SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2019, Issue No. 37
September 18, 2019

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

A LEAKER'S MOTIVES ARE IRRELEVANT, GOVT SAYS

Disclosing classified information without authorization is a crime even if the leaker had good intentions and was motivated by a larger public interest, the government said this week. Therefore, any mention of the purpose of the disclosure should be ruled out of bounds in trial, government attorneys argued.

The issue arose in pre-trial motions in the case of USA v. Daniel Everette Hale. Hale is a former NSA intelligence analyst and NGA contractor who is accused of having provided classified documents concerning US military drone programs to The Intercept.

"The defense likely will want to argue that, even if the defendant engaged in the conduct alleged, he had good reasons to leak the documents at issue and is being unfairly prosecuted under criminal statutes that carry significant penalties. Any such arguments, however, would be entirely improper," the government said in a motion to exclude such material.

"Evidence of the defendant's views of military and intelligence procedures would needlessly distract the jury from the question of whether he had illegally retained and transmitted classified documents, and instead convert the trial into an inquest of U.S. military and intelligence procedures."

"The defendant may wish for his criminal trial to become a forum on something other than his guilt, but those debates cannot and do not inform the core questions in this case: whether the defendant illegally retained and transferred the documents he stole," the September 16 government motion said.

The government said the defense should also be barred from arguing that a different perpetrator committed the charged crimes, from claiming that "everybody leaks classified information," and from informing the jury that if convicted the defendant could go to prison.

"Any punishment or consequence the defendant might suffer is irrelevant to the factual issues and, therefore, inadmissible," the government motion said.

Exclusion of a "good motive" or public interest argument is consistent with past practice in previous leak trials under the Espionage Act dating back to the case of Daniel Ellsberg and the Pentagon Papers, as writer Tom Mueller recalled in his new cultural history of whistleblowing Crisis of Conscience: Whistleblowing in an Age of Fraud (p. 111).

In Ellsberg's 1973 trial, "Prosecutors had also insisted, and [Judge William] Byrne had agreed, that the jury be instructed not to consider the larger questions raised by the defendant's acts: the morality of the Vietnam War, the public's right to know, the freedom of the press, or the Supreme Court's recent First Amendment decision in favor of the [New York] Times," Mueller wrote.

"Ellsberg still remembers his shock when the prosecution prevented him from explaining his motives for releasing the papers. When his lawyer asked him straightforwardly why he'd done it, a prosecutor objected that the question was 'immaterial,' and Judge Byrne sustained. 'My lawyer was stunned,' Ellsberg remembers. 'He told Judge Byrne that he'd never heard of a case where a defendant wasn't allowed to tell the jury why he'd done what he did. "Well, you're hearing one now," Byrne said'."

"This restrictive interpretation of the Espionage Act presaged subsequent . . . prosecutions after 9/11, which forbade Chelsea Manning, Tom Drake and other national security whistleblowers from explaining why they blew the whistle," Mueller wrote.

Defense challenges to secrecy policy and classification decisions should also be prohibited, the government argued in a separate motion in the Hale case.

"It is not proper for the Court or the defense to challenge a government agency's classification determination. Such determinations are exclusively a function of the Executive Branch. It follows, therefore, that the defense cannot challenge the classification of the documents at issue in this case or make general allegations of misclassification of information within the U.S. government at large," the government said.

* * *

For its part, the defense argued this week that the case against Hale should be dismissed because the Espionage Act as applied here infringes impermissibly on First Amendment freedoms.

"Now that the Act is used regularly against those who leak for no purpose other than informing their fellow citizens about their own government, its chilling effect is fatal to its continued viability. Moreover, its broad terms allow viewpoint-based prosecutions of the press and those whose actions are necessary for the press to freely operate."

"Accordingly, the provisions charged here should be voided as facially overbroad, . . . and the Indictment should be dismissed," the defense motion said.

The parties will respond to each other's motions in weeks to come.

YEMEN: CIVIL WAR AND REGIONAL INTERVENTION (CRS)

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

Yemen: Civil War and Regional Intervention, updated September 17, 2019:

Attacks Against Saudi Oil Rattle Markets, CRS Insight, September 16, 2019:

U.S.-China Trade and Economic Relations: Overview, CRS In Focus, updated September 12, 2019:

Immigration Detention: A Legal Overview, September 16, 2019:

Antitrust and "Big Tech", September 11, 2019:

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

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