Question About Leaks

[Grimmy]

http://www.tigerhawk.blogspot.com/

Tuesday, January 17, 2006
A Question About Leaks
By Cassandra at 1/17/2006 07:35:00 AM

I have a question about leaks of classified information. In 1972, the Supreme Court (in Branzburg v. Hayes) refused to recognized the concept of journalistic privilege:


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?