SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 70
July 30, 2013

Secrecy News Blog: http://blogs.fas.org/secrecy/

PUBLISHING SECRETS IS A CRIME, OLC SAID IN 1942

Newspapers can be held criminally liable for publishing secret information, according to a newly disclosed Office of Legal Counsel (OLC) opinion dating from World War II. A reporter who writes a story based on defense secrets could be found to have violated the Espionage Act for revealing secret information, as could his editor and publisher.

"A reporter who kept or copied a Navy dispatch containing a list of Japanese ships expected to take part in an upcoming naval battle, and later submitted for publication a newspaper article with information from the dispatch, appears to have violated... the Espionage Act," the 1942 OLC opinion said.

"Whether the managing editor and publisher of the newspaper that published the article might also be criminally liable under the Espionage Act depends on their intent and knowledge of the facts."

See "Criminal Liability for Newspaper Publication of Naval Secrets," Office of Legal Counsel, June 16, 1942.

Under the authority of the Attorney General, the Office of Legal Counsel provides authoritative legal advice to the President and to executive branch agencies. The 1942 OLC opinion has no binding legal force, and it does not necessarily represent executive branch views today. But it fills in a gap in the legal genealogy of leak prosecutions. It also highlights the latent possibility under the Espionage Act of criminalizing not just leaks but also news reports based on them.

Although not named by OLC, the reporter whose actions prompted the opinion was Stanley Johnston of the Chicago Tribune. Based on a classified document that was shared with him by a naval officer, Johnston wrote a front-page story in the Tribune on June 7, 1942 identifying the Japanese order of battle and implicitly revealing that U.S. intelligence had been able to decrypt Japanese military communications. A grand jury was convened to investigate the matter but was disbanded at the request of the Secretary of the Navy in order to avoid further publicizing the disclosure. (Gabriel Schoenfeld recounted the episode in his 2010 book Necessary Secrets.)

"The reporter's conduct in taking and copying a dispatch of immense importance -- as this one seems obviously to have been -- is characterized by real turpitude and disregard of his obligations as a citizen," the OLC opinion said. "It is hard to believe that any jury or judge would take a sympathetic view of his case, or seek to free him on any narrow view of the facts of the law. He thoroughly deserves punishment."

In an assessment that may resonate in some quarters in the networked world of the following century, the OLC opinion said that the newspaper's broad distribution aggravated the original offense to the point of evil.

"In this case, the vast circulation of the newspapers involved puts the reporter in a position where he must pause and consider the consequences of his act. At best, his conduct was reckless and negligent, rather than specifically intended to do harm. Yet the negligence and recklessness were of such magnitude as to be fairly characterized as criminal and evil...," the OLC opinion said.

* * *

The Office of Legal Counsel opinion on potential criminal liability for newspapers appeared this month in an extraordinary new collection of previously unpublished OLC opinions written between 1933 and 1977. (Formal publication of OLC opinions did not begin until 1977.)

"This volume begins what the Office of Legal Counsel intends to become a continuing supplement to its primary series of published opinions, covering all years during which the Office has been in existence," according to the Foreword by Virginia Seitz, the current head of OLC, and Nathan A. Forrester.

The contents of the volume are wonderfully rich and interesting.

A 1937 OLC opinion concludes, with evident regret, that there is no legal basis for censoring the broadcast of a speech by Leon Trotsky. "The Federal Communications Commission does not have statutory authority to censor the telephone transmission from Mexico into the United States of a speech by Leon Trotzky."

A 1974 opinion recommends that the FBI exercise its discretion to release files concerning a New Left figure even though it may have a legal right to withhold the files:

"In the last analysis, the only policy reason for withholding most of the requested documents is to prevent a citizen from discovering the existence of possible misconduct and abuse of government power directed against him. In my view, this is not only no reason for asserting the exemption; it is a positive reason for declining to use it, even where other reasons for asserting it exist. The obtaining of information of this sort is perhaps the most important reason for which the Freedom of Information Act exists." The opinion was signed by then-OLC head Antonin Scalia.

The "legality and practical consequences" of a U.S. blockade of Cuba are considered in a 1962 opinion, and the use of federal marshals to protect civil rights workers in Mississippi is discussed in a 1964 opinion.

Other OLC opinions treat the invasion of Cambodia during the Vietnam War, Watergate, and many other topics. The whole collection is an unexpected feast of historical and legal scholarship that is surprisingly accessible to non-specialist readers.

"Notwithstanding that some of these opinions may no longer be good law, our hope is that all will prove to be of value to legal practitioners and legal historians. This volume was a labor of love and respect for the history, traditions, and people of OLC and the Department of Justice," the OLC editors wrote.

MARINE CORPS COMMANDANT ACCUSED OF IMPROPER CLASSIFICATION

Marine Corps Commandant Gen. James Amos exercised "unlawful command influence" in an attempt to punish Marines who allegedly urinated on enemy corpses in Afghanistan in 2011, attorneys for the Marine defendants said. And then Gen. Amos improperly classified information in an effort to conceal his own misconduct, the attorneys said.

"The evidence shows that the CMC [Commandant, Marine Corps] could not resist the temptation and decided to further the concealment of his unlawful intentions by ordering..., without proper authority or basis, the imposition of a secret classification upon the testimony and materials disclosed by the previously unclassified investigations of the alleged desecration cases," defense attorneys said in a motion filed last week.

It's a sordid story all around. What makes it interesting here is that a Marine Corps official warned in 2012 that the classification action was a mistake that could backfire against the Marine Corps if it ever became public.

"If this goes to the next level of administration or judicial action, there are some additional considerations that a lawyer, versed in classification issues, might be able to use to shoot holes in our whole process and bring the whole decision making process into question," wrote William Potts in an internal email quoted in last week's motion.

Improbably enough, he then cited the FAS Project on Government Secrecy and me (at page 19). A potential court-martial of the defendants would "spread us all over the media; would probably get Steven Aftergood, Project on Government Secrecy, involved.... He'd make us look silly if he supported a defense contention that the video was improperly classified."

There is a creaky old saying to the effect that you should not do (or say or write or email) anything "if you wouldn't want to see it on the front page of the Washington Post." A similar principle might be applicable in the world of national security classification. If you couldn't justify the classification of information to an outside reviewer, then you probably shouldn't classify it.

Unfortunately, in the normal course of business, there are few occasions on which any official is ever called upon to justify his classification action to an impartial, independent observer. That's just not the way the classification system is currently structured. But it could be. Increasing the number of opportunities for independently evaluating classification actions would quickly serve to improve the quality and legitimacy of classification activity.

For more background on the Marine Corps case, see these stories in Military Times and CNN.

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

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