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Reactions to Espionage Act Ruling:

This Los Angeles Times article quotes some reactions to Wednesday's ruling that individuals who receive and retransmit classified national security information may be prosecuted under the Espionage Act.

"It's a momentous ruling with radical implications," said Steven Aftergood, who heads the Project on Government Secrecy for the Federation of American Scientists. "A lot of people who are in the business of gathering information, such as reporters and advocates, are now going to have to grapple with the potential threat of prosecution. The dividing line has always been between leakers, who may be prosecuted, and the recipients of the leak, who have never been. Now that dividing line has been erased." . . .

Prosecutors have said that for the espionage law to be invoked, an individual possessing secret information must intend to cause harm to America. But they have not ruled out the possibility of charging journalists.

Some legal experts are skeptical of the judge's reasoning that safeguards are sufficient to prevent abusive prosecutions.

"It is predicated on an idea that the executive and judicial branches will operate with rectitude and only prosecute cases where there is a genuine risk of harming national security" rather than political considerations, said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "It presumes a degree of honest government that, sadly, does not always exist."

Aftergood and Kirtley said they knew of no other case where the United States was seeking criminal charges against someone other than a government employee who clearly violated a nondisclosure agreement.

The story also notes that there is a federal grand jury looking into the leaks relating to NSA surveillance activities reported in the press. Howard Bashman rounds up more press coverage here.

Observer:
I think the ruling is much too narrow. Apparently traitors and other criminals can only be prosecuted (and hopefully executed) for their crimes only if there is specific intent, and specific knowledge of the enemies advantage from the information. I don't buy it. I don't see any reason why Mr. Keller, the traitor, and his ilk should be above the law. For example, if Judith Miller did in fact use classified information to tip off the Islamonazi CAIR organization of an impending raid, there is no reason for Judith Miller not be tried, convicted and executed for treason.

The American people are fed up with legalistic arguments trying to defend our enemies. If the media wants to get on board with American-Islamic Fascism Jihad, they need to be prepared to suffer the consequences.
8.11.2006 11:00am
Tracy Johnson (www):
Two thoughts:

1. I would surmise that the idea of "intent" to harm America, may be under periodic refinement by the current party in power.

2. Current rhetoric by media on the right would have one believe that the media on the left, currently has that intent.

(Oddly enough I agree with that rhetoric, but that's just me.)
8.11.2006 11:16am
Evan H (mail) (www):
If they really wanted to go after AIPAC why not just use 18 U.S.C. 371 instead of the Espionage Act? At the risk of sounding paranoid this seems like a Justice department shot across the bow of the press.
8.11.2006 11:17am
Mr. T.:
Evan, I don't think you're being paranoid. The general consensus seems to be that that's exactly what this is.
8.11.2006 11:43am
Jim Rhoads (mail):
Observer:

The specific intent requirements are among the elements of the statutory offense charged. They were not imposed by the Judge.
8.11.2006 12:25pm
Thorley Winston (mail) (www):
"It's a momentous ruling with radical implications," said Steven Aftergood, who heads the Project on Government Secrecy for the Federation of American Scientists. "A lot of people who are in the business of gathering information, such as reporters and advocates, are now going to have to grapple with the potential threat of prosecution. The dividing line has always been between leakers, who may be prosecuted, and the recipients of the leak, who have never been. Now that dividing line has been erased." . . .


And that line is still there because there is nothing in the court’s ruling that says you can be prosecuted for merely receiving leaked information. To be prosecuted you have to know that (a) it was leaked to you, (b) that further retransmission could harm the United States or aid our enemies, and then you have to (c) retransmit it. The crime is in retransmitting it not in receiving it.
8.11.2006 12:30pm
MnZ (mail):
"It is predicated on an idea that the executive and judicial branches will operate with rectitude and only prosecute cases where there is a genuine risk of harming national security" rather than political considerations, said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "It presumes a degree of honest government that, sadly, does not always exist."

This statement is frankly bizarre. Aren't ll laws are predicated on the presumption of an honest executive and/or judical branch? Should we get rid of bans on murder because those laws can be misused?

It seems that journalists have placed themselves in this netherworld in which they are all above the law. If so, spies and terrorists would be wise to get press credentials. (But I suspect that many spies and terrorists already have them.)
8.11.2006 12:46pm
cfw (mail):
Would be nice to have a "classified records" log, updated on the internet, to show what, at any given time, we have classified, who did it, why, when, where, etc.

Sort of like the "privilege log" required in court cases.

If we are going to start putting folks in jail who do not have security clearances, we need to get a lot more strict about what gets classified, for how long, where, when, on whose approval, with what justification, and with what notice to the public.

The determined whistle blower will presumably now go to the the French press, once the NYT says we cannot take the Pentagon Papers (2d ed.). Publication by the NYT of the Pentagon Papers (2d ed.) looks like the lesser of two evils, compared to publication in the French papers.
8.11.2006 1:03pm
PatHMV (mail) (www):
I hate it when some interested commentator says something like "the dividing line has always been between leakers... and the recipients of the leak", without challenging them about the "has always been". The law has quite clearly always been written to include the retransmission of classified information. And, as I've said elsewhere, any contrary rule would suggest that our enemies (let's use the Soviets as a clear example) need not use their own undercover agents to carefully obtain and retransmit stolen secrets back to Moscow, at great risk to their undercover agents. No, they can just set up a branch of "Pravda" in the U.S. and publish all the classified information they want to after Aldrich Ames sends it to them.

I am not The Shadow. I do not know if the NY Times had an evil motive lurking in its heart when it blew the SWIFT program. And motive quite properly almost never counts in the law. If Aldrich Ames leaked the list of classified secret agents working behind the Iron Curtain and a newspaper here ran it, the secret agents would be just as dead as they were when Ames secretly conveyed it directly to the Soviets. I'd much rather the government not be a "motives" police and focus instead on our outward actions.
8.11.2006 1:07pm
PatHMV (mail) (www):
The first sentence of the above should have read:

I hate it when some interested commentator says something like "the dividing line has always been between leakers... and the recipients of the leak", without being challenged by the reporter about the "has always been".
8.11.2006 1:09pm
Broncos:

Aren't ll laws are predicated on the presumption of an honest executive and/or judical branch?

Not all. One law that comes to mind as providing protection against a dishonest government is the First Amendment. In the same vein, statutes that provide for transparent government.


It seems that journalists have placed themselves in this netherworld in which they are all above the law.


The question isn't about whether we like journalists, nor whether we wish to give them "special" protections. More to the point, it isn't about whether journalists are "above the law." The issue is the law itself.

To what extent should a government whose legitimacy depends upon electoral accountability be transparent? THAT is the issue at hand. Not whether we enjoy reading the New York Times or Washington Post.
8.11.2006 1:27pm
Crunchy Frog:
The sorry truth is that this legislation is necessary, since the prusumption of an honest press has been sorely abused for far too long.
8.11.2006 1:54pm
Bryan DB:
As opposed to the presumption of an honest government, in which we all still believe.
8.11.2006 2:13pm
John Burgess (mail) (www):
The court's reading of the law said that a prosecutable leak had to be either/both A) damaging to US national security, or B) to the advantage of a foreign government. It didn't say "enemy government".

Nor did it say "retransmission" was a critical element: possession of such info, while knowing that it was classified and improperly obtained, is also adequate grounds for prosecution.
8.11.2006 2:14pm
Third Party Beneficiary (mail):
"The specific intent requirements are among the elements of the statutory offense charged. They were not imposed by the Judge."

Damn activist legislators! [/sarcasm]
8.11.2006 2:23pm
srp (mail):
I can't see how the government could win a conviction against the press in any real-world case. All you need for acquittal is a reasonable doubt that the retransmitter intended to harm the US. If the New York Times can't convince a jury that it is not unreasonable to believe that they really thought they were helping the country by publishing info, then they have bigger problems than this law. Criminal prosecutions under this standard are likely to be harder than civil libel suits by public figures, which require showing "actual malice" on the defendant's part.
8.11.2006 4:24pm
steveh2:
Does the opinion address the First Amendment issue, i.e., whether the First Amendment bars someone from uttering certain words (classified information) to another? Because that seems to be the only defense against a government that classifies (and declassifies) based on political convenience rather than strictly on the need to protect against attack.

Take this hypothetical: The US launches a new assault in Fallujah or wherever. All the US troops are killed because they were sent in on foot when the Humvees and whatever else broke down. The administration immediately decides to classify all information concerning the attack and deaths.

Under the current state of the law, (a) is there anything preventing the administration from broadly classifying such information, or (b) if the administration classifies it, is there any way for someone to let that information be known to the voting public?
8.11.2006 4:27pm
MnZ (mail):
Broncos,

Yes, the Constitution does indeed protect the press. However, the Constitution also gives the government the power to protect the power from threats. The former is part of an open government while the latter implies that the government can keep secrets and prosecute those that divulge them.

Kirtley seems to believe that the former trumps the latter. This is problematic for two reasons. First, it makes press credentials into a "get out of jail free card" for spies. Second, it places the decision about what "should be" a government secret in the hands of a reporter - rather than government and the people.
8.11.2006 4:27pm
MnZ (mail):
Under the current state of the law, (a) is there anything preventing the administration from broadly classifying such information, or (b) if the administration classifies it, is there any way for someone to let that information be known to the voting public?

I don't know about (a). However, (b) seems to be simple. The information can be "illegally" obtained and released. The court system and the voters would ultimately determine if the perps should be punished.
8.11.2006 4:34pm
MnZ (mail):
oops...make that:

However, the Constitution also gives the government the power to protect the public from threats.
8.11.2006 4:39pm
Kazinski:
Broncos:

To what extent should a government whose legitimacy depends upon electoral accountability be transparent? THAT is the issue at hand.

Exactly, and that question in our society is to be decided by the people through their elected representives by rule of law, not on an ad-hoc basis by the press or anonymous leakers. There are procedures and protections set up by the law for whistleblowers can bring wrongdoing to the attention of prosecutors and congress. These procedures can determine when secrecy laws are being used to hide malfeasance, and when there is a real need for security. No one elected the NYT editors to make those decisions.
8.11.2006 4:40pm
Philistine (mail):
The court's reading of the law said that a prosecutable leak had to be either/both A) damaging to US national security, or B) to the advantage of a foreign government. It didn't say "enemy government".

Nor did it say "retransmission" was a critical element: possession of such info, while knowing that it was classified and improperly obtained, is also adequate grounds for prosecution.


I think you're misreading the case.

There are two very similar requirements on harm.

The first is in order to be “information relating to the
national defense” it must be information the “disclosure [of which] would be potentially damaging to the United States or useful to an enemy of the United States.” (Citing United States v. Morison).

In addition, in order to criminalize the transmission of oral information, there is an [i]additional[/i] scienter element: "Thus, the statute, as-applied to these defendants also requires the government to prove that such information was communicated with “reason to believe it could be used to the injury of the United States or to the advantage of any
foreign nation.”" (Citing 18 U.S.C. §§ 793(d), (e)).

This also addresses your other misunderstanding about retransmission. Where, as in this case, the classified information was oral--there can only be liability for retransmitting the information, and not mere receipt and retention. As the Court said: "it is illogical to punish the retention of intangible information since a person cannot avoid remembering something he learned, thereby retaining it, nor can a person deliver their memory to one entitled to receive it, as the statute’s retention
clauses would seem to require."
8.11.2006 4:42pm
steveh2:
Under the current state of the law, (a) is there anything preventing the administration from broadly classifying such information, or (b) if the administration classifies it, is there any way for someone to let that information be known to the voting public?


I don't know about (a). However, (b) seems to be simple. The information can be "illegally" obtained and released. The court system and the voters would ultimately determine if the perps should be punished.


I wasn't clear enough. If the administration unilaterally decides to classify the information about the failed raid and US casualties, is there any way that someone could legally release that information to the public, under the current state of the law?
8.11.2006 4:48pm
massachusetts republican (mail) (www):
Thursday, Aug. 10, 2006 4:48 p.m. EDT
U.S. Poll: Large Minority Fear, Mistrust Muslims
USA Today/Gallup poll:

Nearly four in 10 Americans admit having feelings of prejudice against Muslims living in the U.S. and are in favor of having Muslims carrying a special ID

22 percent of those surveyed said they would not like to have a Muslim as a neighbor.

31 percent of respondents said they would feel nervous if they noticed a Muslim man on their airplane flight

18 percent would feel nervous about a Muslim woman flying with them.

49 percent feel that Muslims living in the U.S. are loyal to this country.

34 percent believe American Muslims are sympathetic to the al-Qaida terrorist organization.

40 percent of respondents said they believe Muslims in the U.S. are not respectful of other religions

44 percent said Muslims are too extreme in their religious beliefs.

52 percent believe Muslims are not respectful of women.

39 percent said the U.S. should require Muslims to carry a special ID

57 percent believe Muslims should undergo more intensive security checks at airports.

39 percent said they "have at least some feelings of prejudice against Muslims
59 percent said they did not, and 2 percent had no opinion.

Opinions are different, however, among Americans who are personally acquainted with a Muslim, the poll disclosed.
For example:
10 percent of those who know a Muslim said they would not want one as a neighbor
24 percent believe Muslims should carry a special ID – compared to 50 percent among those who don’t know a Muslim.

Are these results MY fault? Are they the fault of other sites like Little Green Footballs or Jihad Watch?
I think it it’s the fault of C.A.I.R and the speeches, rallies and public statements NOT made that are the cause of the feelings shown in this poll. Personally I think the vast majority of Americans want to live well and harmoniously with their American moslem brothers its just that we never see the American moslem community trying to reach out to us. They didn’t attend that rally held in Washington specifically for them (you recall the one I am talking about...it was a flop). C.A.I.R. will say this poll shows Americans are bigots…BULL! It’s up to American Moslems to prove us wrong. We want you too, really.
What do you think? Please comment. @ my site, thanks
-Steve
8.11.2006 5:00pm
jimbino (mail):
VC likes to think it can block users whose sentiments he disapproves of from posting here, as it tried with me, but as you see, it doesn't work. If you wonder why folks blow things up, imagine that it is the gummint itself blocking disapproved minority speech.
8.11.2006 5:15pm
Charlie (Colorado) (mail):

Would be nice to have a "classified records" log, updated on the internet, to show what, at any given time, we have classified, who did it, why, when, where, etc.


No it wouldn't. The effect would be to reveal an awful lot of information that would, in itself, be classified.

Consider, eg, entries like


2006.08.10 1929 Summary of intercepts of suspected al Q phone calls
2006.08.11 1930 Threat analysis of al Q attack planning


Of course, you could "sanitize" the entries, in which case you'd get


[redacted] 1929 Summary of [redacted]
[redacted] 1930 [redacted]

8.11.2006 5:18pm
Broncos:
First, let me say that I am not categorically against the classification of information. But let's not sugarcoat this, and pretend like it isn't democratically problematic.

There are 23 members on the House Intelligence Committee, 15 members of the Senate Intelligence Committee, and 1 President. The US population is approximately 295,000,000. Assuming secrecy, these 295 million people will be subject to the policy decisions regarding liberty and security of these 39 people; but they will never learn of the trade-offs made, nor of the grounds upon which they are based. These 39 people will never be held responsible for major policy trade-offs that are made concerning security and liberty. This is problematic, for a democratic republic only dispenses trust upon accountable representatives. Secrecy is strikes at the very nerve of accountability; and it is therefore no shock that the First Amendment in our Bill of Rights devolves power from government to the people. (or "reporters", if you may.)



Mnz: Second, it places the decision about what "should be" a government secret in the hands of a reporter - rather than government and the people.


Out of curiosity, how is information in the hands of "the government and the people," when the information is kept secret from the people? By hypothesis, don't you mean that classified information simply remains in the hands of the government?

Perhaps there is virtual accountability through procedural safeguards. But, again, I submit that THIS is the issue we are discussing. A free press, even with respect to national security, operates as a procedural safeguard. Perhaps eliminating it might be a good idea, but don't pretend that it's just affecting the working lives of reporters. Not only is it a fundamental liberty, it a basic protection of the people against a secret workings of a powerful government.


Kazinski: Exactly, and that question in our society is to be decided by the people through their elected representives by rule of law, not on an ad-hoc basis by the press or anonymous leakers. There are procedures and protections set up by the law for whistleblowers can bring wrongdoing to the attention of prosecutors and congress. These procedures can determine when secrecy laws are being used to hide malfeasance, and when there is a real need for security. No one elected the NYT editors to make those decisions.


First, nobody needed to elect the NYT editors. In fact, I would be uncomfortable at the idea that you need a position in government in order to old the position of editor. This is merely a rhetorical ploy. As heart, the issue is the devolution of power. And as you know, electoral accountability is not a necessary condition for holding power: nobody needs to be elected to government in order to hold property. We sort of enjoy devolved power here in the old US of A.

As far the whistleblower procedures: I am not intimately familiar with them. Yet, I am uncomfortable with the idea that the only protections we have against the exercise of secret government power is when an individual has engaged in malfeasance. For example: the secret prisons in Europe, in which we held an unknown number of persons for an unknown period of time, without any process, were presumably not an issue of malfeasance. They were, however, a major issue of both liberty and security. What type of process exists by which the American public can learn of this type of government action, and hold their representatives accountable? If you win the security versus liberty debate, and there remain secret prisons in which we hold unknown persons for an unknown period of time, fine. But absolute secrecy ensures that this debate will never take place; and of all the arguments you can use to underpin your conclusions, electoral accountability is not among them.
8.11.2006 5:27pm
jimbino (mail):
If you post a sentiment that Eugene Volokh doesn't approve of, he attempts to block your post with the message, "We apologize, but your IP address has been banned from commenting on this blog."

This is not really effective, and because there are lots of ways for liberty-pokers of Eugene or terrorists of GWB or even simple Chinese students to read what their gummint disapproves of, we real libertarians and freedom fighters will prevail.

Delete this Eugene, if you dare!
8.11.2006 5:29pm
Anderson (mail) (www):
while knowing that it was classified and improperly obtained

Well, the solution here is for leakers not to tell the reporter "oh and by the way, everything I'm telling you is classified."
8.11.2006 6:01pm
Elliot123 (mail):
So, who is a journalist? Prof. Volokh? Prof. Adler? Bill Keller? Geraldo? Anyone with a blog or a copy machine? Anyone who contributes to a blog's comments? All of us in this comment forum? If we exempt the media, we may as well just exempt everyone, since anyone can be a journalist today.
8.11.2006 6:53pm
DeezRightWingNutz:
Broncos,

Mnz said that the decision regarding classification should be in the hands of the people (via their elected representatives) not the information itself.
8.11.2006 6:55pm
MnZ (mail):
Out of curiosity, how is information in the hands of "the government and the people," when the information is kept secret from the people? By hypothesis, don't you mean that classified information simply remains in the hands of the government?

Nope. The people elect the government, and the people have and continue to support secrets held for the sake of government security. Thus, the people have basically voted that they don't need to know certain things.

Who is better to carry the wishes of the people in this matter? Elected officials or newspaper editors.

Perhaps there is virtual accountability through procedural safeguards. But, again, I submit that THIS is the issue we are discussing. A free press, even with respect to national security, operates as a procedural safeguard. Perhaps eliminating it might be a good idea, but don't pretend that it's just affecting the working lives of reporters. Not only is it a fundamental liberty, it a basic protection of the people against a secret workings of a powerful government.

There are more than procedural safeguards; there are electoral ones as well. Since the people elect the government, they can remove leaders that misuse their power (including the power to keep secrets).

Anyway, I think you and I might be less far apart on this issue than it might appear. I support a free press - the standard for conviction should be very high. However, I don't think that egregious and fraudulent abuses of the first amendment should go unpunished.
8.11.2006 6:55pm
K Bennight (mail):
Mr. Winston said:

[N]othing in the court’s ruling that says you can be prosecuted for merely receiving leaked information. To be prosecuted you have to know that (a) it was leaked to you, (b) that further retransmission could harm the United States or aid our enemies, and then you have to (c) retransmit it. The crime is in retransmitting it not in receiving it.

As I understand the ruling, Mr. Winston is correct, and I see nothing wrong with the result. If you retransmit classified information knowing that doing so will harm the United States or aid its enemies, isn't that a classic case of lending aid and comfort to the enemy? If we have become too "sophisticated" to consider treason a crime, we will not long endure.
8.11.2006 7:02pm
dick thompson (mail):
When I got my clearance to handle eyes only stuff and the briefing books used for the SecDef, Pres, Congress critters, Joint Chiefs of Staff et al, the point that was pressed was that security is the responsibility of all. If you know that you are not cleared to receive information and someone tries to give you that information, it is incumbent on you to stop them and not receive the information. If you let them continue to give you that information, then you are as guilty as they are. This was in the days of LBJ, JFK, McNamara, Maxwell Taylor, Bay of Pigs, Berlin Wall, Cuba Missile Crisis, and Gulf of Tonkin. I don't really believe that the law has changed that much since. That is why I find people like Sandy Burger and those who leaked to the NY Times as well as the reporters who printed the stories in the NY Times so reprehensible.

In essence things are classified for a good reason in most cases and for these people just to ignore that and knowingly break the law by telling the info and receiving the info both really frosts me. I saw some good officers who lost their career for minor things at the time and these people are going far beyond what those officers did. I find it especially upsetting when someone who had the responsibility of enforcing the security regulations breaks them as Sandy Burger and the leakers did. To do that, especially in time of war, is really going way beyond the pale IMNSHO. I really hope that the cases are prosecuted and they serve all the time possible so that in the future the secrets of this country can remain secret from our enemies who are trying to destroy us. I also hate to see people try to pull a Bill Clinton trying to define what "is" is when it comes to matters dealing with national security. While they are parsing the words to get the last little bit of advantage, men and women are putting their lives on the line to protect the country and these guys seem to disregard that as if the military did not exist or was not important. We even had an administration where they forced the marines to serve in civilian clothes because the sight of uniforms upset the "royal" couple.
8.11.2006 7:58pm
Kevin L. Connors (mail) (www):
I concur with dick thompson. When I was in the Air Force, in the mid-to-late '70s, and when I was doing engineering consulting for defense contractors, in the mid '80s, the standard briefing was that, to receive classified information you had to have both the proper level of clearance, and a "need to know." If someone attempted to transfer classified information to you, exclusive of those conditions, you were supposed to report it to your superiors immediately.
8.11.2006 8:24pm
Fub:
MnZ wrote:
There are more than procedural safeguards; there are electoral ones as well. Since the people elect the government, they can remove leaders that misuse their power (including the power to keep secrets).
So we reasonably assume that the people would remove an elected government official who the public comes to know is misusing his power.

Now if an official (or several) classifies information about some misconduct or crime, but uses independent and sufficient criteria to justify the classification, how is the public to know about the misconduct, short of someone committing the crime of making that information public?

Is relying on ordinary citizens (including reporters) to risk criminal convictions to reveal official wrongdoing a sufficient check against corruption?
8.11.2006 9:05pm
dick thompson (mail):
Fub,

The problem I see with what you are asking is that there is a methodology of questioning classifications which involves things like inspectors general and heads of department and superior officers and congress critters and executive department employees where the information at issue is discussed by people who are cleared to do so. These people have bypassed all those means of questioning the classifications and just arbitrarily given the information to reporters and others who patently are not cleared to receive that information. That makes them guilty and the person who receives the information just as guilty. That is why I personally want these people prosecuted to the full extent of the law.

There are multiple reasons for there being a chain of command. One is that the information to be acted upon is passed down the chain so that all are working from the same page. Another is that if you cannot get satisfaction at a lower level, then there is a higher level to go to to get a problem resolved.

This second reason is what these people have ignored and done so at the peril of our country and our young men and women fighting in the war. The check against corruption is the chain of command all the way to the head of the department, then to the executive, then to Congress, then to the Courts and if all else fails maybe to the media. To short cut the whole thing by going straight to the media is illegal and should be prosecuted and for the media to then publish this information thereby endangering our troops in time of war is tantamount to commiting treason or close to it.
8.11.2006 9:29pm
Henri LeCompte (mail):
Perhaps I am naive, but I always assumed that receiving and transmitting classified information was a crime, and would be treated as such.

If I was a "bagman" who curried stolen CIA documents from a drop site to the Soviet embassy in 1970, wouldn't I be correct in hiding my activities? Wouldn't such people rightly fear prosecution? So instead... if I just publish it in a newspaper (as the method of getting it to the Soviets), I would be untouchable?

In addition, since when was it necessary to divine the mindset of such people? If I am giving stolen, classified documents to America's enemies, I can't be prosecuted until my intent can be divined? Wow.
8.11.2006 11:18pm
John Burgess (mail) (www):
Only in some of the referenced cases is the phrasing "benefit of enemies of the United States". The law itself reads "advantage of another country". While that may suggest that the benefit would accrue only to the detriment of the US, I don't believe that to be the plain reading of the text.

It appears to say that if another country (any country, enemy or ally) benefits from the transmission, it is illegal.

This court did distinguish between oral transmission and the physical transferral of tangible intelligence. It did not find that oral transmission was somehow immune to prosecution, though retention of pure information presented difficult issues. The court also said, importantly, that the laws need updating.
8.12.2006 12:02am
dick thompson (mail):
I have a problem with differentiating between oral transmission and physical transferral of tangible intelligence. Any way you cut it you are passing intelligence, tangible or otherwise, to someone. If that someone is not cleared to receive that intelligence, then you have broken the law. It doesn't matter whether it was oral or not. I don't see why retention of pure information should make any difference in the issues at all. If you are an enemy and I tell you something, you can take action based on what I tell you. If I hand you something, you can take action based on what I hand you. What is the difference? In either case you can take action based on intelligence given to you in some form. If that action is against the government of the US, then the intelligence was given to an enemy of the US.

This distinguishing is what I meant about the the defining what "is" is. The courts are getting so tied up in knots over these definitions that they seem to be losing the whole major picture of what the law is saying. Intelligence is either passed on or it is not. If it is and the recipient is entitled to receive it and has a need to know about it, then the passing on is valid. If the recipient is not entitled to receive it or has no need to know about it, then the passing on is invalid. What more does the court need to decide?
8.12.2006 12:58am
logicnazi (mail) (www):
Given that you must intend/believe that revealing the information will cause harm to the US it sounds like a law that couldn't ever be succesfully used against reporters. Sure if you sneak out in the dead of night and hand the info to an iranian agent in exchange for money you could be found guilty. However, all a journalist needs to say is that he feels the country benefits more from the free publication of ideas than it is harmed by this revealation and he should be off scott free.
8.12.2006 5:24am
Philistine (mail):
<blockquote>
<i>Only in some of the referenced cases is the phrasing "benefit of enemies of the United States". The law itself reads "advantage of another country". While that may suggest that the benefit would accrue only to the detriment of the US, I don't believe that to be the plain reading of the text.

It appears to say that if another country (any country, enemy or ally) benefits from the transmission, it is illegal. </i>
</blockquote>

They are two seperate things. The Statute doesn't define "information relating to the national defense." Courts have imposed a requirement that something is only information relating to the national defense if its disclosure would be potentially damaging to the United States or useful to an <b><i>enemy</b></i> of the United States.

Seperate and apart from that requirement, the statute explicitly requires as an element reason to believe it could be used to the injury of the United States or to the advantage of <i><b>any foreign nation</i></b>.

If the information would not be damaging to the US, and would also not be useful to an enemy of the US, then you never get to the question of what the person believed—it's not information relating to the national defense.

<i>logicnazi</i>

The issue isn't whether the Defendant's specific intent was to provide advantage to another country (or harm to the US)—it's whether he had reason to believe it <i><b>could</b></i> be so used, if disclosed.
8.12.2006 9:17am
MnZ (mail):
Fub said:

Is relying on ordinary citizens (including reporters) to risk criminal convictions to reveal official wrongdoing a sufficient check against corruption?

We already rely on people risking criminal convictions. It is a crime for people with security clearances to leak information to third parties including the press. Most of the press appear to be fine with these laws. For example, the NYT demanded an investigation and prosecutions in the Plame leaks. Do you disagree with them?
8.12.2006 11:17am
Fub:
MnZ wrote:
Is relying on ordinary citizens (including reporters) to risk criminal convictions to reveal official wrongdoing a sufficient check against corruption?
We already rely on people risking criminal convictions. It is a crime for people with security clearances to leak information to third parties including the press. Most of the press appear to be fine with these laws. For example, the NYT demanded an investigation and prosecutions in the Plame leaks. Do you disagree with them?
I intended that my question only refer to revelations of official wrongdoing in otherwise classified information. If my question did not make that clear, then I hope I have now done so.

As I understand it, no classified information released in the incident you cite was evidence of official wrongdoing or corruption. I think the the leakers and publishers risked prosecution and conviction. But I don't understand how that risk was a cost of revealing official wrongdoing.
8.12.2006 1:38pm
Richard Aubrey (mail):
If a journalist-defendant on the stand says his intent was to aid, not harm, the US, it would be a matter of his credibility.

Would a journalist want to bet his life on the public's view of his credibility?
8.12.2006 11:43pm
markm (mail):

Well, the solution here is for leakers not to tell the reporter "oh and by the way, everything I'm telling you is classified."

That works for small leaks transmitted by word of mouth, e.g. "Valerie Plame works for the CIA." It's not so good for a leak accompanied by documentation, say letting a reporter look at a 200-page report on how a platoon was trapped and nearly wiped out because of defective equipment. No one's going to believe that you didn't notice the huge "Top Secret" stamp on every page.
8.13.2006 11:52am
Third Party Beneficiary (mail):
"No one's going to believe that you didn't notice the huge 'Top Secret' stamp on every page."

That's why you put redact tape (available at all fine office supply stores) over the stamp and make a clean copy before passing it along.
8.13.2006 12:49pm
MnZ (mail):
I intended that my question only refer to revelations of official wrongdoing in otherwise classified information. If my question did not make that clear, then I hope I have now done so.

As I understand it, no classified information released in the incident you cite was evidence of official wrongdoing or corruption. I think the the leakers and publishers risked prosecution and conviction. But I don't understand how that risk was a cost of revealing official wrongdoing.


So, who is to determine if a leak is associated with wrongdoing or corruption? The courts or the NYT editorial board?
8.13.2006 3:26pm