Statutes Criminalizing Leaking of Classified Information
We believe strongly, as do most in the defense bar, in the public’s right to know—a right protected by the First Amendment’s freedom of the press. However, our belief is not unequivocal. We also believe the Government has legitimate national security interests in not disclosing some “classified” information, especially when the disclosure would put the general public, Government employees, and Government undercover operatives (or their families) at legitimate risk of harm or death. Balancing these often competing interests is a delicate process, but at the end of the day when there is a legitimate risk of harm, we believe the Government’s national security interest in non-disclosure can trump the public’s right to know. However, this compelling interest ceases to exist when it directly conflicts with the 4th Amendment or violates the laws as they currently exist.
We will now attempt to context these beliefs against two recent high-profile cases in which the Government “investigated,” in varying degrees, two media organizations for publishing stories based on “leaks” of classified information concerning national security—the Associated Press and Fox News. Let us begin with this observation: there is a significant difference between a “leaker” and a “whistleblower.” Some media pundits have used the two terms interchangeably when referencing “sources” involved in the AP/Fox stories.
The bottom line is this: a person (or a “source”) who “leaks” classified or confidential information from Government documents, in violation of law, is a criminal. While, contrary to popular opinion, there is no one specific law that criminalizes the disclosure to classified information, the Huffington Post last June reported that there are a “patchwork of laws”—most flowing from the Espionage Act of 1917—the Government can use to prosecute individuals who leak classified information to persons unauthorized to receive it. These laws are:
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18 U.S.C. § 793: Provides that a person who lawfully possesses or has access to “information respecting the national defense,” and who willfully discloses that information to someone not authorized to receive it, may be subject to imprisonment for up to ten years, a fine of up to $25,000, or both.
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18 U.S.C. § 798: Prohibits the knowing and willful transmission of specified classified information to an unauthorized person. This information pertains only to information about the communications intelligence systems and activities of the United States.
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18 U.S.C. §§ 795, 797: Prohibits the unauthorized creation, publication, sale, or transfer of photographs or sketches of vital defense installations or equipment, as defined by the President.
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The Intelligence Identities and Protection Act of 1982: Criminalizes the disclosure of the identity of covert intelligence agents, as in the Valerie Plame case.
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18 U.S.C. § 641: Criminalizes the theft or conversion of government property or records for one’s own use or use of another person. This Act, in conjunction with 18 U.S.C. § 793(d), has been used to prosecute disclosure of classified information to the media.
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At a minimum, these laws reflect a general intent of Congress to protect from disclosure classified information to anyone not authorized to receive it. Thus, individuals who “leak” classified information can be prosecuted criminally. For example, a Republican “source” recently released information from emails between the State Department, the White House and the CIA in the wake of the attack on the consulate in Benghazi to ABC’s White House correspondent Jonathan Karl.
This past February the general counsel for the national intelligence director’s office “briefed” the leadership and staff of the Senate Intelligence Committee, the leadership and staff of the House Intelligence Committee, and an aide to Speaker John Boehner. The information “leaked” by a Republican government official or employee proved to be false and was leaked to Karl to embarrass the Obama administration in the “Benghazi scandal.” Whoever leaked that information to Karl may have violated law and should be investigated. The media, however, has been strangely silent on this issue.
A “whistleblower,” on the other hand, is someone who provides information, either to law enforcement or the media, about criminal wrongdoing—more often than not involving government officials. For example, disclosure of information about the abuse of prisoners at Abu Ghraib, waterboarding torture of terror suspects, or sexual assaults in the military are legitimate “whistleblowing” activities. The Government does not have a legitimate interest of any kind to keep this kind of information secret. The only interest it would have in non-disclosure would be the self-serving interest not to be politically embarrassed by its disclosure.
This brings us, first, to the AP story. Last year the respected news organization learned that the CIA had foiled a plot by a Yemeni Al-Qaeda group to blow up a U.S. bound airliner. The CIA learned about the plot through a planted agent in the terror group who agreed to be the “bomber.” The undercover operative was even provided with a bomb made a notorious explosive expert in the terror group. With the plot foiled and the bomb in the hands of the FBI, the CIA planned to re-insert their double-agent back into the terror group to undercover additional information about other plots.
When the Government learned that the AP was about to run a story on the foiled plot that would put its undercover agent, and his family, at risk, they requested that the news organization hold off running the story because of the CIA’s ongoing investigation. The AP agreed, holding the story for several days before learning that the government was about to announce its version of the foiled plot. The AP then published its own version of the story the day before the Government’s official announcement. The AP story, and follow-up media reports, effectively ended the Government’s efforts to use the undercover operative in future investigations. The FBI, intelligence community, and Congressional leaders expressed outrage at the AP story, calling for an FBI investigation into whoever leaked the information about the foiled plot to the news organization.
Utilizing its subpoena powers to secure information about the press, which is outlined in 28 C.F.R. § 50.10, the Justice Department issued a “secret subpoena” for the cellphone/landline phone records of five AP reporters as well as two fax lines used by the reporters. The subpoena also covered 21 phone lines in five AP offices where 100 reporters work. When the news organization learned about the secret monitoring, it expressed outrage, mimicked by most other news media, that the Government had trampled the First Amendment.
Amid all this media hysteria, two important issues got buried: First, the AP report undeniably put the life of the undercover operative, and the lives of his family, at risk, and put the lives of many other Americans at risk because the undercover operative could no longer uncover future terror plots. Second, the individual who leaked the information to the AP committed a crime and put the AP in a position of being potential unindicted co-conspirator in the commission of that crime, depending on its role in the leaking.
The Fox story is remarkably similar. The Washington Post broke the story that the Justice Department in 2009 launched an investigation into possible leaks of classified material about North Korea. The investigation began after Fox News’ chief Washington correspondent James Rosen broke a story that U.S. intelligence officials “were warning that North Korea was likely to respond to United Nations sanctions with more nuclear tests,” according to the Post. Rosen reported that the CIA had gathered this information “from sources inside North Korea.” The Rosen story was published online “the same day that a top-secret report was made available to a small circle within the intelligence community.”
One of the people inside that circle was a government adviser named Stephen Jin-Woo Kim who enjoyed a top-level security clearance as a “State Department arms expert.” The FBI used its investigatory powers to gather security-badge data, phone records and email exchanges which apparently established that Kim broke the law, and as an FBI affidavit put, Rosen “at the very least [was] either an aider, abettor and/or co-conspirator” in breaking the law with Kim. There is reason to believe that Rosen aggressively pursued the disclosure of classified information from Kim; that he knew the disclosure of such information was a crime; and that he actively engaged with Kim to break the law in order to get a “scoop,” to create “breaking news.”
Thus, we come back to the original issue of when does the public’s right to know end and the Government’s interest in non-disclosure of classified information begin. While we concede this a delicate balancing issue, we simply cannot countenance news reporters and/or news organizations who put the lives of cooperating individuals (as well as their families) at risk in order to “scoop” other media outlets. The news media has no apparent problem with aiding and abetting violations of the law to get its hands on classified information, but decry investigative attempts by the Government to learn who broke the law by putting that classified information in the media’s hands.
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We do not agree with wholesale Government spying into the private lives of the nation’s citizenry or any attempts to stifle, even chill, a free press. But we must support the position of President Obama who said his administration would offer no “apology” for its action in the AP case. We think the “no apology” position applies to the Fox News/Rosen case as well. The primary goal of the news media is to report about wrongdoing, not to participate in it. It appears that these were not cases about whistle-blowing, but leaking, and leaking for purpose of political or financial gain.[/box]