Leaking Classified Information

I am in a debate with my favorite sparing partner regarding the interpretaion of US CODE: Title 18, Part 1, Chapter 37 whose interpretation is in debate. At question is to whom the enforcement of these laws will extend.

The law addresses the disclosure of classified information in Paragraph 798. "Disclosure of classifed information"

Here it is stated:

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
Shall be fined under this title or imprisoned not more than ten years, or both.

The enforcement of this law, up until now, has been limited mostly to government officials who have a security clearance and thus are privy to said information. The law has been generally employed to punish those who breach the internal communication sealed loop. I think according to this law, if a government official were to give some information to a friend who did not work for the government, it would be hard to prosecute the friend if he were to go to the press, but it may be possible, especially if the friend was likely to understand that the information was being given with an understanding of confidentiality.

But the reporter who then publishes the information has yet to be prosecuted in the history of the United States as this memo excerpt from the University of Chicago Faculty Blog points out.

In his memo, Geoffrey Stone lays out three seperate types of classified information.

But, of course, there are secrets and there are secrets, and in exploring this matter it may be helpful to distinguish three different types of secrets. First, there are what we might call “illegitimate” government secrets. In this category of secrets, government officials are attempting to shield from public scrutiny their own misjudgments, incompetence, misconduct, venality, cupidity, corruption, or criminality. In a self-governing society, it is vital that such secrets must be exposed. What makes this difficult is that government officials attempting to maintain such secrets may invoke the claim of national security as a cover. We know from historical experience that this happens all-too-often.
Second, there are “legitimate but newsworthy” government secrets. The publication of such a secret may harm the national security and have substantial “value as a step to truth.” For example, the publication of secret information that Army rifles routinely misfire might be both harmful and beneficial to the national interest. Or the publication of secret information that the security of our nuclear power plants is inadequate might both endanger and further the national interest. In such situations, it is often difficult to know which effect predominates.
Third, there are “legitimate and non-newsworthy” government secrets. The public disclosure of such secrets may harm the national security and have only “slight value as a step to truth.” An example would be a publication disclosing that the United States has broken the enemy’s code, in circumstances in which this disclosure furthers no legitimate public interest. Of course, whether any particular publication furthers a legitimate public interest is commonly a matter of dispute, so it may be easier to state this category in the abstract than to apply it in practice.

I had foolishly broken it down in my mind to only 2 (the first and the third) but SOME people cannot see the difference between the three. (You know who you are).

This is a complex issue, and one that has been debated in the past. I for one agree with the principle that the government has the obligation in the interests of a free society to let the press disseminate information that they acquire from government sources. The government also has the right and obligation to go after the person or people who broke their oath not to disclose such classified information.

Recently, Alberto Gonzales has raised the issue again.

"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," Gonzales said, referring to prosecutions. "We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected."

Aside from the fear-baiting, Gonzales is also wrong to ignore history. The same debate took place in 1917 and rightly, the Congress decided that it was best to stick to a "prosecute at the source" policy in the interests of a free society. The press was free to report without fear of prosecution and the security of the nation was not comprimised, nor has it been since, as a result of a press release.

Considerations of widening the interpretation of this law have been on the table since before 9/11, interestingly enough.

In my humble opinion, it would be a shame to restrict the press in a way that has not been done in the entire history of the United States. Should Mr. Gonzales get his way, it will be a very sad day indeed for all of us.

Freedom of the Press