Prague Twin

Saturday, May 27, 2006

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.

12 Comments:

  • In my mind, when the Code has written in it the word "publish" (section (a)) this can certainly be meant to inference the "press". Then section 3 is the nail in the coffin for the “press" as that language strikes at the core of what we are talking about.

    Now we can argue as to whether we don’t agree with these sections of U.S.Code, and that would be a great debate, but I think the Code itself is clear, and I think it has clearly been violated by the press.

    By Anonymous Arch Stanton, at 3:24 PM  

  • The use of "publish" also cought my eye, but I think there is one other consideration in that first part that you should consider...

    otherwise makes available to an unauthorized person

    I think the presumption there is that if you are making it available to an unauthorized person, you are an authorized person.

    Did you even read the whole post?

    This has already been debated, by the Senate, and your side lost.

    That doesn't mean the neo-con fascists won't win this time around, but let's just hope not.

    The freedom of the press shall not be abridged.*




    *unless the people can be sufficiently frightened into giving up their most basic rights in the interests of saftey

    That is how it reads, right?

    By Blogger Praguetwin, at 3:43 PM  

  • Yes, as it says - otherwise makes available to an unauthorized person - and as I posses no security clearance whatsoever, I AM an unauthorized person. And yes - as I always do - I did read the whole post.

    By Anonymous Arch Stanton, at 4:02 PM  

  • So why has the press been sheilded from this law (and other civil laws regarding trade secrets)?

    By Blogger Praguetwin, at 4:49 PM  

  • Arch,

    You also missed the point about giving it to an unauthorized person. There is an asumption that the person disseminating the information has an authorization. The press does not meet this criteria.

    Imagine if the press broke a story and everyone heard it. Now, would it be illegal for me to post about it? If all the bloggers picked up an illegal story, would everyone be arrested and then the society as a whole prevented from talking about it because it is a government secret. Sure, you could talk about it with people who already know, but what about kids 10 years later who don't know the story? Would I be prevented from telling my own child about something I know to be classified because he is "unauthorized"?

    The point is that shrewd interpretaion of the law focuses its scope on the authorized person who gives the information to the general public, whether that be the press or any other unauthorized person.

    If the law is expanded to include anyone who disseminates the information, then we live in a country (well I don't but you do) where we fear talking about certain subjects for fear of government reprisal.

    And THAT, my friend, is facism. When the people are sufficiently suppressed from speaking out about the transgressions of the state, whether by fear (terror) or by statute. you live in a police state.

    Is that what you want?

    By Blogger Praguetwin, at 5:03 PM  

  • grammar note:

    the second to last period should be a comma

    By Blogger Praguetwin, at 5:05 PM  

  • The integrity and wording of any law is, in the end that defined by the (in the US case) Supreme Court.
    That requires contesting the laws application to specific areas, surely.
    The big problem with that is that someone must be willing to challenge it.
    Given what we see as the 'dual' systems of law currently operating in the States; ie. one law for the people, another for the administration, I can't see where the government would want to expose themselves to that test.
    It is more likely the government would bluster and threaten, then back off it it came to a fight which would expose them.
    The point being, it all rather academic really. Doubly so when most of the media are more than compliant anyway.

    By Blogger Cartledge, at 6:18 PM  

  • P.T. So what you are saying is this: While an authorized person may not pass said information to an un-authorized person, an un-authorized person may pass it to another un-authorized person with out having to fear any legal prosecution. No?

    By Anonymous Arch Stanton, at 7:46 PM  

  • Arch,

    In most circumstances, yes.

    To date, this is generally how it has been interpreted.

    This system further encourages authorized persons to withhold information when they know that the unauthorized person will suffer no penalty for disclosing the information on to the next person.

    Having said that, there are different levels. For instance, a contractor on a state contract job may find out about something that he should keep to himself. Sending the blue prints to a bridge to his freind in Pakistan could be a problem. But usually in these circumstances, the contrator signs an agreement to secure sensitive material to the greatest extent possible without impeeding his ability to do his job.

    Generally, information that is classified is known to be classified, and the people entrusted with it know what the consequences are of disclosing that information, both in terms of the damage it could cause to the country, and the penalties they face for disclosing it.

    Once someone goes to the press with the information, he has illegally declasified it. There is an expectation that that information will become immediately public.

    The press, however, as Cartledge points out, is largely self-regulatory. If an agent of the press has ever managed to get its hands on a code, they have not published it.

    This is the chance we take to live in a free society. We counter thE threat with strict enforcement of the disclosure laws on THOSE WHO ARE ENTRUSTED TO SECURE INFORMATION.

    Period.

    Carteldge,

    You make a very good point about muddling the law, and the necessity of a challenge to it. But I think this is a huge issue. If they expand this law to try and prosecute the press for disclosing classified information, there will be a test, and if it is upheld, we live in a closed society.

    The press has been largely self-regulated, but the Eastern-European prison story is really troubling the administration.

    Furtheremore, blogs have been upheld as "legitimate media" in a California civil case. The journalists "sheild law" was extended to a blogger who disclosed an Apple trade secret. The judge didn't want to get into "what is and isn't legitimate media."

    So the administration is frightened. Also, Gonzales is a bull-dog. He wants to extend enforcement of all laws on everyone (except of course the president).

    By Blogger Praguetwin, at 10:30 AM  

  • I think that we've not had to muzzle the press with prosecutions for leaks of any sort of classified material because, throughout most of our history has been the proper combination of smart and patriotic. That is, they could see the harm publishing a secret could do and didn't want that harm to happen. If we have to prosecute now (and I'm a big fan of doing so) it's because the press is stupid and apatriotic. Also publish is in libel and slander law a term of art that means tell one other person somehow.
    It is not abridging freedom of the press to allow it to be sued for libel or to prosecute for crimes that apply to all citizens. It's a law that only applies to the press which Mason and Madison were worried about. Or so I believe. Good posting and discussion in the comments.

    By Blogger Roger Fraley, at 3:09 AM  

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