SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 39
April 28, 2011

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

GRAND JURY MAY BE INVESTIGATING WIKILEAKS

A grand jury has been empaneled in the Eastern District of Virginia to investigate a possible violation of the Espionage Act involving the computer-based acquisition of protected government information concerning national defense or foreign relations. In other words, the Grand Jury seems to be investigating WikiLeaks.

A summons to appear before the Grand Jury on May 11 was served on an unidentified recipient in Cambridge, MA, as reported by Glenn Greenwald of Salon.com, who also posted a copy of the document. See "FBI serves Grand Jury subpoena likely relating to WikiLeaks," April 27:

The initial hurdle to any possible prosecution of WikiLeaks is to identify a specific crime that it may have committed.

The subpoena suggests that the path chosen by prosecutors (as predicted) is to allege a conspiracy to violate the Espionage Act under 18 USC 793(g). But like much of the Espionage Act, the practical meaning of this statute is quite unclear. So is its application here, beyond the bare implication that WikiLeaks instigated the unlawful transfer of information in a manner that is not protected by freedom of the press.

As things stand, everyone agrees that information gained by committing a crime is not protected by the First Amendment. One cannot expect to break into a building to steal documents and publish them, and then invoke freedom of the press.

But what constitutes a crime? Is it asking a question about a topic that one knows to be classified? Buying someone lunch in the hope that he may divulge closely held information? Indicating a willingness and a capacity to receive unauthorized disclosures confidentially? These would hardly seem to qualify as criminal acts since they are ordinary conventions of national security reporting.

What makes this case both important and dangerous is that by pursuing this line of attack, the reported Grand Jury investigation of WikiLeaks may "clarify" such speculative matters, thereby generating new limitations on freedom of the press.

ATTORNEY CHALLENGES "GAG ORDER" ON WIKILEAKS DOCS

The ongoing release of another large collection of classified documents by WikiLeaks concerning Guatanamo detainees creates a new set of challenges and opportunities for the detainees' attorneys. But the government says the attorneys cannot discuss those matters in the public domain, even though anyone else can.

Attorney David Remes petitioned a court yesterday to release him from all such restrictions regarding publicly available WikiLeaks documents. His petition was posted by Ben Wittes of Lawfare blog:

It was also reported by Scott Shane in the New York Times today, and discussed by Marcy Wheeler at EmptyWheel.

The petition argues that not only are continuing controls on publicly available information futile, they are unjust. That is, they inhibit the attorney's ability to act in the best interests of his clients by correcting errors or identifying exculpatory factors.

A response by the government will follow.

RESTRICTIONS ON USE OF WIKILEAKS HAMPER CRS

Restrictions on the use of published WikiLeaks material remain in effect in much of the government, the New York Times reported yesterday, causing considerable confusion and frustration. See "Detainees' Lawyers Can't Click on Leaked Documents" by Scott Shane, April 27:

"Add me to the list of grumblers," said a respected national security analyst at the Congressional Research Service, where employees have been prohibited from accessing WikiLeaks documents online.

"This whole thing is so [expletive] stupid," he said yesterday. "Even staff with clearances can't read the cables, let alone quote them. One reason is that we can't read classified materials on unclassified computers and we have no classified computers."

"We can now quote news stories which cite the cables, but we have no way of verifying whether the article correctly quotes the cables."

"This is hampering CRS work and management knows it," the analyst said. "There's just no leadership on this issue."

THE COSTS OF WAR, AND MORE FROM CRS

As of March 2011, Congress had approved a total of more than $1.2 trillion dollars for costs associated with the wars in Iraq, Afghanistan and other post-9/11 "war on terror" operations, the Congressional Research Service said in its most recent update on the subject. See "The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11," March 29, 2011:

Other new or newly updated CRS reports include the following.

"Afghanistan Casualties: Military Forces and Civilians," April 6, 2011:

"The Federal Bureau of Investigation and Terrorism Investigations," April 27, 2011:

"U.S. Special Operations Forces (SOF): Background and Issues for Congress," March 28, 2011:

"Sensitive Covert Action Notifications: Oversight Options for Congress," April 6, 2011:

"Covert Action: Legislative Background and Possible Policy Questions," April 6, 2011:

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

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