repeat the story to him.

Under the criteria set out so far, I think I might be liable.
</blockquote>

I would guess that the argument would be since the information was already _widely_ available (your friend could have just picked up a paper), your repeating of the information did not harm US Interests, even though the original revelations likely did.
8.11.2006 4:32pm
Colin (mail):
It may be that you don't give a damn about the US winning the GWOT.

Right there is where I stopped taking you seriously.
8.11.2006 5:05pm
MAW (mail):
In a NON-hypothetical query:

I am an inventor with lawfully-obtained information that I am aware is maximally classified (weapons / sensor system designs) and that I am not cleared for (I have no clearance whatsoever).

I briefly had excessively revealing information posted in a publicly readable place and was informed by a trusted (and highly cleared) person that the information must be removed and hidden for national-security reasons.

I am in a catch-22 ... I am not cleared to know about my own designs, nor can I talk about those designs with anyone cleared (because in any discussion or acknowledgement, they would be unlawfully confirming (revealing) classified information to me), nor can I approach non-cleared people with any of my major designs (anything worthwhile enough to get their attention). Contacting the relevant government agencies gets replies back varying between "we only want complete products" to "we are not publicly soliciting for X at this time".

My employer does no classified work (so no clearance application through that path) and I have been told (by that same highly-cleared family-friend that those defence contractor labs he's contacted about me strongly wanted to hire me until they found out that I have no clearance at all (the FBI's backlog for first-time clearences is apparently enormous since 9/11 ... companies do not want to have a security-paralyzed employee for years when they can hire someone straight out of the military with automatic clearances ... and I have a heart condition that ruled out military service.)

The best advice is probably "get a lawyer for proper advice" ... I cannot afford any lawyer (modest pay as an IT sysadmin for a smallish private company) much less a lawyer with the clearance to hear about anything specific I could talk about (or one who would keep me as a client when he would hear what part of DoE I've been dealing with).

I have been (badly) advised to a: publish (without regard for national security) or b: talk to headhunters (revealing only sysadmin experience = useless, minimally revealing designs = circular-file as crackpot, revealing enough of my designs to be not seen as a crackpot = serious violation of security) or c: send in my (uncensored) resume and design lists to the HR depts of DoD contractors (doubly bad: not only revealing classfied info but most won't even recognize the value due to their low clearances).

(Worse again ... I don't even know which of my designs are safe or not to discuss as I've been told that some of them are deployed non-publicly (not which ones specifically).)

I realize that this is a free-speech, revealing-classified info discussion and asking for legal advice on my catch-22 is out of place, but could someone at least indicate if they believe that I could get arrested under the espionage act for minimally revealing lawfully-obtained (self-generated) sensor/weapons-system designs to not-fully-cleared DoE, DoD, DARPA, USPTO or UnitedTech/LockMart/Raytheon people?

I'm rather out of good, neutral or mildly-bad options and I'm trying to decide between awful and horrible ... between talking publicly (dangerously) too much, trying to build something I'm not supposed to even know about or skipping directly to the end by pre-emptively contacting my local FBI office. (I've been told that going to the FBI is a truly worst-case option.)

PS: I'm an Asperger's autistic savant ... I see patterns in _things_ (but not people) ... hence my inventions ... but characteristically, I have essentially no in-person human contacts to turn to for advice (other than my parents who want me to publish everything so I can get credit on the assumption that the Chinese/Russians,EU have or will shortly have all of this anyhow). I would greatly appreciate it if anyone could suggest whom I can talk to (even if it is someone at the FBI) to get out of this catch-22.
8.11.2006 5:37pm
Evelyn Blaine (mail):
I'm deeply sceptical of the post listed under "MAW", but what the hell, even if it's a troll or a joke, I'll answer it. (Obligatory disclaimer: I am not a national security or First Amendment lawyer, and this should not be considered legal advice.) For what it's worth, the so-called "classified-at-birth" doctrine (i.e. that information is secret even if independently created by a source with no access to classified information) was traditionally to apply to only two things - nuclear weapons and cryptography. The latter exception is now, of course, dead, as any look at the thousands of people writing academic articles on the subject every year confirms. The first probably is too, after the collapse of the Progressive case. If you try to patent something of great national security value, the government can withhold the patent under 35 USC 181 and order you to keep quiet (although I don't know whether such orders have survived court challenge). If you just publish it, though, rather than applying for a patent, you're doing nothing illegal.
8.12.2006 5:27pm
gr (www):

That is one place where a balancing test most likely would result in secrecy, as we are still waiting for real victims of the programs to come forward and show real, credible, personal, harm from them.

So the thing with the NSA program is we're still waiting for more disclosures? Watch the EFF suit against AT&T then.
8.12.2006 6:22pm
MAW (mail):
Ms. Blaine, Thank you for answering despite your understandable skepticism ... my situation is neither joking nor trolling.

>after the collapse of the Progressive case

Where can I find some form of description of "the Progressive case" ... preferably with a summary for non-lawyers (My degree is in Physics, not jurisprudence).

Thanks for any help.

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8.14.2006 12:23pm