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A Troubling Prosecution:

Michael Berry and I analyze the implications of United States v. Rosen in this NRO column. Here's the introduction:

Can journalists be prosecuted for knowingly reporting classified information related to the War on Terror? What about Washington lobbyists who pass on secret information concerning defense matters or foreign affairs? Some would be inclined to say that except in the most exceptional circumstances such communications are protected by the First Amendment, but a recent decision by a federal court in Virginia seems to conclude otherwise. The decision sends a clear warning to reporters who cover the war on terrorism, as well as scholars, think-tank analysts, and lobbyists who study, write, and advocate about issues bearing on the national security. Read broadly, the decision could sanction federal prosecution of anyone who willfully communicates classified national defense information to the public. Fortunately, the decision also contains limiting language that provides some safeguard for First Amendment values and makes it more difficult for federal prosecutors to convict potential defendants engaged in constitutionally protected activity, journalists and non-journalists alike.

Tracy Johnson (www):
It could be worse, at least it is not United States vs. Rosenberg.
8.21.2006 12:04pm
Charlie (Colorado) (mail):

Read broadly, the decision could sanction federal prosecution of anyone who willfully communicates classified national defense information to the public.


Okay, insert the obligatory "not a lawyer" disclaimer here, but I've got to admit my first thought is "Well, duh." It would appear to be what the text of the law says, and given that classification is based on how much damage release could do to the security of the US, I would think that would be a pretty compelling argument.
8.21.2006 12:13pm
Thorley Winston (mail) (www):
IMO the decision was crafted narrowly (perhaps too narrowly) enough that it would difficult to secure a conviction unless the government could show that the defendant knew that the classified information had been illegally obtained and that the defendant decided to retransmit it knowing that by doing so it could harm the United States or help a foreign nation. Which are precisely the sort of people who should be prosecuted.
8.21.2006 12:26pm
John (mail):
Lawyers need, from time to time, to turn down the marvelous engines of their minds, which can construct an argument that giving aid and comfort to our enemies is protected by our own laws.

Dickens' Mr. Bumble was told that his wife's misdeeds, in the eyes of the law, were his because "the law supposes that your wife acts under your direction."

Bumble replied with the famous rejoinder, "if the law supposes that, the law is a ass, a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience--by experience."

No doubt this was the basis of Holmes, "the life of the law is experience, not logic."
8.21.2006 12:40pm
Bruce Wilder (www):
So, the government can now prosecute people for publishing or otherwisse communicating information, the government does not want published.

The government simply has to declare that the information is is "classified".

That's pretty much the end of freedom and responsible government. Welcome to the fascist state.

As Bush has said, our President never stops thinking of ways to harm our country. At least now, we won't have to read or hear about it.
8.21.2006 1:18pm
ray_g:
"Any Washington insider who trades on classified information — not just reporters — is at risk."

And why is this a bad thing? I have had a clearance for a very long time, and it has always been the case that revealing classified information to uncleared people can result in prosecution. And quite frankly, those of us outside the Washington beltway are quite annoyed at how "Washington insiders" can casually handle classified info, disclose it or leak, actions that would almost certainly be prosecuted if one of us "outsiders" did it.

I find it interesting that you spend a large part of your column discussing the (IMO sensible) limiting language in the ruling. I don't understand all the cause for concern, other than an automatic response to any perceived restrain on journalists.
8.21.2006 1:20pm
byomtov (mail):
given that classification is based on how much damage release could do to the security of the US, I would think that would be a pretty compelling argument.

Mr. Bumble's might have something to say about that as well.
8.21.2006 1:21pm
Kristian (mail):

The government simply has to declare that the information is is "classified".

That's pretty much the end of freedom and responsible government. Welcome to the fascist state.

Nice hyperbole. There are any number of statements that follow that constuction. But point is, to this point, the government has not done those things.

As, are you positive about the fascist anology? I mean, tyranny, depostism or any other politicial system, but how does control of government generated info equate to fascism? Why not communsm (ala Cuba and China? Ah, right, the are the bete noir of the modern left, that would be like a complement to them...)
8.21.2006 2:08pm
Thorley Winston (mail) (www):
So, the government can now prosecute people for publishing or otherwisse communicating information, the government does not want published.

The government simply has to declare that the information is is classified".


Actually it has to show that (a) the information was already classified, (b) the classified information was leaked illegally to the recipient, (c) the recipient knew that they were receiving illegally leaked classified information, and (d) the recipient retransmitted the illegally classified information (e) knowing that retransmission could harm the United States or help a foreign nation.

Yep, we're becoming a regular fascist state.
8.21.2006 2:11pm
Thorley Winston (mail) (www):
Can journalists be prosecuted for knowingly reporting classified information related to the War on Terror? What about Washington lobbyists who pass on secret information concerning defense matters or foreign affairs?


If they know that they received the information illegally and that by retransmitting the information they could harm the United States or help a foreign nation, I hope that or any other person who committed such an action are prosecuted to the fullest extent of the law. Which is pretty much what the ruling in question said.
8.21.2006 2:16pm
sksmith (mail):
I agree with most of the commenters-I don't see much wrong with this ruling. But I'd be happy to be convinced otherwise. So for those who think this is a bad thing, what would the right thing be? I am assuming that we share a belief in the following:
There are secrets that the government can justifiably keep secret.

If we do share the belief that there are some secrets that are legitimately kept secret, and I accept your argument that it is immoral/unconstitutional/bad to punish people who publicize those secrets, then how does the government/military keep the secrets that we agree should be kept secret?

Steve
8.21.2006 4:09pm
Jonathan H. Adler (mail) (www):
In these discussions, I think it is helpful to make a distinction between those who violate confidentiality agreements or the terms of their employment (leakers) and those who engage in underhanded efforts to obtain classified information (spies), on the one hand, and private civilians who come into the possession of classified information without resort to espionage or theft, on the other. There is no First Amendment problem with going after the former. The concerns are with the latter.

In this case, for instance, there is no question that the Defense Department official who disclosed classified info should be published. The question is when, if ever, it is appropriate to punish those who were on the receiving end of the information. While I would not go so far as to say such people should never be prosecuted, I think that the First Amendment concerns are great enough that any statute criminalizing such conduct should be narrowly tailored to serve the federal government's compelling interests in barring the disclosure of truly damaging information (e.g. troop movements, atomic secrets, etc.).

The problem with the Espionage Act is that it is not so limited. The ruling in Rosen limits that Act somewhat, but not as much as I believe it should be limited.

Speaking for myself (and not my co-author) I would also argue that the case for forcing journalists to reveal their sources (and identify leakers) is actually stronger if the journalists themselves -- and others who receive leaks -- are not themsleves open to prosecution. If secrecy is a concern, the government should focus on those who have the secrets, not those to whom they are revealed.

JHA
8.21.2006 5:02pm
Buck Turgidson (mail):

...makes it more difficult for federal prosecutors to convict potential defendants engaged in constitutionally protected activity...


You really need an editor to look at your writing before it's published. Are you suggesting that one may be convicted for engaging in a constitutionally protected activity?
8.21.2006 5:18pm
Kristian (mail):

In this case, for instance, there is no question that the Defense Department official who disclosed classified info should be published.

Do you work for the NY Times or is the a typo?
8.21.2006 5:22pm
Jonathan H. Adler (mail) (www):
Kristian --

It's a typo. I meant "punished."

JHA
8.21.2006 6:28pm
ray_g:
JHA re post of 8.21.2006 4:02pm:

In the abstract I agree with you, there might be 1st Amendment problems with "..private civilians who come into the possession of classified information without resort to espionage or theft...", but let's look at specific cases - first, the defendants in the case in question: perhaps the legal case for espionage is weak, but that is what I would call what they did. And as far as journalists, I am sure that most in Washington D.C. (and elsewhere), while they may not actively solicit classified information, certainly make it plain that they will accept it. So this isn't just someone innocently stumbling across classified information and then telling someone about it.

And I'd like to raise, once again, the statement: "sounds a lot like what Washington lobbyists, reporters, and academics do every day". Outside of Washington D.C., under existing laws and regulations, these type of actions could well cost you your job and perhaps get you prosecuted. So why should beltway insiders and reporters get treated any differently?
8.21.2006 8:49pm
John (mail):
I think the phrase used by J.A., "private civilians who come into the possession of classified information without resort to espionage or theft" is an evasion. Did this info fall out of the sky onto their word processors?

If they came across the information innocently, and published it in ignorance of its classified nature, they surely will not be prosecutable. The question is, for those "private civilians who come into the possession of classified information" knowing full well what they are doing, should they be prosecuted? Well, of course they should. Forget about the statute--they have become agents of the leaker-felon, or co-conspirators. Their inclusion in the Espionage Act is just icing on the cake.

Is there something in between innocent news gathering and complicity in a felony? Probably. But that doesn't distinguish this criminal law from any others in particular.

Is the effort here just an exercise in where to draw the line? Or is it seriously contended that no circumstances involving God's give to mankind--reporters--would ever justify prosecution?
8.21.2006 9:35pm
dick thompson (mail):
I am wondering just why those who receive validly classified information they are not entitled to get, either on purpose or accidentally, and then pass this on or publish it should not be prosecuted. If you are going to let them off because they theoretically didn't know then you have just opened up a new spying apparatus. All I as a spy have to do to get away with it, assuming the person I tell doesn't squeal, is pass the info on to an innocent who will then either publish or pass it on to someone else. I can then pick the someone else and voila, I have just completed the passing of a secret to where I wanted it to go and nobody can do a thing about it. Convoluted but doable.

If I did not know that it was illegal to cross the street in the middle of a block and got a ticket could I just say that I was ignorant of the law and get the ticket squashed? That is the logic that I see in a lot of the comments above. I thought that ignorance of the law was not an excuse. Did it suddenly become one and we were not told?

At some point the government has to get serious about prosecuting the people who are breaking our laws on classified documents. To my way of thinking the most egregious was Sandy Burger. A man who had held the position of NSA and theoretically should have been more informed of the classified document laws takes documents from the National Archives and then, knowing full well that there are specific requirements for the destruction of classified documents and where that destruction should take place, destroys copies of those documents with some of the highest classification in the government at home. His penalty? For 3 years he can't get a security clearance. That's all? Now we are in the throes of multiple infractions of the security regulations by the media, infractions which put at risk the whole process of getting intelligence that might save the country, and we hear that if the recipient of the information did not know it was classified, then they should get off completely. Bull!!
8.21.2006 10:25pm
Evelyn Blaine (mail):
Two points about the Rosen decison:

1) I still don't think, in spite of what almost all commentators have said, that this clears the way directly for potential prosecution of the press. One of the major ambiguities in the interpretation of 793(e) is whether publishing falls under the heading of "communicates, delivers, transmits ... to any person not entitled to receive it." This wasn't addressed in Rosen, for the obvious reason that what the defendants were doing was clearly personal, confidential, directed transmitting and not publishing. But, as far as I know, no court has ever settled the question, and there's good reason to believe that when Congress means to include publishing it can say so, e.g. 18 USC 798. This was the argument that Douglas and Black made in the Pentagon Papers case (403 U.S. 713, 721); White and Stewart took no view on the matter (id., it's been contested, but it's not obviously wrong. (If it were up to me, I'd
8.22.2006 12:18am
Evelyn Blaine (mail):
Oops.

The cite to White &Stewart should have been id., 740, fn. 9. As I was writing before I hit the wrong button -

if it were up to me, I'd have no hesitation reading
793(e) as not encompassing publishing on lenity and constitutional avoidance grounds. I'm not predicting that that's what a court will do, but it's important to note that the opinion in Rosen doesn't foreclose this possibility; it doesn't address the question at all.

2) Many of the commentators keep making the mistake of writing as though 793 spoke about, or applied to, "classified information" as such. It doesn't. The phrase is "information relating to the national defence which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation." The mere fact of classification is neither sufficient nor necessary to establish this (although, given the requirement that the information be "closely held", almost all information that one could be prosecuted for disclosing would in actuality be classified). Remember that the Espionage Act antedates the current classification system and its governing executive orders by decades. Moreover, in his opinion, Judge Ellis notes that the potential damage requirement has been read back into the "information" term itself: "This important requirement is implicit in the purpose of the statute and assures that the government cannot abuse the statute by penalizing citizens for discussing information the government has no compelling reason to keep confidential" (p. 25).

When we slip into talking directly about "classified information", we overlook this important aspect of the statute: if there is no proven possible damage, then there is no proven violation, regardless of what's on the document label. This is important: there are a lot of things I don't like about the Espionage Act, but I'm thankful that it's not, even under its broadest interpretation, an Official Secrets Act-type statute that could be used to punish all disclosures of classified information. So Bruce Wilder's fear that
So, the government can now prosecute people for publishing or otherwisse communicating information, the government does not want published.

The government simply has to declare that the information is is "classified".

is, although understandable, significantly overblown.
8.22.2006 12:44am
Kristian (mail):
As a very naive, non-lawyer, what I don't understand is why this is not treated the same as we treat a fence, that is someone who accepts stolen property? Granted, this is data/knowledge/intellectual property, but still is IP that that is 'embezzled' from the lawful owners. Should not someone knowingly accepting stolen property face some sort of jeapordy?
8.22.2006 9:37am
sksmith (mail):
To follow up with two points:

1) In case one, a CIA civil servant gives information to a second party. That second party sells the information to Russian agents.
Two, a CIA civil servant gives information to a second party. That second party publishes the information in a newspaper. Is it the belief that both second parties are not prosecutable (really?), the second party in the second case is not prosecutable because he works for a corporation that happens to be called a 'newspaper,', or something different? (Furtheremore, I realize freedom of the press is a constitutional freedom, but does it follow that people who work for the 'press' actually have more freedom with regards to information than the rest of us? Or that we all enjoy the freedom of the 'press'?)
2) My understanding of the Pentagon Papers case was that it was ruled that the publication was acceptable because the information contained in it didn't deserve to be classified (in essence, that the government had unjustly classified what should have been freely available information). This is completely different from the argument being discussed here, that publication of classified information is protected regardless of whether it is justifiably classified or not. Is this a correct understanding of the Pentagon Papers? Because there are three different arguments: 1) the government can punish anyone for publicizing any information it deems to be classified, 2) the government can punish anyone for publicizing information that it deems to be classified, but it must defend its classification, and 3) the government cannot punish anyone for publishing any information. As far as I can tell, noone is defending 1. We are defending 2, and those who are troubled by this ruling are defending 3. Furthermore, again, as I understood, the Pentagon Papers case was an example of 2, not of 3.

Steve
8.22.2006 10:21am