Wednesday, July 05, 2006

# Posted 11:53 PM by Ariel David Adesnik  

TELL ME, IS IT ILLEGAL OR NOT? I'm still trying to figure out whether it is illegal or not for journalists to publish classified information. The Sunday morning shows were almost no help in this regard. But did their lack of interest suggest that reporting classified information is obviously legal or obviously illegal?

At one point, Dana Priest touched on the issue in passing during the Meet the Press roundtable. Here's the exchange:
MS. MITCHELL: Dana...a story you wrote last year disclosing the secret CIA prisons won the Pulitzer Prize, but it also led to William Bennett, sitting here, saying that three reporters who won the Pulitzer Prize—you for that story and Jim Risen and others for another story—were, “not worthy of an award but rather worthy of jail.” Dana, how do you plead?

MS. PRIEST: Well, it’s not a crime to publish classified information. And this is one of the things Mr. Bennett keeps telling people that it is. But, in fact, there are some narrow categories of information you can’t publish, certain signals, communications, intelligence, the names of covert operatives and nuclear secrets.

Now why isn’t it a crime? I mean, some people would like to make casino gambling a crime, but it is not a crime. [Yes, that was a sharp elbow thrown at Bill Bennett.] Why isn’t it not a crime? Because the framers of the Constitution wanted to protect the press so that they could perform a basic role in government oversight, and you can’t do that.
In reponse to my previous request for help, Anonymous 12:09 provided this very comprehensive reference to First Amendment law. So comprehensive, in fact, that I had no idea where to begin. This non-expert needs someone to break it down for him.

One such person is Jonathan Adler of Volokh and NRO. In May, Adler and Michael Berry argued that there is only one law -- the Espionage Act of 1917 -- that can be reasonably interpreted as a blanket prohibition on the publication of classified material. However, the meaning of the Act is far from clear and would probably be a very slender reed on which to base the prosecution of journalists.

In the Standard, Gabriel Schoenfeld points to the Comint (or communications intelligence) statute of 1950, but recognizes that it only applies to a limited set of cases. From what I can tell, this is the same statute Dana Priest was referring to when she said that only certain "signals, communications, intelligence" can't be published.

Well, the law is the law. For the moment, it seems that publishing classified information is OK as long as someone else gave it to you. Of course, one of the most important reasons that dissatisfied government officials provide classified information to the press is that journalists have the power to focus national attention on it, whereas the leaker himself would be punished for doing so.

A strange situation indeed.
(5) opinions -- Add your opinion

" it seems that publishing classified information is OK as long as someone else gave it to you."

Now, refusing to divulge who that someone else was, that's quite another matter....
It's Illegal to publish. There's a section in either the UCMJ or espionage act, forget which, making it illegal to knowingly publish. If you want to do some digging, here's the best site to search on:

http://news.lp.findlaw.com/ap/p/56/06-26-2006/70d300286b9c1bd2.html That was from a minute's digging, you could probably find case law on this, I think during WWII that FDR almost closed the tribune under the law I referenced after they revealed that we had broken the Japanese code. He opted not to once he figured out that the Japanese didn't read Chicago tribune, and that shutting it down with the marines would bring international attention to the issue he hoped to avoid. If you search findlaw there's also an article on civil rights groups filing suit in 32 countries to stop SWIFT
Here's a guilty under the act:

The Morison Case: The First Leak Conviction Under the 1917 Espionage Act

The case arose because Samuel Morison, a civilian analyst working in Navy Department Intelligence, sent two classified satellite photos of a Soviet nuclear-powered aircraft carrier under construction to Jane's Defence Weekly, a British-based publication. (With the consent of his Navy employer, Morison worked part-time as the American editor for another Jane's publication.)

The guilty verdict sent shock waves through the news media and publishing establishment. By late 1987, when the case reached the U.S. Court of Appeals for the Fourth Circuit, some thirty-four major news organizations had filed amici curiae (friend of the court) briefs. They included The Washington Post, The New York Times, The Los Angeles Times, The Chicago Tribune, ABC, CBS, NBC, The American Society of Newspaper Editors, and The Magazine Publishers Associations, just to list a small sampling.

These media entities knew that if Morison was guilty of a crime for leaking under these statutes, then potentially they too were guilty - either under an "aiding and abetting" theory, if they printed or induced leaks from their government sources, or even under these loosely worded statutes themselves. Their briefs hammered at the point that Congress never intended either of these statutes to be used to criminally prosecute such leaks.

But the Fourth Circuit was not interested in what Congress intended to do, only what Congress had said. They found that the Espionage statute covered Morison's conduct even though it was not a classic spying case, and no information had been given to an enemy. As for the theft statute, the court reiterated that information could be a "thing of value" that could be stolen, and held - invoking the 1971 drug case precedent - that it, too, was applicable.

Morison was sentenced to two years in prison. To say that the Reagan administration received bad press for his prosecution, is an understatement. Newspeople understand that leaks are the lifeblood of Washington; that government officials leak information daily; and that the ship of state is unique in that it leaks from the top. To prosecute low-level leakers - when it's obvious high-level leakers never will face the same kind of charges - is high hypocrisy.

In 2001, just before leaving office, President Bill Clinton pardoned Morison, who had already served his sentence.
You ask if it is illegal or not. There are several articles you must read at this site www.sanework.us.
If someone had leaked details of the SWIFT programme direct to Al Queda they would have univerally condemned as traitors and would have been locked up for life.

Somehow when someone leaks to a paper, and that paper publishes it for the whole world to read, then suddenly it's a public service.

I don't understand the difference.
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