SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 23
March 22, 2010

Secrecy News Blog: http://www.fas.org/blog/secrecy/

JUDGE: IF YOU LEAK CLASSIFIED INFO, TAKE THE CONSEQUENCES

Leaking classified information to an unauthorized person may be the right thing to do in certain circumstances, suggested Judge T.S. Ellis, III of the Eastern District of Virginia in a newly released hearing transcript from last year. In particular, he said, leaking may be an acceptable move if the leaker accepts full responsibility for his actions.

Ordinarily, disclosing classified information to an unauthorized person is deemed unethical, if one has signed a non-disclosure agreement not to do so. It may also be illegal, if the classified information falls within certain categories whose unauthorized disclosure is proscribed by law (including communications intelligence-related information, identities of covert agents, nuclear weapons design information, and "national defense information").

"Whistleblowing" in itself is not an adequate rationale for leaking classified information, Judge Ellis said. "Simply because you believe that something that's going on that's classified should be revealed to the press and to the public, so that the public can know that its government is doing something you think is wrong, that doesn't justify [publicly disclosing] it.... Noble motives don't erase the violation."

However, he said, "you may want to go ahead and do it [anyway], but you have to stand up and take the consequences."

"I don't have a problem with people doing that if they are held accountable for it," Judge Ellis said. "One might hope that, for example, someone might have the courage to do something that would break the law if it meant they're the savior of the country. But then one has to take the consequences, because the rule of law is so important."

"Disclosing it was okay if the person is willing to stand up and say, 'I did it. Give me the consequences'."

Judge Ellis spoke at a June 11, 2009 hearing on the reduction of the sentence for Lawrence A. Franklin, who was convicted of disclosing classified information to two officials of the American Israel Public Affairs Committee, Steven Rosen and Keith Weissman, who were themselves charged with unauthorized receipt and disclosure of classified information. The controversial case against them was abandoned by the government last year. Based on his cooperation with prosecutors, Mr. Franklin sought and received a reduction in his own 12-year prison sentence to probation and ten months in "community confinement."

In addition, Mr. Franklin was ordered to spend 100 hours "giving talks to young people" about the need to protect classified information. "What I want you to speak to these young people about, Mr. Franklin, is the rule of law and the obligation that public officials have and the importance of classified information," Judge Ellis explained. "Secrets are important to a nation. If we couldn't keep our secrets, we would be at greater risk.... And I am going to ask that a probation officer send me copies of your lectures on this subject."

Mr. Franklin is the second person convicted of unauthorized disclosure of classified information in a non-espionage case. The first was Samuel L. Morison, who was convicted of providing classified intelligence photographs to Jane's Defence Weekly in 1985. The third conviction, still pending, is that of Shamai Leibowitz, a former FBI translator who pled guilty last December to the unauthorized disclosure of five classified documents to a blogger. Prosecutors specifically acknowledged Mr. Leibowitz's "affirmative acceptance of personal responsibility for his criminal conduct."

The transcript of Mr. Franklin's June 2009 sentence hearing was finally prepared last week. A copy was obtained by Secrecy News and posted on the website of the Federation of American Scientists.

THE FIRST AMENDMENT AND "NEWSGATHERING CRIMES"

It might be pleasant for writers and publishers to suppose that First Amendment principles of freedom of speech and freedom of the press are absolute and will prevail in every circumstance. But that is clearly not the case.

For one thing, the Supreme Court has specifically excluded obscenity, child pornography, and certain other forms of communication from First Amendment protections. See "Freedom of Speech and Press: Exceptions to the First Amendment," Congressional Research Service, updated October 16, 2009:

Moreover, courts have repeatedly upheld the constitutionality of prohibitions in the Espionage Act against the unauthorized disclosure of certain types of classified information (most recently in a 2006 ruling in the AIPAC case, USA v. Rosen and Weissman).

The intersection of national security law and ordinary newsgathering remains a bit murky, and is contested in some quarters even where it is fairly clear. Although "the right of the press to publish confidential information is well established, [t]here is... a paucity of constitutional doctrine protecting newsgathering activities that seek the leaking of confidential information," according to a recent law review article.

"Ethics codes for news organizations state that reporters must not commit crimes such as trespassing or stealing information but are silent on inchoate crimes such as solicitation," wrote Prof. William E. Lee of the University of Georgia last year. "And while news organizations have elaborate rules about relations with confidential sources, they do not address the propriety of promising confidentiality as an inducement to the disclosure of classified information."

"Although there are practical and political difficulties in prosecuting reporters for solicitation or conspiracy, there is little First Amendment precedent in support of the argument that reporters should be exempt from generally applicable criminal laws." See "Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes" by William E. Lee, American Journal of Criminal Law, vol. 36, no. 2, Spring 2009 (not online).

The longstanding conflict over press publication of national security information is revisited in the forthcoming book "Necessary Secrets" by Gabriel Schoenfeld (Norton Books, May 2010).

BOOK: THE IRAQ PAPERS

An extensive compilation of official documents, policy advocacy statements, and assorted commentary on the U.S. decision to go to war in Iraq in 2003 is presented in "The Iraq Papers," a new book from Oxford University Press.

Since it seems that there will be no new official reckoning of the Iraq war or other Bush Administration policy choices, it will be left to others to achieve their own understanding of the Bush era and its aftermath. "The Iraq Papers" provides one possible documentary starting point.

"The decision to invade Iraq launched a new doctrine of preemptive war, mired the American military in an intractable armed conflict, disrupted world petroleum supplies, cost the United States billions of dollars, and damaged or ended the lives of hundreds of thousands of Americans and Iraqis," the book states.

The book editors are not overly perplexed by these events. Somewhat heavy-handedly, they offer their own interpretation of events involving the decisive influence of neo-conservatives, the unitary executive, and a U.S. drive to global hegemony, among other factors. Alternative explanations are not considered here.

See "The Iraq Papers," edited by John Ehrenberg, J. Patrice McSherry, Jose Ramon Sanchez, and Caroleen Marji Sayej, Oxford University Press, January 2010:

HOMELAND SECURITY INTELLIGENCE

An updated description of the intelligence function of the Department of Homeland Security was produced last week by the Congressional Research Service. See "The Department of Homeland Security Intelligence Enterprise: Operational Overview and Oversight Challenges for Congress," March 19, 2010:

"Homeland Security Intelligence: Its Relevance and Limitations" was the topic of a March 18, 2009 hearing of the House Homeland Security Committee, the record of which was published last month.

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

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