SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 85
October 3, 2003

LEAKS AND THE ESPIONAGE ACT

The Washington Post continues to report incorrectly that the unauthorized disclosure of classified information is a violation of federal statute.

"The act of identifying [undercover CIA officer Valerie] Plame could be a felony violation of the 1982 Intelligence Identities Protection Act, which shields covert operatives, as well as portions of the 1917 Espionage Act, which forbids the unauthorized release of classified information," the Post reported today.

See "If the Secret's Spilled, Calling Leaker to Account Isn't Easy," October 3:

But does the 1917 Espionage Act "forbid the unauthorized release of classified information"? Not exactly.

What it does do is prohibit disclosure of several narrowly defined categories of information -- having to do with codes, ciphers, and communications intelligence. It does not mention intelligence identities or many other diverse forms of classified information. See 18 USC 798 on "Disclosure of classified information" here:

The Espionage Act also prohibits under certain conditions the unauthorized disclosure of "defense information," which includes much, but far from all classified information. The one and only conviction of a leaker [of classified information] to the media, Samuel L. Morison, resulted from the compromise of such "defense information." See 18 USC 793 on "Gathering, Transmitting, or Losing Defense Information" here:

As previously noted, Congress enacted a general provision to criminalize all leaks of any type of classified information in 2000, precisely because such a prohibition did not exist, notwithstanding the Morison precedent. But President Clinton vetoed it on November 4, 2000:

Consequently, it seems clear, there is no universal statutory prohibition in the Espionage Act or any other statute that "forbids the unauthorized release of classified information."

The same Post story erroneously reported that "two government employees have ... been convicted of providing classified information to the media," citing "a recent Justice Department review of leak investigations and court records."

In fact, there has been only one such conviction [involving classified information], that of Samuel Morison. The second case cited in the Post story, that of former DEA employee Jonathan Randel, involved restricted but unclassified information.

It hardly needs to be said that these kinds of errors are easy to make and completely forgivable. (Secrecy News makes an average of one error per issue -- usually trivial, but caveat lector.)

On the other hand, such errors ought to be corrected.

HPSCI AND DCI TENET EXCHANGE LETTERS

The Washington Post last week obtained a letter from the chairman and the ranking member of the House Intelligence Committee criticizing the quality of U.S. intelligence concerning Iraq. It was reported on September 28.

Despite the attention-commanding front page story, reported by Dana Priest, the House Intelligence Committee refused to disclose a copy of the letter. "It has not been approved for release," a Committee spokesman said.

To the Post's credit, it has now placed the text of the letter on its web site for all to see:

The letter elicited a scolding, rather condescending reply from Director of Central Intelligence George Tenet, which the Post also helpfully made available:

These are key documents illuminating the present state of official thinking, such as it is, on the adequacy of U.S. intelligence on Iraq.

THE KAY STATEMENT

An "interim progress report" on the search for banned weapons of mass destruction in Iraq revealed no stockpiles of such weapons, though it did cite "rudimentary" traces of weapons programs, concealed equipment, and so forth.

"Why are we having such difficulty in finding weapons or in reaching a confident conclusion that they do not exist or that they once existed but have been removed?" The statement offered several reasons, including Iraqi denial and deception.

See a copy of the unclassified statement, presented by David Kay and made available by the CIA, here:

MORE LEGISLATION TO FIX THE PATRIOT ACT

Bipartisan dissatisfaction with the USA Patriot Act continues to grow, yielding multiple, overlapping initiatives to correct, amend or revise the Act.

The "Reasonable Notice and Search Act" (S. 1701), introduced by Sen. Russ Feingold (D-WI) would modify the Patriot Act's "sneak and peek" provision, which permits delayed notification of search and seizures. See:

The "Safety and Freedom Ensured (SAFE) Act" (S. 1709), introduced by Sen. Larry Craig (R-ID) and several colleagues, would limit roving wiretaps under the Patriot Act, curtail delayed notification of searches, and increase privacy protection for library users and others. See:

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

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