SECRECY NEWS
from the FAS Project on Government Secrecy
September 4, 2001

ANTI-LEAK LAW COULD MAKE CRIMINALS OF MANY

The proposal in Congress to make unauthorized disclosures of classified information a felony could ensnare journalists as well as many ordinary citizens in a web of criminality. Henceforward they could be liable for inciting a felony if they knowingly solicit disclosure of classified information from anyone who is not officially authorized to disclose it.

This appears to be an unintended consequence of the crudely drafted "anti-leak" legislation. Senator Richard Shelby, one of the few identifiable proponents of the pending proposal, stressed last year that it is unlike Britain's Official Secrets Act because it would target only the leakers. It "criminalizes the actions of persons who are charged with protecting classified information, not those who receive or publish it."

In an initial response to this claim, critics have noted that journalists would often be the best or only witnesses to the crime of leaking, and would therefore be subject to interrogation under subpoena by investigators seeking to identify their sources.

In fact, however, journalists are far more than witnesses because they are far more than passive conduits of information. In the normal course of business, a reporter actively elicits information.

And if the act of disclosure is a felony, then "incitement" to disclose may also be a crime. Yet every good national security reporter, and many a concerned citizen, is engaged in such "incitement" practically every day.

In criminal law it's called being an "accessory before the fact," observed former CIA analyst Allen Thomson, a critic of the pending proposal. He pointed to a law dictionary definition which explained that "an accessory before the fact is one whose counsel or instigation leads another to commit a crime."

Thus, contrary to Sen. Shelby's assurance, criminalizing disclosure of classified information has legal ramifications that go far beyond the leaker.

The relevant statutes include 18 USC 2 which dictates that: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." This means that both the leaker and the one who elicited the leak could wind up in jail.

Even the passive recipient of a leak could be in trouble if he doesn't immediately alert the authorities, according to 18 USC 4 ("Misprision of felony"): "Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both."

And while formally accredited journalists enjoy some tenuous consideration from Justice Department investigators (or at least they did until the recent subpoena of an Associate Press reporter's phone records), no such consideration is promised to other Americans who wish to participate in deliberations over national security policy.

Such concerns are among the many issues that are unlikely to be satisfactorily addressed in the hasty Senate Intelligence Committee hearing scheduled for Wednesday September 5 to consider the anti-leak proposal.

SIGMA 16 CLASSIFICATION CATEGORY PENDING

The Department of Energy and the Department of Defense have approved the creation of a new classification category called Sigma 16 that will pertain to particularly sensitive details of nuclear weapons design. It is expected to come into effect later this year.

The arrival of Sigma 16 was heralded by an article in the Washington Post on August 31:

But as if to illustrate the widespread confusion about the complex inner workings of the classification system, the Post story got a number of things wrong.

"Technically, Sigma 16 will be a sub-group of sensitive compartmented information, or SCI," the Post ventured. That is not correct.

SCI refers to information that is derived from intelligence sources and methods. It is protected under procedures established by the Director of Central Intelligence. In contrast, Sigma 16, like other nuclear weapons design information, has no intrinsic relation to intelligence and is protected under the Atomic Energy Act.

"The new [Sigma 16] classification appears to be an outgrowth of the Wen Ho Lee case," the Post reported. But this is pure invention. Sigma 16, which would entail increased protection for certain information, emerged from former Energy Secretary Hazel O'Leary's "higher fences" initiative back in 1997 and even earlier.

Currently, information on the design, manufacture and utilization of nuclear weapons is broken down into 15 so-called Sigma categories. The present definitions of these categories, as well as that of the pending Sigma 16, may be found here:

The December 2000 report of the Joint Policy Group for the Protection of Nuclear Weapons Design and Use Control Information, which specifically recommended creation of Sigma 16, may be found here:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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