Tuesday, January 17, 2006
A Question About Leaks
Justice Byron White’s opinion for the five-to-four majority began, “The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of the press guaranteed by the First Amendment. We hold that it does not.” White’s opinion was a scathing dismissal of the journalists’ position. “The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection,” he wrote. In short, he held for the Court that the First Amendment provides no “exemption from the ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function.”
This decision was expanded in McKevitt v. Pallasch in 2003, though the facts were slightly different in this case because no confidential sources were involved. But a critical aspect of Branzburg was expounded in Posner's ruling:
“We do not see why,” he wrote, “there needs to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.”
This affirmed the Branzburg Court's view that journalists are no different than ordinary citizens in the view of the Courts. In Branzburg:
...Justice Byron White declared that the petitioners were asking the Court "to grant newsmen a testimonial privelege that other citizens do not enjoy. This we decline to do." Justice White acknowledged the argument that refusing to recognize such a privelege would undermine the ability of the press to gather news, but wrote that "from the beginning of the country the press has operated without constitutional protection for press informants, and the press has flourished."
Imagine that.
Branzburg was again cited in 2004 in the Plame cause, when US District Court Judge Thomas Hogan refused to quash subpoenas issued to Matt Cooper and Tim Russert. Hogan wrote:
Because this Court holds that the U.S. Supreme Court unequivocally rejected any reporter’s privilege rooted in the First Amendment or common law in the context of a grand jury acting in good faith, this Court denies the motions to quash.
What does all this mean? If leakers aren't protected by the Courts, journalists are not given any special license to protect them either. Yes, 49 states and the District of Columbia have shield laws, but they do not apply in federal court. Given the increasing federalization of virtually every aspect of criminal law and the fact that leak cases involve national security, they are virtually certain to wind up in federal court, making state shield laws irrelevant. I believe TigerHawk favors some sort of federal shield law for journalists, but for this and many other reasons I most emphatically do not.
So why don't we prosecute reporters who leak classified information? Are they not, in effect, parties to a criminal act?
Reporters shouldn't need a law to tell them not to disclose classified information, especially in time of war. They should turn it over - immediately - to the appropriate oversight committee. Surely with their investigative talents, they are capable of ferreting out that information?
Why aren't we holding reporters (and potentially the corporations who employ them) legally accountable when they publish classified information (in other words, when they break the law)? I was curious, and so I did some checking:
Do press leaks do actual harm? You be the judge:
A recent classified study of media leaks has convincingly shown that leaks do cause a great deal of harm to intelligence effectiveness against priority national security issues, including terrorism. This is principally because the press has become a major source for sensitive information for our adversaries about US intelligence—what it knows, what it does, and how it does it. Unfortunately, serious leaks of US intelligence cumulatively provide substantial information to foreign adversaries. At CIA alone, since 1995 there have been hundreds of investigations of potential media leaks of Agency information, and a significant number of these have been referred to the Department of Justice for follow-up action. Leaks that have damaged the National Security Agency’s (NSA) signals intelligence sources and methods also number in the hundreds in recent years; dozens of these cases have also been referred to Justice. The National Imagery and Mapping Agency (NIMA) has experienced roughly a hundred leaks just since 2000 that have damaged US imagery collection effectiveness. Many dozens of leaks on the activities and programs of the National Reconnaissance Office (NRO) have also helped foreign adversaries develop countermeasures to spaceborne collection operations. DIA and the military services, too, have suffered collection losses as a result of media leaks.
While leaks of classified information are often intended to influence or inform US audiences, foreign intelligence services and terrorists are close and voracious readers of the US press. They are keenly alert to revelations of US classified information. For example, a former Russian military intelligence officer wrote:I was amazed—and Moscow was very appreciative—at how many times I found very sensitive information in American newspapers. In my view, Americans tend to care more about scooping their competition than about national security, which made my job easier.
In 1998, for example, as a result of an inappropriate leak of NSA information, it was revealed about NSA being able to listen to Osama bin Laden on his satellite phone. As a result of the disclosure, he stopped using it. As a result of the public disclosure, the United States was denied the opportunity to monitor and gain information that could have been very valuable for protecting our country.
So we know that on several occasions, leaks of classified information have both informed foreign intelligence services of secret information deleterious to our interests and harmed our own intelligence-gathering capabilities. Yet we do nothing. Why not?
Given the palpable history of failure to protect classified intelligence information from press disclosures—and given the epidemic proportions of leaks and the deleterious consequences they wreak in countermeasures that reduce the effectiveness of US collection—it is fair to question why past failed approaches should be expected to work today. They will not.
There has never been a general criminal penalty for unauthorized disclosures of classified intelligence. Although intelligence leaks technically can be prosecuted under the espionage statutes (18 USC §§ 793 and 798), only the single case, US v. Morison, ever has been. Given that literally thousands of press leaks have occurred in recent years—many serious and virtually all without legal penalty— it is clear that current laws do not provide an effective deterrent to leakers or to the journalists and their media outlets that knowingly publish classified intelligence.
Federal law enforcement officers would probably agree that bad laws are hard to enforce. A penetrating critique of what passes for anti-leak laws is provided in a comprehensive Note in the June 1985 Virginia Law Review by Eric Ballou and Kyle McSlarrow. Although written before the Morison prosecution, the chief points remain as valid today as when written. A key passage highlights the responsibility of Congress:The disjointed array of statutes shows that Congress does not have a comprehensive scheme to deal with the problem of leaks. The existing statutes either prohibit those disclosures with a specific intent to harm the United States or to advantage a foreign nation, or they apply only to a few narrowly defined categories of disclosures. The specific intent statutes do not apply to information leaks because of their high culpability standard. Those statutes are more appropriate to the problem of classic espionage. As a result, persons who leak [classified] information to further public debate may do so with impunity, as long as the information they disclose is not protected by one of the more narrowly directed statutes. A second infirmity of the specific intent statutes is that they only protect information relating to the national defense. These statutes do not cover diplomatic secrets, nonmilitary technology, and other nonmilitary secrets that affect the country’s security. The more narrowly directed statutes, although protecting some of this information, nonetheless constitute an incomplete solution to the problem of leaks. Congress has ignored large categories of information that should not be disclosed with impunity. In summary, Congress has not constructed a principled and consistent scheme of criminal sanctions to punish the disclosure of vital government secrets. Moreover, persons who leak government secrets are but one side of the problem; the government must also pursue remedies against those who publish secrets. Like the disclosure provisions, however, the statutes relevant to the publication of government secrets are vaguely drafted and incomplete.
It sounds to me like Congress has some work to do.
And we need to be on the phone to our local Representatives. What say you?
25 Comments:
By 
TigerHawk, at
Tue Jan 17, 07:49:00 AM:
I would have no problem with this if at the same time information was aggressively de-classified when it no longer served a genuine national security interest. The problem, though, is that there is no question that one administration or another will use the classification scheme to avoid legitimate scrutiny. The archtype, which "wrecked it for everybody," was the Pentagon Papers case. Those documents were nothing but a history of the escalation of the Vietnam war, including historical facts that had been previous kept secret, yet Nixon pulled out all the stops to prevent their release for no reason anybody can detect other than a desire to manage domestic public opinion. Perhaps we should rely on the idea that most information becomes stale in today's world, and that all non-technical data automatically declassifies after five years unless a specified officer certifies reasons why it should not.
If the Pentagon Papers case defines one end of the outrage, surely the recent behavior of the New York Times defines the other. While one might -- might -- make a plausible argument that the NSA case involved serious implications for domestic liberty (a point I do not accept, but many argue in good faith, I think), as you pointed out last night it is virtually impossible to conjure up a reason for the NYT's disclosure of the weak points in American body armor. (You would have been amused to have been in the Princeton Starbucks this morning, to witness me demanding that my poor wife explain why the New York Times is killing soldiers -- the heads didn't really turn, though, until she said in at a higher than necessary volume: "They want us to lose." Heh.)
By Gordon Smith, at
Tue Jan 17, 08:07:00 AM:
Cass,
We probably ought to shut the press down entirely or put it under government control, then we'd feel really, really safe.
You want to feel safe, right? Those dirty journamalists are treasoning us into destructodeathness, aren't they? We'll have to do away with them.
Maybe 'good news only' rules would be a good idea, that'd keep our spirits high and help us feel safe. And what government would ever operate shadily enough to warrant scrutiny by some pinko newspapers? We'd notice because there would be less good news in the 'good news only' papers.
Stupid newspapers.
By Gordon Smith, at
Tue Jan 17, 08:23:00 AM:
Al Gore responds:
"Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction. Justice Brandeis once wrote: "Men feared witches and burnt women."
The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk.
Yet, in the teeth of those dangers, they insisted on establishing the Bill of Rights.
Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of missiles poised to be launched against us and annihilate our country at a moment's notice? Is America in more danger now than when we faced worldwide fascism on the march-when our fathers fought and won two World Wars simultaneously?
It is simply an insult to those who came before us and sacrificed so much on our behalf to imply that we have more to be fearful of than they. Yet they faithfully protected our freedoms and now it is up to us to do the same."
By Cassandra, at
Tue Jan 17, 08:53:00 AM:
So you favor an exemption for the press to break the law?
Why is that, Screwy? Why, when the Supreme Court doesn't see a right for them to do what they are doing, you do?
You live in North Carolina. I live in Washington DC.
So yes, I imagine the danger seems a bit closer to me. And I imagine it all seems pretty distant to you.
But then your wife wasn't in that Pentagon on 9/11, was she? And your youngest son doesn't live in DC, and your oldest son doesn't patrol the corridor around the Pentagon. And you elderly parents don't live right on the outskirts of that area.
So things like suitcase bombs are just an academic exercise to you.
You won't get blown up. Neither will I.
So easy to dismiss.
By Cassandra, at
Tue Jan 17, 08:58:00 AM:
Maybe 'good news only' rules would be a good idea, that'd keep our spirits high and help us feel safe.
Or we can go with your rule: I don't want to hear about any news that scares me.
Because we all know there are no such thing as terrorists, nuclear bombs, anthrax, biological warfare, or any of those other things. And if anyone tries to tell you there are, they're just using "scare tactics".
Screwy's no bad news zone: it makes him feel icky.
Because everyone knows planes don't fly into buildings...until they do.
It will never happen in Screwy's America, and don't ever let those mean-spirited politicians dare to tell him differently?
Even if Al Gore was one of them when he was Vice President.
By Cassandra, at
Tue Jan 17, 09:01:00 AM:
And finally,
e probably ought to shut the press down entirely or put it under government control,
Try addressing my suggestion for ONCE, not knocking down straw men.
Tell me why journalists should be exempt FROM THE LAW when the courts have ruled otherwise.
By 
, at
Tue Jan 17, 10:39:00 AM:
Screwy,
Cass isn't advocating government control of the press, only the prosecution of journalists who break the law in leaking sensitive information that serves the enemies of America. That isn't denying them free speech but it protects those who serve and protect YOU.
Tell me, are you glad slavery in the south was abolished as one of the results of the Civil War?
Because if you are, while Willie Sherman loved a fress press, he also deplored their reporting of sensitive information, which Marse Robert used.
Scott Ritter summed up the liberal media's agenda when he stated that it was the press who made the decision about whether war was justified...not the threat of freedom to the country, not the threat of loss of life, or liberty, cultural freedoms, religion or not, as you chose...but the press.
Sorry, in that instance, I do not think a journalist with access to secrets
is capable of making that decision for me.
By TigerHawk, at
Tue Jan 17, 11:00:00 AM:
Boy, Cricket, are you right about the good General Sherman. I can't pull it out of my brain just now, but he had some famously harsh criticism of the press, which he definitely thought was giving aid and comfort to the enemy.
As I wrote a couple of weeks ago, journalists need to re-think this idea that they are journalists before they are citizens. If they reversed that strange polarity a lot of these damaging stories would not be published, or would be written to avoid the disclosure of the facts that damage the collective security.
By , at
Tue Jan 17, 11:08:00 AM:
It seems that the NYT series on the NSA does run afoul of the law -- there is a law forbidding the revelation of classified information, when that information refers to communication intelligence activities of the government.
By Cardinalpark, at
Tue Jan 17, 11:42:00 AM:
For Cass and Screwy:
All we have to do is enforce current law; we don't have to make new laws to "shut down the press." Why don't we?
I think the ramifications of arresting journalists are troubling to politicians, who would prefer to deal with the ramifications of a lost intelligence opportunity. Let's face it, Karl Rove is unlikely to advise the current administration to promte the arrest of James Risen. His concern is that this will make great political theater for Howard Dean and the ACLU, who will draw comparisons to Nixon - famously paranoid about the press.
Now if the Justice Department ultimately chooses to purse and arrest or series of arrests associated with the NSA leaks, independent of the White House, things could get interesting.
I don't think of this as a policy issue per se (unless the issue is selective enforcement, a good one). Justice simply needs to make sure this case is a slam dunk -- no close calls allowed. You can't turn James Risen into a martyr by having a half baked case or all hell breaks loose.
By Grim, at
Tue Jan 17, 12:24:00 PM:
+1 on TigerHawk's call for an aggressive declass process. Cassandra, at least, knows that is something I consider very important for a lot of reasons.
It's hard for a Republic to survive when the citizenry has to wait eighty years to find out important parts of what their government is up to. We can't even start drawing lines, or erecting general principles, to control government power. Secrecy is sometimes necessary, but we also need -- need! -- to declass data as fast as possible.
That said, the people who published diagrams of body armor weak points should be shot.
By , at
Tue Jan 17, 12:44:00 PM:
Asking Screwy: How many times have the Dems & the LSM & their minions & Al Gore used the
phrase:
"No one is ABOVE THE LAW!"
Must they add the disclaimer
"except the press"?
Polipundit reports that the ACLU and the other "usual suspects" have filed:
“ACLU Sues to Stop Domestic Spy Program“
Excellent.
With any luck, those lawsuits will be above-the-fold news come late-October.
If you catch my drift ….
-- Jayson
Posted at 10:10 am Link to this post | Comments (53)
GO ACLU GO!
By , at
Tue Jan 17, 01:38:00 PM:
Well, you can also make the argument that no one is above the law unless they are AlGore & Co.
But that is another thread for another time.
By Gordon Smith, at
Tue Jan 17, 03:37:00 PM:
Correct me if I'm wrong... 8-)
The 'leaker(s)' were/are government employees. The NYT met with Bush in the White House weeks before the piece came out. He could have sicced the A.G. on 'em right then. Hell, they knew the NYT was sitting on the story for a year.
The C-in-C could have used the power of the government to enforce the law...if, of course, any laws were actually broken.
I'll look forward to the day when calmer heads are interested in abuses of power in the executive as much as they are interested in the press reporting the facts.
Echelon, and systems like it, have been public for over a decade, since the EU published a report about it. This is not new information - except to Americans. You think A.Q. doesn't know about data mining? Nonsense.
President Bush knowingly and willfully broke the law. He's probably still breaking the law.
Get a frackin' warrant, Mr. President. Protect our laws, don't break them. We all want to prevent terrorist attacks, but some of us also want to prevent government abuses.
By , at
Tue Jan 17, 04:40:00 PM:
The USA doesn't have an Offical Secrets Act, and never has had. The USSR had great control of state secrets. Where are they and where are we? The United States has prospered for over 200 years without this kind of law. Carry on.
By Cassandra, at
Tue Jan 17, 05:08:00 PM:
if, of course, any laws were actually broken.
Screwy, to you this seems not even to matter.
According to you, the press should be able to leak any classified information they want to and get away with it. This is what I do not understand.
Either a thing is right or it is not. Apparently to you, even if it is illegal, it is still just fine and dandy with you, depending on who does it.
And furthermore, the rightness of it depends on whether it is prosecuted or not! Even when prosecuting it may draw more attention to it, when what you're trying to do is keep it quiet.
A very convenient philosophy...for the criminal. And for you.
But not really very moral. I'm sure it goes over in a big way in jail, though.
By spd rdr, at
Tue Jan 17, 05:36:00 PM:
Well documented piece, Cass. Screwy, perhaps you should direct your arguments towards refuting the case decisions cited rather than throwing red herrings about. The topic is whether the any law regarding the pulication of sensitive information by journalists can be enforced, not whether some one is listening to your cell phone conversation.
Clearly, the statutory requirement of "specific intent" hobbles any real enforcement of the illegal exposure of classified information. I seriously doubt that any reporter at the NYT or the Washington Post would deliberately seek to harm the national defense. This practice, as with all things in Washington, is merely another tool to further a political agenda. And because of that simple fact, the manuever is unworthy of protection.
Moreover, the last time I checked the Constitution, it said nothing about the public's "right" to know everything, but there was a line in there about Congress "providing for the common Defense." Surely a people as bright as we can determine what information would thwart that vital mission. That's what any change in the law should target. Not whether the actor had malicious intent, but that person's actions were willful, and in reckless disregard for the national defense. A "gross negligence" standard.
By , at
Tue Jan 17, 06:01:00 PM:
"So why don't we prosecute reporters who leak classified information? "_____Because governments always tend to declare as secret things which are merely embarassing. It is one of the jobs of the press to uncover such secrets.
By , at
Tue Jan 17, 06:02:00 PM:
From the Quotable General William T. Sherman. Not a 21st century PC guy.
"I hate newspapermen. They come into camp and pick up their camp rumors and print them as facts. I regard them as spies, which, in truth, they are."
William T. Sherman (Really! Jesus Christ on a crutch! How did the Constitution survive that one!)
"I think I understand what military fame is; to be killed on the field of battle and have your name misspelled in the newspapers."
William T. Sherman
(or perhaps, not have your name or deed mentioned much at all!)
"If I had my choice I would kill every reporter in the world, but I am sure we would be getting reports from Hell before breakfast."
-Willima T. Sherman
(I'll drink to that one! News from Hell!)
What if.
What if a major news paper knew about the fact that the Brits and the US could read German encrypted Enigma messages in WWII? That was the single most important tool needed to win the "Battle of the Atlantic", as we were able to ferret out the U-Boat wolfpacks with the reading of the Enigma codes, and route convoys around them. Without that bit of intelligence, we could have LOST that war. But that is rank revisionism, I guess.
-David
By Cassandra, at
Tue Jan 17, 06:21:00 PM:
mr. rdr makes the right argument(finally). Thank you. I have been too busy to get back to this.
It's in the post. The problem with bad laws (or poorly-written laws) is that they are impossible to enforce. So you *do* need new laws.
We saw (from my last post) that even when there is a case law on point, it is not always followed faithfully.
And even when a statute speaks to the issue, if it is poorly written, it will not be enforceable in court. If prosecutors have to prove intent to harm national security... well, that is next to impossible. That is why an espionage statute is worthless against journalists.
This is what Congress is supposed to do when laws aren't doing their job: fix them. If we've had literally hundreds of leaks and only one prosecution, there is clearly something wrong with the law. The linked article stated as much, I believe. I will have to go back and check when I have the time - I was awfully sleepy when I read it this morning.
Anyway, this isn't rocket science - just common sense. Not all of these cases need to be prosecuted. Many could be handled internally.
But some should be. If the government hasn't prosecuted *any* leaks, then we're hardly dealing with overweening prosecutorial power here, are we? Seems the balance is rather tilted the OTHER way.
By spd rdr, at
Tue Jan 17, 07:32:00 PM:
I am just grateful that the Founding Fathers didn't rely on me to type the Constitution. I apolgize for my miserable command of the qwerty system.
By Cassandra, at
Tue Jan 17, 08:45:00 PM:
It's that damned Shrub.
He keeps stealing people's vowels. If we don't repeal the Patriot Act soon the entire alphabet will end up down in some airless cell in Gitmo with a pair of frilly panties on its head.
By spd rdr, at
Tue Jan 17, 10:12:00 PM:
By Gordon Smith, at
Tue Jan 17, 10:49:00 PM:
"The 'leaker(s)' were/are government employees. The NYT met with Bush in the White House weeks before the piece came out. He could have sicced the A.G. on 'em right then. Hell, they knew the NYT was sitting on the story for a year.
The C-in-C could have used the power of the government to enforce the law...if, of course, any laws were actually broken."
I love quoting myself.
If the press was breaking the law, then the President of the United States had and has recourse. I don't have enough legalese to render it legalistically, but it seems that when a group of government employees leaks sensitive information to the press that the first question we need to answer is this - Are they whistleblowers or traitorous treasoners?
To answer this question, we must know whether the actions of the NSA and the President were illegal (whistleblower) or legal (traitorous treasoners). Let's solve that one first, eh?
I'm not sure that the current laws even apply to the type of technology being used in the data-mining program. But it's worth finding out.
And, for God's sake, why can't he get a warrant? Because that would be allowing for oversight, and we know the President, the Veep, and inner circle don't care much for oversight.
By Cassandra, at
Wed Jan 18, 06:38:00 AM:
Well OK spd, but only if they're the red ones.
Screwy, you almost made me spit out my coffee :)
I am thinking about your questions. They actually gave me an idea for a post but I have to work this morning so it will probably have to wait a bit.
