[net-gold] Secrecy News -- 08/04/11
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
- To: Net-Gold -- Educator Gold <Educator-Gold@xxxxxxxxxxxxxxx>, Educator Gold <Educator-Gold@xxxxxxxxxxxxxxxx>, net-gold@xxxxxxxxxxxxx, Net-Gold <Net-Gold@xxxxxxxxxxxxxxx>, NetGold <netgold@xxxxxxxxxxxxxxx>, Net-Gold <net-gold@xxxxxxxxxxxxxxxx>, K-12ADMINLIFE <K12ADMIN@xxxxxxxxxxxxxxxxxxx>, K12AdminLIFE <K12AdminLIFE@xxxxxxxxxxxxxxx>, MediaMentor <mediamentor@xxxxxxxxxxxxxxx>, Digital Divide Diversity MLS <mls-digitaldivide@xxxxxxxxxxxxxxx>, NetGold <netgold@xxxxxxxxxxxxxxxx>, Net-Platinum <net-platinum@xxxxxxxxxxxxxxx>, Sean Grigsby <myarchives1@xxxxxxxxxxxxxxx>, Net-Gold <NetGold_general@xxxxxxxxxxxxxxxxx>, Temple Gold Discussion Group <TEMPLE-GOLD@xxxxxxxxxxxxxxxxxxx>, Temple University Net-Gold Archive <net-gold@xxxxxxxxxxxxxxxxxxx>
- Date: Thu, 4 Aug 2011 14:30:28 -0400 (EDT)
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Date: Thu, 4 Aug 2011 09:10:58 -0400
From: Steven Aftergood <saftergood@xxxxxxx>
To: Steven Aftergood <saftergood@xxxxxxx>
Subject: Secrecy News -- 08/04/11
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SECRECY NEWS
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from the FAS Project on Government Secrecy
Volume 2011, Issue No. 75
August 4, 2011
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Secrecy News Blog:
http://www.fas.org/blog/secrecy/
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** IS UNAUTHORIZED RECEIPT OF CLASSIFIED INFO A FELONY?
** OLC OPINION NOTES ROLE FOR CONGRESS IN CLASSIFICATION
** FEDERAL SUPPORT FOR ACADEMIC RESEARCH, AND MORE FROM CRS
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IS UNAUTHORIZED RECEIPT OF CLASSIFIED INFO A FELONY?
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Could the unauthorized receipt of classified information be a felony? Judge
Leonie M. Brinkema made that startling claim in passing in a July 29
memorandum opinion in the case of suspected leaker Jeffrey Sterling that was
unsealed yesterday. But her statement is almost certainly a
misunderstanding and a misrepresentation of the law.
http://www.fas.org/sgp/jud/sterling/072911-memop.pdf
Judge Brinkema's memorandum opinion, first reported and released by the New
York Times, was written to substantiate an order issued last week that
limited the scope of testimony of Times reporter James Risen in the upcoming
trial of Mr. Sterling, and excused Mr. Risen from identifying his source,
who the prosecution says was Mr. Sterling. The newly released opinion
affirmed the existence of a qualified reporter's privilege which protects a
journalist's confidential relations with a source under some circumstances.
http://mediadecoder.blogs.nytimes.com/2011/08/03/
But astonishingly, in her explanation of why certain remarks previously made
by Mr. Risen to a third party would not be considered hearsay and could be
admitted at trial, Judge Brinkema wrote (at page 25):
"Risen's statements are adverse to his penal interest because receiving
classified information without proper authorization is a federal felony
under 18 U.S.C. 793(e)."
This seems quite wrong. The espionage statutes including 793(e) are
notoriously ambiguous and susceptible to multiple, conflicting
interpretations, but no one has ever read them as Judge Brinkema did.
Section 793(e) deals with unauthorized transmission of classified
information; contrary to her assertion, it does not prohibit unauthorized
receipt at all.
Judge Brinkema offered further support for her claim: "see U.S. Sentencing
Guidelines Manual [section] 2M3.3 (providing a base offense level 29 for
convictions for the 'Unauthorized Receipt of Classified Information.')," she
wrote.
http://www.ussc.gov/guidelines/2010_guidelines/Manual_HTML/2m3_3.htm
But upon inspection, that citation does not hold up either. Section 2M3.3
provides sentencing guidelines for multiple statutes (18 USC 793d, e, and g;
18 USC 798; and 50 USC 783), one of which -- 50 USC 783b -- does indeed
concern unauthorized receipt of classified information.
But that one applies only to agents or representatives of a foreign
government, or to members of a Communist organization.
In other words, unless Mr. Risen is a foreign agent or a Communist, there is
no statute that specifically prohibits him from receiving classified
information without authorization. There just isn't.
(Footnote 6 of the new opinion adds: "The government clearly recognizes
Risen's potential exposure to criminal liability and has offered to obtain
an order of immunity for him." The nature of the supposed criminal
liability or the proposed immunity was not spelled out. Nor, of course, has
Mr. Risen actually been charged with any offense.)
Judge Brinkema got it wrong, I believe. That can happen. The point is
incidental to her larger argument, but unfortunately it adds new confusion
to an area of the law that is already complicated and contested. Ideally,
one hopes that she would see fit to correct the record.
OLC OPINION NOTES ROLE FOR CONGRESS IN CLASSIFICATION
A newly disclosed opinion of the Department of Justice Office of Legal
Counsel (OLC) concludes that if information gathered in the course of
surveillance under the Foreign Intelligence Surveillance Act (FISA) is used
to revoke an individual's security clearance, then that individual is
generally entitled to receive notice of the information that was used
against him -- unless the information is subject to executive privilege.
http://www.fas.org/irp/agency/doj/olc/fisa-clear.pdf
The June 3, 2011 opinion also briefly addresses the subject of congressional
involvement in classification policy and allows for a carefully hedged role
for Congress.
"We agree with the FBI that the President's constitutional authority to
classify information concerning the national defense and foreign relations
of the United States and to determine whether particular individuals should
be given access to such information 'exists quite apart from any explicit
congressional grant'...," wrote Caroline D. Krass, then the acting head of
the Office of Legal Counsel.
"But that does not imply that Congress entirely lacks authority to legislate
in a manner that touches upon disclosure of classified information," she
added.
"For example, we believe Congress's authority to regulate foreign
intelligence surveillance under FISA, and to regulate the terms of federal
employment, does, as a general matter, permit Congress to impose the
notification requirement [when FISA-derived information is used in other
legal proceedings], even when that requirement reaches proceedings
concerning security clearance revocations," she wrote.
This does not really break any new ground in classification policy or
politics. Nor does it exhaust the subject of congressional authority with
respect to classified information. But it is noteworthy to have it
re-stated publicly and officially nevertheless.
FEDERAL SUPPORT FOR ACADEMIC RESEARCH, AND MORE FROM CRS
Recent reports from the Congressional Research Service that have not been
made readily available to the public include the following.
"Federal Support for Academic Research," June 17, 2011:
http://www.fas.org/sgp/crs/misc/R41895.pdf
"Financial Aid for Students: Print and Web Guides," June 24, 2011:
http://www.fas.org/sgp/crs/misc/RL33451.pdf
"Patent Reform in the 112th Congress: Innovation Issues," June 30, 2011:
http://www.fas.org/sgp/crs/misc/R41638.pdf
"Congressional Nominations to U.S. Service Academies: An Overview and
Resources for Outreach and Management," July 5, 2011:
http://www.fas.org/sgp/crs/misc/RL33213.pdf
"Real Earnings, Health Insurance and Pension Coverage, and the Distribution
of Earnings, 1979-2009," July 6, 2011:
http://www.fas.org/sgp/crs/misc/RL33835.pdf
"Challenge to the Boeing-Airbus Duopoly in Civil Aircraft: Issues for
Competitiveness," July 25, 2011:
http://www.fas.org/sgp/crs/misc/R41925.pdf
"Statutory Limits on Total Spending as a Method of Budget Control," July 26,
2011:
http://www.fas.org/sgp/crs/misc/R41938.pdf
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_______________________________________________
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Secrecy News is written by Steven Aftergood and published by the Federation
of American Scientists.
The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/
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Support the FAS Project on Government Secrecy with a donation:
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_______________________
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Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@xxxxxxx
voice: (202) 454-4691
twitter: @saftergood
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Other related posts:
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