SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 13
February 7, 2011

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

ACCESSING WIKILEAKS VIOLATES ESPIONAGE ACT, USAF SAYS

Americans who have accessed the WikiLeaks web site may have violated the Espionage Act, under an extreme interpretation of the law advanced by Air Force officials last week.

Many government agencies have instructed their employees not to download classified materials from the WikiLeaks web site onto unclassified computer systems. The government's position is that although the material is in the public domain, its classification status is unaffected. Therefore, to preserve the integrity of unclassified systems, the leaked classified information should not be accessed on such systems. If it is accessed, it should be deleted.

But on February 3, Air Force Materiel Command (AFMC) at Wright-Patterson Air Force Base issued startling new guidance stating that the leaked documents are protected by the Espionage Act and that accessing them under any circumstances is against the law, not simply a violation of government computer security policy.

"According to AFMC's legal office, Air Force members -- military or civilian -- may not legally access WikiLeaks at home on their personal, non-governmental computers, either. To do so would not only violate the SECAF [Secretary of the Air Force] guidance on this issue,... it would also subject the violator to prosecution for violation of espionage under the Espionage Act," the AFMC legal office said.

Then, in an astounding interpretive leap, the AFMC went on to say that similar prohibitions apply to the relatives of Air Force employees.

"If a family member of an Air Force employee accesses WikiLeaks on a home computer, the family member may be subject to prosecution for espionage under U.S. Code Title 18 Section 793."

This is a breathtaking claim that goes far beyond any previous reading of the espionage statutes.

"That has to be one of the worst policy/legal interpretations I have seen in my entire career," said William J. Bosanko, director of the Information Security Oversight Office, by email.

If taken seriously for a moment, the AFMC guidance raises a host of follow-on questions. What if a family member accessed WikiLeaks on a computer outside the home? What if a non-family member accessed WikiLeaks on the home computer? What if one learns that a neighbor has accessed WikiLeaks in the neighbor's home? Is the Air Force employee obliged to intervene or to report the violation to authorities? And how could any of this possibly be constitutional?

Since the AFMC guidance is not based in existing case law or past practice, these questions have no immediate answers.

Last December, a Department of Homeland Security official complained to Secrecy News that government policy on WikiLeaks produced the incongruous result that "my grandmother would be allowed to access the cables but not me." But if the new Air Force guidance can be believed, this is incorrect because the official's grandmother would be subject to prosecution under the Espionage Act.

In reality, there does not seem to be even a remote possibility that anyone's grandmother would be prosecuted in this way.

Instead, ironically enough, the real significance of the new AFMC guidance could lie in its potential use as evidence for the defense in one of the pending leak prosecutions under the Espionage Act. Defendants might argue that if the Espionage Act can be seriously construed by Air Force legal professionals to render a sizable fraction of the American public culpable of espionage, then the Act truly is impermissibly broad, vague and unconstitutional.

For a standard view of the general subject see "The Protection of Classified Information: The Legal Framework," Congressional Research Service, January 10, 2011:

STEPHEN KIM LEAK DEFENSE CITES OVERCLASSIFICATION

"The government routinely overclassifies information," so the mere fact that something is classified is not sufficient to establish that its unauthorized disclosure is prohibited by law, according to a defense motion that was filed last week in the case of former State Department contractor Stephen Kim. Mr. Kim was accused under the Espionage Act of leaking classified information to a news reporter, reportedly concerning North Korth's nuclear test program.

"There is no better evidence of this gross overclassification than this very case," the January 31 defense motion said. "Even though the news media has reported extensively on this case, including reporting on the name of the 'foreign country' it believes is at issue..., the prosecution claims that the name of that 'foreign country' is classified."

"Because the system of classification is an imperfect one, the court cannot simply interpret [the espionage statutes] to provide adequate constitutional notice any time the matter at hand pertains to a government employee alleged to have leaked classified information," the defense said in its motion to dismiss the charges against Mr. Kim.

Defense attorneys also argued that "leaking is widespread and has become an essential tool that is frequently employed by officials at every level of government." Yet prosecutions for leaking are comparatively rare, thereby resulting in "arbitrary and discriminatory enforcement."

Perhaps the most interesting and original legal argument presented by the defense is that the use of the Espionage Act to punish unauthorized disclosures of classified information is an improper attempt to expand the definition of treason, whose scope is strictly limited by the Constitution.

The defense explained in a separate January 31 motion that the framers of the Constitution, who were themselves "traitors" against the British, deliberately chose to limit the definition of political crimes against the nation to "levying war against [the United States], or... adhering to their Enemies, giving them Aid and Comfort." This definition of treason excluded other types of political actions against the government. In particular, the defense argued, it meant that acts of speech against the government could not be punished as treason.

"Today we typically look to the First Amendment to protect the freedom of speech, but the Framers of the original Constitution expected the Treason Clause to do some heavy lifting on that front, particularly because the First Amendment... was not added to the Constitution until later."

What is happening now, the defense said, is that "the government has taken conduct it alleges to have injured the state [namely leaking] and squeezed it into a successor statute [the Espionage Act] that punishes treason under a different name, but without providing Mr. Kim with the substantive and procedural guarantees that he is entitled to under the Constitution" in a case of treason, such as a requirement for the government to produce two witnesses to the alleged crime.

Mr. Kim is represented by Abbe D. Lowell and his colleagues at McDermott Will & Emery. Government responses to the defense motions are due March 2.

CIA VIEWS RUSSIAN CONCERNS OVER IRAN'S SPACE PROGRAM

Russian experts are persuaded that Iran's space program is serving to advance development of intercontinental ballistic missiles that could be used against targets throughout the Middle East and Russia, according to a CIA review of open source reporting.

"Over the past year Moscow appears to have become more worried about the security implications of assisting Tehran with the further development of its space capability," the November 2010 CIA report said.

The CIA document was first reported by Bloomberg News ("Russian Scientists Worried Iran Uses Their Know-How for Missiles" by Roxana Tiron and Anthony Capaccio, February 3). A copy was obtained by Secrecy News. See "Russia: Security Concerns About Iran's Space Program Growing," CIA Open Source Works, November 16, 2010:

In Tehran today, Iranian officials displayed four new prototype satellites that they said would be launched in the near future.

POLITICAL TRANSITION IN TUNISIA, AND MORE FROM CRS

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

"Political Transition in Tunisia," February 2, 2011:

"National Security Letters: Proposals in the 112th Congress," February 1, 2011:

"Murder or Attempted Murder of a Member of Congress and Other Federal Officials and Employees: Implications in Federal Criminal Law and Procedure of Events in Tucson," January 25, 2011:

"The U.S. Foreign-Born Population: Trends and Selected Characteristics," January 18, 2011:

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

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