SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 75
August 4, 2011

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

IS UNAUTHORIZED RECEIPT OF CLASSIFIED INFO A FELONY?

Could the unauthorized receipt of classified information be a felony? Judge Leonie M. Brinkema made that startling claim in passing in a July 29 memorandum opinion in the case of suspected leaker Jeffrey Sterling that was unsealed yesterday. But her statement is almost certainly a misunderstanding and a misrepresentation of the law.

Judge Brinkema's memorandum opinion, first reported and released by the New York Times, was written to substantiate an order issued last week that limited the scope of testimony of Times reporter James Risen in the upcoming trial of Mr. Sterling, and excused Mr. Risen from identifying his source, who the prosecution says was Mr. Sterling. The newly released opinion affirmed the existence of a qualified reporter's privilege which protects a journalist's confidential relations with a source under some circumstances.

But astonishingly, in her explanation of why certain remarks previously made by Mr. Risen to a third party would not be considered hearsay and could be admitted at trial, Judge Brinkema wrote (at page 25):

This seems quite wrong. The espionage statutes including 793(e) are notoriously ambiguous and susceptible to multiple, conflicting interpretations, but no one has ever read them as Judge Brinkema did. Section 793(e) deals with unauthorized transmission of classified information; contrary to her assertion, it does not prohibit unauthorized receipt at all.

Judge Brinkema offered further support for her claim: "see U.S. Sentencing Guidelines Manual [section] 2M3.3 (providing a base offense level 29 for convictions for the 'Unauthorized Receipt of Classified Information.')," she wrote.

But upon inspection, that citation does not hold up either. Section 2M3.3 provides sentencing guidelines for multiple statutes (18 USC 793d, e, and g; 18 USC 798; and 50 USC 783), one of which -- 50 USC 783b -- does indeed concern unauthorized receipt of classified information.

But that one applies only to agents or representatives of a foreign government, or to members of a Communist organization.

In other words, unless Mr. Risen is a foreign agent or a Communist, there is no statute that specifically prohibits him from receiving classified information without authorization. There just isn't.

(Footnote 6 of the new opinion adds: "The government clearly recognizes Risen's potential exposure to criminal liability and has offered to obtain an order of immunity for him." The nature of the supposed criminal liability or the proposed immunity was not spelled out. Nor, of course, has Mr. Risen actually been charged with any offense.)

Judge Brinkema got it wrong, I believe. That can happen. The point is incidental to her larger argument, but unfortunately it adds new confusion to an area of the law that is already complicated and contested. Ideally, one hopes that she would see fit to correct the record.

OLC OPINION NOTES ROLE FOR CONGRESS IN CLASSIFICATION

A newly disclosed opinion of the Department of Justice Office of Legal Counsel (OLC) concludes that if information gathered in the course of surveillance under the Foreign Intelligence Surveillance Act (FISA) is used to revoke an individual's security clearance, then that individual is generally entitled to receive notice of the information that was used against him -- unless the information is subject to executive privilege.

The June 3, 2011 opinion also briefly addresses the subject of congressional involvement in classification policy and allows for a carefully hedged role for Congress.

"We agree with the FBI that the President's constitutional authority to classify information concerning the national defense and foreign relations of the United States and to determine whether particular individuals should be given access to such information 'exists quite apart from any explicit congressional grant'...," wrote Caroline D. Krass, then the acting head of the Office of Legal Counsel.

"But that does not imply that Congress entirely lacks authority to legislate in a manner that touches upon disclosure of classified information," she added.

"For example, we believe Congress's authority to regulate foreign intelligence surveillance under FISA, and to regulate the terms of federal employment, does, as a general matter, permit Congress to impose the notification requirement [when FISA-derived information is used in other legal proceedings], even when that requirement reaches proceedings concerning security clearance revocations," she wrote.

This does not really break any new ground in classification policy or politics. Nor does it exhaust the subject of congressional authority with respect to classified information. But it is noteworthy to have it re-stated publicly and officially nevertheless.

FEDERAL SUPPORT FOR ACADEMIC RESEARCH, AND MORE FROM CRS

Recent reports from the Congressional Research Service that have not been made readily available to the public include the following.

"Federal Support for Academic Research," June 17, 2011:

"Financial Aid for Students: Print and Web Guides," June 24, 2011:

"Patent Reform in the 112th Congress: Innovation Issues," June 30, 2011:

"Congressional Nominations to U.S. Service Academies: An Overview and Resources for Outreach and Management," July 5, 2011:

"Real Earnings, Health Insurance and Pension Coverage, and the Distribution of Earnings, 1979-2009," July 6, 2011:

"Challenge to the Boeing-Airbus Duopoly in Civil Aircraft: Issues for Competitiveness," July 25, 2011:

"Statutory Limits on Total Spending as a Method of Budget Control," July 26, 2011:

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

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