SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 83
October 1, 2003

NOT ALL LEAKS OF CLASSIFIED INFORMATION ARE CRIMES

The current controversy over a suspected Bush Administration leak of the name of an under cover CIA officer has inevitably been accompanied by false or misleading claims, including erroneous descriptions of the requirements of the laws on classified information.

A September 26 story from NBC News/MSNBC was the first to report that the CIA had asked the Justice Department to investigate the leak. Along the way, the story stated:

"Revealing the identities of covert officials is a violation of two laws, the National Agents' Identity Act and the Unauthorized Release of Classified Information Act."

This is a mistake. The proper name of the relevant law is the Intelligence Identities Protection Act. There is no such law called the Unauthorized Release of Classified Information Act.

And it's a good thing, too. The NBC story "made it sound as if we already had an Official Secrets Act in this country," leaker par excellence Daniel Ellsberg told Secrecy News.

A congressional measure to legislate a generalized statutory prohibition against unauthorized disclosures of any classified information was vetoed by President Clinton on November 4, 2000 in response to widespread opposition from media outlets, civil liberties organizations and others.

But the misapprehension persists. Thus, according to a front-page story in the Washington Post today:

"There are two federal statutes that could make the disclosure of a covert CIA employee's identity a crime. One concerns unauthorized disclosure of classified information, and the other specifically protects the identity of intelligence officers."

Again, there is no generalized statute prohibiting unauthorized disclosure of classified information.

Attorney General Ashcroft put it this way in his 2002 report to Congress on leaks:

"It must be acknowledged that there is no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information irrespective of the type of information or recipient involved."

PAST PROSECUTIONS UNDER THE INTEL IDENTITIES ACT

Speaking of errors, Secrecy News mistakenly advanced the notion that there has never been a prosecution involving the Intelligence Identities Protection Act of 1982, which prohibits the unauthorized disclosure of the identities of "covert agents."

In fact, there has been at least one prosecution under the Act, in the course of an espionage proceeding.

It was the 1985 prosecution of Sharon M. Scranage, a CIA employee who was charged with disclosing agent identities to Ghanaian intelligence officials and who pled guilty to two counts under the Intelligence Identities Protection Act. (Thanks to Paul Wolf for pointing this out.) See (scroll down to middle of the page):

A COURT VIEWS THE REPORTER'S PRIVILEGE

While the rights and responsibilities of reporters are the subject of current controversy, a D.C. District Court has issued a new decision that elucidates the subject of the "reporter's privilege."

"Under the First Amendment, reporters enjoy a qualified privilege against compelled disclosure of sources and information obtained through news gathering activities," the Court observed.

"The privilege is not absolute, however, and may be abrogated upon sufficient showing by the party seeking the information."

The decision came in the matter of Linda Tripp, who sought to overcome the reporter's privilege that had been asserted by the Pentagon newspaper Stars and Stripes. The Court upheld the reporter's privilege at this stage. See the text of the 28 page ruling dated September 30 here:

SECRET DETAINEE CASE PRESENTED TO SUPREME COURT

Several civil liberties groups have filed a petition with the U.S. Supreme Court asking it to review an appeals court decision that authorized the withholding of the identities of hundreds of persons who were detained in the aftermath of September 11.

"It is the responsibility of the courts - and particularly this Court - to provide meaningful judicial review when the Government invokes national security to justify unprecedented secrecy in exercising its awesome power to arrest and detain hundreds of people," the groups wrote in their petition for writ of certiorari in the case Center for National Security Studies, et al, v. U.S. Department of Justice.

The appeals court decision, which denied access to the requested information concerning the secret detainees, also significantly expanded the doctrine of judicial deference to the executive branch, to the detriment of the FOIA process.

A copy of the petition to the Supreme Court is posted here:

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

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