[net-gold] Secrecy News -- 09/27/10
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
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- Date: Mon, 27 Sep 2010 12:26:50 -0400 (EDT)
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Date: Mon, 27 Sep 2010 10:53:45 -0400
From: Steven Aftergood <saftergood@xxxxxxx>
To: saftergood@xxxxxxx
Subject: Secrecy News -- 09/27/10
SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 77
September 27, 2010
Secrecy News Blog:
http://www.fas.org/blog/secrecy/
** IS PUBLICATION OF CLASSIFIED INFO A CRIMINAL ACT?
** DNI DIRECTIVE ON UNAUTHORIZED DISCLOSURES (2007) RELEASED
** FOIA, TRADE SECRETS, AND MORE FROM CRS
** VARIOUS ITEMS
IS PUBLICATION OF CLASSIFIED INFO A CRIMINAL ACT?
When Wikileaks published tens of thousands of classified U.S. military
records concerning the war in Afghanistan last July, did it commit a
criminal act under U.S. law? That was the question posed by a new report
from the Congressional Research Service. In the end, the CRS report
tentatively concludes that "although unlawful acquisition of information
might be subject to criminal prosecution, the publication of that
information remains protected."
What's more interesting than the report's ultimate conclusion is its probing
treatment of basic questions such as the scope of First Amendment
protections, and the application of U.S. law to foreign jurisdictions.
Could the Espionage Act possibly be used against foreigners acting outside
the United States? Remarkably, the CRS report noted that it could. "The
only court that appears to have addressed the question" ruled in 1985 that a
citizen of East Germany, Dr. Alfred Zehe, could be prosecuted under the
Espionage Act and he was in fact convicted.
On the other hand, could it be that the First Amendment provides protection
to foreign publishers? There doesn't seem to be a crisp yes or no answer to
this question. But the CRS report, written by national security law
specialist Jennifer K. Elsea, turned up a 1964 district court decision which
suggested that foreign publishers do enjoy First Amendment rights, if only
because American readers have a right to the information that they publish.
"The essence of the First Amendment right to freedom of the press is not so
much the right to print as it is the right to read," that court ruled.
Therefore, "the rights of readers are not to be curtailed because of the
geographical origin of printed materials."
But what about the publication of materials that have been illegally
acquired? That seems to be an open question. The CRS report cited a 1989
case (Florida Star v. BJF at footnote 8) where the U.S. Supreme Court said
that the question of "whether, in cases where information has been acquired
*unlawfully* by a newspaper or by a source, government may ever punish not
only the unlawful acquisition, but the ensuing publication as well" is "not
definitively resolved."
The comparatively short (14 page) CRS report, interesting as it is, is
necessarily incomplete.
So, for example, it does not grapple in any detail with the legacy of the
so-called AIPAC case. Although that case was ultimately dismissed in 2009,
the court there upheld the constitutionality of the Espionage Act even when
applied to private citizens who do not hold security clearances but who
received and transmitted classified defense information without
authorization.
Thus, Judge T.S. Ellis III ruled in August 2006: "Although the question
whether the government's interest in preserving its national defense secrets
is sufficient to trump the First Amendment rights of those not in a position
of trust with the government is a more difficult question, and although the
authority addressing this issue is sparse, both common sense and the
relevant precedent point persuasively to the conclusion that the government
can punish those outside of the government for the unauthorized receipt and
deliberate retransmission of information relating to the national defense."
The CRS report also does not explicitly address 18 U.S.C. 793(g), which is
the section of the Espionage Act that pertains to conspiracy. Under this
provision, the criminal offense would not be publication of the restricted
records, but collusion with a source to violate the terms of the Espionage
Act. If Wikileaks has violated U.S. law -- which remains uncertain -- then
its liability would likely be centered here. (The possible relevance of
793g to the Wikileaks case was noted by the pseudonymous Equ Privat in the
blog Finem Respice on August 1, and in private correspondence.)
A copy of the CRS report was obtained by Secrecy News. See "Criminal
Prohibitions on the Publication of Classified Defense Information,"
Congressional Research Service, September 10, 2010:
http://www.fas.org/sgp/crs/secrecy/R41404.pdf
DNI DIRECTIVE ON UNAUTHORIZED DISCLOSURES (2007) RELEASED
The Office of the Director of National Intelligence last week released
Intelligence Community Directive 701, entitled "Security Policy Directive
for Unauthorized Disclosures of Classified Information," dated March 14,
2007:
http://www.fas.org/irp/dni/icd/icd-701.pdf
The directive sets forth procedures and requirements for identifying and
reporting suspected unauthorized disclosures of classified information that
are likely to cause damage to national security interests. These may
include unauthorized disclosures to the media concerning U.S. intelligence
activities, the loss or compromise of classified information storage media
or equipment, the discovery of clandestine surveillance devices, or the
compromise of the intelligence operations of foreign partners. All such
disclosures are to be reported to the DNI via the Special Security Center
(SSC), a component of the ODNI.
The 2007 directive, signed by then-DNI J. Michael McConnell, seems measured
and matter of fact by comparison with the 2002 directive that it replaced,
which was issued by then-DCI George J. Tenet. The Tenet directive had a lot
more adjectives ("strong", "aggressive") connoting forceful opposition to
leaks, as well as a bit of chest-thumping (leaks "shall not be tolerated or
condoned"). For whatever reason, most of that colorful language was removed
in the 2007 directive. A copy of the 2002 Tenet DCI Directive 6/8, which
was originally obtained by Wikileaks in 2008, is here:
http://www.fas.org/irp/offdocs/dcid6-8.pdf
FOIA, TRADE SECRETS, AND MORE FROM CRS
Some new reports from the Congressional Research Service that have not been
made readily available to the public include the following.
"The Freedom of Information Act and Nondisclosure Provisions in Other
Federal Laws," September 13, 2010:
http://www.fas.org/sgp/crs/secrecy/R41406.pdf
"The Role of Trade Secrets in Innovation Policy," August 31, 2010:
http://www.fas.org/sgp/crs/secrecy/R41391.pdf
"Regulating Coal Combustion Waste Disposal: Issues for Congress," September
21, 2010:
http://www.fas.org/sgp/crs/misc/R41341.pdf
"The SPEECH Act: The Federal Response to 'Libel Tourism'," September 16:
http://www.fas.org/sgp/crs/misc/R41417.pdf
"The Bush Tax Cuts and the Economy," September 3, 2010:
http://www.fas.org/sgp/crs/misc/R41393.pdf
VARIOUS ITEMS
The possible near-term declassification of historical intelligence satellite
programs was examined by Dwayne Day in "A Paler Shade of Black," The Space
Review, September 20. The author also noted the pending Fundamental
Classification Guidance Review that is supposed to purge obsolete
classification requirements from the system. See:
http://www.thespacereview.com/article/1699/1
An initiative led by Public Citizen to gain release of grand jury testimony
presented in 1975 by former President Richard Nixon was discussed by John W.
Dean in "Releasing Nixon's Grand Jury Testimony: It Could Change History,"
FindLaw, September 17:
http://writ.news.findlaw.com/dean/20100917.html
A new Army Field Manual addresses "Civil Support Operations," referring to
domestic military operations in support of civilian authorities within the
United States. See Field Manual 3-28, August 2010:
http://www.fas.org/irp/doddir/army/fm3-28.pdf
The Department of Defense issued new guidance on "Use of Animals in DoD
Programs," DoD Instruction 3216.01, September 13:
http://www.fas.org/irp/doddir/dod/i3216_01.pdf
In a September 15 report to the House on legislative actions to reduce
waste, fraud and abuse, House Intelligence Committee chairman Silvestre
Reyes cited House support for increasing the role of the Government
Accountability Office in intelligence oversight, a measure opposed by the
Obama Administration:
http://www.fas.org/irp/congress/2010_cr/hpsci-091510.html
The Pentagon decided to purchase and destroy thousands of copies of Anthony
Shaffer's book Operation Dark Heart at a reported cost of nearly $50,000,
while a censored version of the text is released in its place. But since
numerous copies of the original version are already in the public domain,
this move seems futile and counterproductive.
http://edition.cnn.com/2010/US/09/25/books.destroyed/
_______________________________________________
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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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@xxxxxxx
voice: (202) 454-4691
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