Espionage Act and Whistleblowers

Sunday, March 05, 2006
Today's Washington Post reports on efforts to limit leaks of classified information at the CIA and NSA, including FBI investigation and polygraphs.

The Espionage Act is found here and here.

For those concerned about wrongful governmental behavior, please note that there is an alternative to criminal leaking: The Intelligence Community Whistleblower Protection Act of 1998 (scroll down almost to the end to find sections 701 and 702).

8 comments:

Rick Ballard said...

Brylun,

Wrt the Times/NSA I parse the statute this way:

Original:
793(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;

Parsed:
793(e) Whoever having unauthorized possession of or control over any information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates or cause(s) to be communicated, the same to any person not entitled to receive it

Is that a correct understanding of the statute and if so, doesn't the Times meeting with the President put them at significant risk wrt the "has reason to believe"?

The statute is so broad that prosecutorial discretion is all that stands between Keller and Pinch becoming roommates. Now, in my best fantasy, the charges would be levied in Federal Court in Dallas, Texas but I'll bet there is some silly rule concerning venue shopping that would prevent that.

chuck said...

...I'll bet there is some silly rule concerning venue shopping that would prevent that.

Maybe they could argue that ordinary American citizens don't constitute a jury of peers. Lord knows they seem to think themselves something special.

Rick Ballard said...

Macsmind has his money on 798.

Chuck,

It's not the jury pool it's the judges.There are a couple in the DC judge pool that would give cause for concern should they draw the case. I don't know if it's a draw or an assignment in DC. If assignment then I'm not terribly concerned. Hang on Judge Lamberth.

terrye said...

Can you imagine the outrage if the editor of the NYT or WaPo was charged with a crime like this?

Can you imagine the press coverage??

It would be like the Salem Witch Trials.

Specter said...

Over at JustOneMinute they have been talking about the liability the NYT could be in for if another attack occurs and the it is figured out that the group had been under surveillance but got lost after the leaks. cf wants to take out an ad....

brylun said...

Rick,

18 USC 798 is good too.

(From a technical standpoint that has nothing to do with any charges brought under it, I don't think it was part of the Espionage Act because I don't think they contemplated ciphers in 1917.)

Also, with respect to the New York Times, Washington Post, etc., see United States v. Morison, a 1985 federal district court case holding that leaks to the press (in this case Jane's Defense Weekly) of classified information by government officials are prosecutable under 18 USC 793(d). The court specifically found that there in no need under this law to show any "evil purpose."

And thanks for the link to Macsmind, a new one for me.

brylun said...

Specter's reference to JustOneMinute is here.

Also, on Rick's point regarding concern about certain DC judges, see here, here, here, here and here.

Rick Ballard said...

Brylun,

Here are all the biographies of the group now sitting.

Read'em and weep folks - although there is an off chance that some of Clinton's appointees might be apolitical. Robert's picture by itself brings to mind: "Judges, Dick, dammit, don't waste a shot on an attorney."

Long life and good health, Judge Lamberth.