SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 97
December 8, 2010

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

PUBLISHING CLASSIFIED INFO: A REVIEW OF RELEVANT STATUTES

"There appears to be no statute that generally proscribes the acquisition or publication of diplomatic cables," according to a newly updated report from the Congressional Research Service, "although government employees who disclose such information without proper authority may be subject to prosecution."

But there is a thicket of statutes, most notably including the Espionage Act, that could conceivably be used to punish unauthorized publication of classified information, such as the massive releases made available by Wikileaks. See "Criminal Prohibitions on the Publication of Classified Defense Information," December 6, 2010:

The updated CRS report sorts through those statutes, provides an account of recent events, presents a new discussion of extradition of foreign nationals who are implicated by U.S. law, and summarizes new legislation introduced in the Senate (S. 4004).

A previous version of the CRS report, issued in October, was cited by Sen. Dianne Feinstein in a Wall Street Journal op-ed yesterday in support of prosecuting Wikileaks, though the report did not specifically advise such a course of action. Sen. Feinstein also seemed to endorse the view that the State Department cables being released by Wikileaks are categorically protected by the Espionage Act and should give rise to a prosecution under the Act.

But the Espionage Act only pertains to information "relating to the national defense," and only a minority of the diplomatic cables could possibly fit that description.

The new CRS report put it somewhat differently: "It seems likely that most of the information disclosed by WikiLeaks that was obtained from Department of Defense databases [and released earlier in the year] falls under the general rubric of information related to the national defense. The diplomatic cables obtained from State Department channels may also contain information relating to the national defense and thus be covered under the Espionage Act, but otherwise its disclosure by persons who are not government employees does not appear to be directly proscribed. It is possible that some of the government information disclosed in any of the three releases does not fall under the express protection of any statute, despite its classified status."

Incredibly, CRS was unable to meaningfully analyze for Congress the significance of the newest releases because of a self-defeating security policy that prohibits CRS access to the leaked documents.

The CRS report concludes that any prosecution of Wikileaks would be unprecedented and challenging, both legally and politically. "We are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship."

For our part, we would oppose a criminal prosecution of Wikileaks under the Espionage Act.

CRS SEEKS GUIDANCE ON USING LEAKED DOCS

After its access to the Wikileaks web site was blocked by the Library of Congress, the Congressional Research Service this week asked Congress for guidance on whether and how it should make use of the leaked records that are being published by Wikileaks, noting that they could "shed important light" on topics of CRS interest.

CRS "has informed our House and Senate oversight committees, and solicited their guidance, regarding the complexities that the recent leaks of classified information present for CRS," wrote CRS Director Daniel Mulhollan in a December 6 email message to all CRS staff. "I have also contacted the majority and minority counsels of select committees in the House and Senate requesting guidance on the appropriate boundaries that CRS should recognize and adhere to in summarizing, restating or characterizing open source materials of uncertain classification status in unclassified CRS reports and memoranda for Congress."

"Our challenge is how to balance the need to provide the best analysis possible to the Congress on current legislative issues against the legal imperative to protect classified national security information. This is especially a problem in light of the massive volume of recently released documents, which may shed important light on research and analysis done by the Service," Mr. Mulhollan wrote.

"As guidance becomes available from Congress, I will follow-up with additional information. At present, it seems clear that the republication of known classified information by CRS in an unclassified format (e.g., CRS reports or congressional distribution memoranda) is prohibited. We believe this prohibition against the further dissemination of classified information in an unclassified setting applies even if a secondary source (e,g., a newspaper, journal, or website) has reprinted the classified document. The laws and applicable regulations are decidedly less clear, however, when it comes to referencing and citing secondary sources that refer to, summarize, or restate classified information."

A copy of Mr. Mulhollan's email message was obtained by Secrecy News.

INTELLIGENCE AND BORDER SECURITY, AND MORE FROM CRS

Noteworthy new products from the Congressional Research Service include the following.

"Securing America's Borders: The Role of the Intelligence Community," December 7, 2010:

"Hamas: Background and Issues for Congress," December 2, 2010:

"U.S.-Australia Civilian Nuclear Cooperation: Issues for Congress," December 1, 2010:

"Intelligence Estimates: How Useful to Congress?," November 24, 2010:

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

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