junkyards

"War zones are junkyards for broken souls"

-Zachary Scott-Singley, "This Space is Iraq, This Space is my Memories"

More proof that Congress is all for the leaking of classified information being leaked

Consider the story of the "Espionage Statutes Modernization Act of 2010" (S. 4051 [111th]) by Senator Benjamin Cardin, of Maryland (coincidentally, the home of the NSA):

Govtrack.us, SB 4051 2010

This bill would have radically altered the Espionage Act of 1917, overturning the "national defense" phrase that has can trace it's origins back to the Defense Secrets Act of 1911, when this sort of thing used to be under Title 50 (War) instead of Title 18 (Crime).

It also would have overturned decade after decade of Congress' reluctance and refusal to criminalize the communication of all "classified information". There is only a certain type of classified information that it is actually illegal to communicate, and then only in certain circumstances. Just because something is classified doesn't make it illegal. Almost all of Espionage law refers to "national defense" information, not "classified information", and that is the way things have remained for the past 100 years.

However, Cardin's bill would have gone through vast swaths of the Espionage Act and replaced the phrase 'national defense' with 'national security'. It would have replaced 'document, sketch, map' with the phrase 'classified information'.

It would have, finally, turned the laws created in 1911 for the purposes of warfare against enemy nations, back around on the American people; completing the process begun during the Red Scares so that the attitude of the government towards foreign enemies would now be turned inward, towards anyone who dared to discuss the nature of Muhamar Ghadafi's Rubenesque Nurses. If one goes by the rules the government is using in the Thomas Drake espioange case, where they have argued that he 'should have known' that a document marked UNCLASSIFIED/FOUO was actually classified, things get weirder. In that case, if Cardin's bill passed, then you could be in prison for, for example, reading this manual about how to analyze a pizza business using statistics, or the last pages of this document, which contains a menu for a veterans day event ("cup cakes, muffins, soda"). Both of these 'national security' documents are marked Unclassified/FOUO.

Let's trace the history of Espionage law. Consider, briefly, the portion of the US Code that Espionage Law falls under, the phrase used to identify the sort of information that is made illegal, and finally, what the relevant government department would be.

1911: Title 50: War. Phrase: "National Defense". Department: "War Department"
1917: Title 50: War. Phrase: "National Defense". Department: "War Department"
1950: Title 18: Crime. Phrase: "National Defense". Department: "Defense Department"
2010: Title 18: Crime. Phrase: "National Security". Department: "Homeland Security"

Does the fundamental nature of the law change through these iterations? No. It still, basically, makes it illegal to gather or deliver certain types of government secrets. The newer the bill, the more vast the sweep of information considered 'secret'. But most of the rest of the grammar and langauge remains the same. What has really changed is the target. In the beginning, it's intended target was spies actively trying to destroy the US military. In the end, it's intened target is the American people themselves. No longer is the gaze of the government cast outward, now it turns inward, and it's own people are now seen as the enemy.

As we can see from the link at govtrack, though, this bill died in Committee. This means many of the other Senators on the Judiciary Committee thought it was a lot of hogwash. We can erase that '2010' part off of our little timeline.

For now.

Disclaimer: I am not a lawyer and I don't know anything about the law. By reading or linking or copying this you agree that I am not liable for any use that anyone makes of this article or the information in it. If you think the above article is wrong, please post a comment below.

References

Espionage Statutes Modernization Act of 2010 (dead in committee), Senator Ben Cardin, SB 4051, 2010
Harold Edgar & Benno C. Schmidt, Jr. (1973). "The Espionage Statutes and Publication of Defense Information". Columbia Law Review
Criminal Prohibitions on the Publication of Classified Defense Information Jennifer K. Elsea, CRS, Jan 2011

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Update:

Let's not even go into how many failed amendments there have been to the law. The mind boggles. Obviously a large number of congressmen are against futzing around with Espionage law.

Thomas Drake awarded the Ridenhour Prize for Truth Telling

Update!

Check out Mr. Drake's amazing speech: Please click here

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So today Thomas Drake, a former IT man of the NSA, was awarded the Ridenhour Prize for Truth Telling. To quote:

For "risking his career and freedom to blow the whistle on mismanagement and illegalities"
--Ridenhour Prizes, reported by AP / John Patti / WBAI

Here is the thing. Most of the media reports and blogs, even the ones supporting Drake, IMHO might be using the wrong words to describe his case. Jesselyn Radack, of the Government Accountability Project, (and others) have reminded the media that Drake was never charged with 'leaking classified information'. These points have apparently sunk into many writers, as they have stopped using the phrase "leaking classified material", and started saying things like "mishandling" or "withholding classified documents". The best language was perhaps crafted today at the GAP's website, where Dylan Blaylock wrote that "Drake is being prosecuted for retaining, not leaking, classified information in conjunction with a series of news articles"

But what if it goes further than that. What if we should not only stop using the word 'leaking', but also stop using the word 'classified' as well?

Mr. Drake is charged under 18 USC 793(e). 18 USC 793(e) has nothing, whatsoever, in any way, shape, or form, to say about the word 'classified' or 'classification'. Nada. Zippo. Zilch. Zero.

It refers only to information 'related to the national defense'. That's the key phrase. 'national defense'. Not 'classified'.

Why, then, does the government pepper it's indictment with the word?

Good question.

Why, then, didn't the government actually charge Drake with a law that actually mentions the word 'classified', like 18 USC 798?

Another good question! The mind especially boggles at the failure to use 18 USC 798, since the law was specifically designed to prosecute people who communicate 'classified information' about 'communication intelligence activities'. It is hard to get more specific; the law is almost tailor made for a case like Drake's; that is if you believe the government's version of events. And yet, they didn't use 798. Why?

Let's call up the prosecutors and ask them! Oh.. err maybe not.

Maybe we can just speculate on this blog though.

The main five counts against Mr Drake come from five documents; their names are "What a Success", "the Regular Meetings", "Volume is our Friend", "Trial and Testing", and "Collections Sites".

Now, the pre-trial motions are full of discussions about which of these are classified and which are not, and at what level they are classified. There is a big debate about 'Regular Meetings' because it has 'Unclassified' stamped in big bold letters across the top of it.

None of this matters. What matters is whether any of these documents contain information relating to the 'national defense'. So why all the hubbub about whether something is classified? Because of the jury.

The jury is supposed to decide what counts as 'national defense' information and what doesn't. It is not up to the government, prosecutor, the defense, the judge, the president, Congress, or anyone else. It is up to 12 of Drake's peers in a room.

Now, this is where 'classified' comes in. If something is marked Unclassified in big bold letters, and posted to an internal computer network where tons of people can see it, like "Regular Meetings" was, then it is pretty hard for the jury to believe the prosecution if it says the document is super-secret information related to the 'national defense'.

The flip side of the argument is that if something is classified 'Top Secret', then maybe the jury will decide that it is, in fact, 'related to the national defense', just because it has 'Top Secret' stamped on it. Then, if the prosecution can just say the words over and over again, 'Classified classified classified', 'top secret top secret top secret', maybe the Jury will get the concepts muddled in their mind.

The problem with this strategy, for the prosecution, is that the executive branch is continually classifying things that don't need to be classified, a process called 'overclassification'. For example, many documents that were declassified decades ago and put in the public domain have been republished and marked "classified" and heavily redacted, a story told on the GWU website by William Burr

Then there are two articles by the Stratfor organization. The first is entitled "I could tell you but I'd have to kill you: the Cult of Classification in Intelligence", pointing out that, for government employees, the process of classification is more about social status, bureaucratic power, and political considersations than about national security. The author writes that "Washington has succeeded in making the vital secrets of the republic indistinguishable from banal drivel." 10 years later, Stratfor would revisit the issue with an anylysis of the Wikileaks documents, pointing out that the vast majority of the documents had no business being classified as 'secret'. Stratfor's Stewart also writes that the "culture of classification" can "contribute to the bureaucratic jealously" that enabled 9/11 to happen. If one studies the work of James Bamford (Shadow Factory), regarding the failure of NSA to share information about the 9/11 hijackers before the attacks, it is a striking argument.

So the Jury might get a hold of the documents that were in Drake's basement, (under the Classified Information Procedures Act, the public won't be allowed to see them, just the jury), and then decide they are completely unrelated to the 'national defense'. The whole 'secret' marking, they might decide, was just another bureaucratic bungle.

It all depends on whether the prosecutor can frighten, intimidate, and cajole the jury into believing that the documents are 'related to the national defense' and that the security of the United States was geniunely threatened. Or whether they might decide, instead, that government abuse of power, restrictions on free speech & press, and retaliation and intimidation against whistleblowers are perhaps a greater threat to national security than a couple of documents about a years-ago abandoned, failed project (Trailblazer) that the NSA doesn't even use.

The jury will hopefully be instructed, and perhaps we should remember this when writing, that 'classification' is not a magic word. It does not confer mystical powers on a document, nor does it make that document an important 'national defense' document, nor does it even automatically make the document illegal. Drake is charged with having "national defense" documents, not classified documents. Some of the documents just happened to be classified. The word "classified" is just an ordinary word, that is used by some people to scare others into forgetting about their rights.

And so, today, Thomas Drake has been awarded the Ridenhour Prize for Truth Telling.

References

Save Tom Drake, facebook
Government Accountability Project, Thomas Drake page

US v. Franklin, Sentence reduction hearing, Judge T.S. Ellis III, 2009
Criminal Prohibitions on the Publication of Classified Defense Information Jennifer K. Elsea, CRS, Jan 2011
The Espionage Statutes and Publication of Defense Information, Edgar & Schmidt, 1973 Columbia Law Review
More Dubious Secrets, William Burr ed., George Washington University, Jul 17 2009
I could tell you but I'd have to kill you , Stratfor, Sep 2000.
WikiLeaks and the Culture of Classification, Scott Stewart, Stratfor, 2010 10 28
Spy Factory: Expert Q&A, James Bamford, 02.09.09 NOVA / PBS
Ex NSA Employee Accused Of Mishandling Classified Information Honored John Patti / AP / WBAL, 2011 4 13
18 USC 793, Cornell Law project
18 USC 798, Cornell Law project
US v. Drake, Case Files Federation of American Scientists.
Ridenhour Prizes Today; Tom Drake, Wendell Potter, Sen. Russ Feingold Honored, Dylan Blaylock April 13, 2011, Govt Accountability Project
Kafka: Gov't Tries Barring Newspaper Articles, Whistleblowing & Over-Classification at Drake Trial Jesselyn Radack, FRI Mar 11, 2011, DailyKos

Disclaimer: I am not a lawyer and I don't know anything about the law. By reading or linking or copying this you agree that I am not liable for any use that anyone makes of this article or the information in it. If you think the above article is wrong, please post a comment below.

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Update 2:

Barry Goldwater, Oliver North, and the hypocrisy of Classified Information

Update 3:

Reading Wen Ho Lee's book, gives a huge amount of insight into classification. The whole system is ridiculous, self contradictory, and bizarre. Lee's case was a gross miscarriage of justice, and based on politics and racism rather than any sort of national security imperative.

Bradley Manning has not been charged with giving classified documents to Wikileaks

It doesn't matter how many times it's repeated in the media: It is simply not true.

Bradley Manning has been charged with a lot of things; 34 separate counts in fact, including Aiding the Enemy under the Uniform Code of Military Justice Article 104, which carries a possible death penalty.

What he has not been charged with, however, is transferring 'classified information' to anyone. Not Wikileaks, not 'the enemy', not a foreign nation, not a reporter, not Julian Assange. Nobody.

How is this possible, you might ask? Let us simply enumerate the charges against Mr Manning.

UCMJ 104, Aiding the Enemy. It mentions 'intelligence', but the word 'classified' is never used.

UCMJ 92, Army regs 25-2 and 380-5 are about computers. The sections that Manning is charged with (4-6k, 4-5a3, 4-5a4) might mention the improper storage of classified information, or putting classified information on a non-secure system. They don't mention anything about giving it to a third party. Nothing.

UCMJ 134: This basically incorporates civilian law from US Code Title 18, namely:

18 USC 793(e): The McCarran Internal Security Act of 1950 amendment of the Espionage Act of 1917

This law says absolutely nothing, zero, zilch, nada, zingo, about the word 'classified'. It only mentions 'national defense' information; language it inherited from the 1911 Defense Secrets Act, which in turn was inspired by the British Official Secrets Act. Nothing about classification, at all.

18 USC 641: Stealing government property. Again, this act, by it's nature, has nothing to do with 'classified information'.

18 USC 1030: This is the Computer Fraud and Abuse Act, aka the "Ooooh Scary Hackers act". It basically takes everything that is already illegal, and then sticks the words "done with a computer" on the end of it, sort of like gun laws. This law might use a lot of flowerly language that seems to imply classification, and it gets really really close. It mentions information that has, by executive order, "require[d] protection against unauthorized disclosure for reasons of national defense or foreign relations". And there have been tons of Executive Orders on classified information. But the law (and the Congress that wrote it) never actually brings itself to actually use the word 'classified' or 'classification'.

What does that leave us with? Nothing. Absolutely nothing.

Bradley Manning has never been charged with giving classified information to Julian Assange, Wikileaks, or anyone else. The indictment might mention the word 'classified' a million times; it is just doing that to scare the public and the courts into thinking it all must be so incredibly important. Surely, some of it is, for example theoretically, there might be information in there the Taliban could use to assassinate people who are working secretly against it. But the vast, vast majority of the 'classified information' he took has nothing to do with that.

The dirty secret of classified information is that the vast majority of it has no business being classified. The other dirty secret is that if it were really illegal to share classified information, most of Washington's top brass would be in prison, including most of the top officials who have ever been interviewed for or written books.

The ultimate proof of this is that when Congress actually did want to outlaw the transmission of a certain type of classified information; namely cryptographic and communications intelligence information, they made a specific law to do so; 18 USC 798. That is the only part of the Espionage Act that mentions the word 'classified'; but it only covers information about cryptography and communications intelligence. There is another law, in Title 50 USC 783, which bans certain passing of classified info but only if the passer is a government employee and the passee is an 'agent of a foreign government'. Again, the secrecy laws are very specific. Only under certain circumstances is "classified" information actually illegal to have or to deliver to someone else.

Why, then, did the Army not use those laws that actually use the words 'classified' and 'communication' to charge Manning? Good question. First, consider 50 USC 783. The problem here is that Julian Assange is not an 'agent of a foreign government'. He is not Australian Intelligence. He is not Mossad. He is not even part of the fashion police. He is just some guy in a trench coat who likes scarves and unsafe sex.

Now consider the other 'classified' law, 18 USC 798. It only punishes you if the classified information you give away is related to cyrptography or to 'communications intelligence activities' of the US. Now, it is actually kind of strange to contemplate that the Army didn't charge Manning with 798. Is the Army trying to tell us that he didn't actually transfer any classified information that's related to 'communication intelligence activities'? In the charges against him, many, many Army databases are listed. Are the Afghan war memos not full of information that reveals how the US collects intelligence? This law, 18 USC 798, is basically tailor made for him, isn't it? Why didn't they use it? The Army used the word 'classified' on almost every line of their charge sheet; why, then, didn't they use one of the only laws that actually has the word 'classified' in it?

According to Stratfor, the stuff he leaked is not really even related to 'communications intelligence'. It is a massive amount of low level stuff. He didn't even have access to the high level stuff; he was on SIPRNet. At least that is Stratfor's argument.

But who really knows? Do they agree with Stratfor? Do they fear that 18 USC 798 is perhaps unconstitutional? Do they want to avoid a challenge in the Supreme Court? Could Manning argue, for example, that the classified video from July 7 2007 (which was the basis of the Collateral Murder video that Wikileaks posted), was improperly classified? Or that there was some other law that protects such disclosures?

Would they realize that, as written, 18 USC 798 theoretically makes criminals out of everyone who has even gone to the wikileaks website and browsed it? That everyone who reads a newspaper that repeats wikileaks information, is, in fact, a felon? Are they afraid that the entire edifice of 18 USC 798 might come collapsing down like a pile of rotten bricks?

We can't, of course, know the Army's mental state, it's "intent". We can't even read who the accuser is on Manning's charge sheets, because the names have been blacked out.

But whatever the Army's reasons, this fact remains: Bradley Manning has never been charged with transferring classified information to Julian Assange or Wikileaks. Why? Because --in general, it is not illegal to have or to deliver classified information--. You might get fired for doing it. You might have your security clearance revoked. You might never be able to get a government job again. They might put you on the no fly list and blacklist you. But you won't go to prison for it under any judge with a clue. To actually be a crime, it has to be a specific type of classified information, in specific circumstances. Otherwise, the information has to be 'national defense' information or any of the other various phrases that Congress has used when it didn't want to use the word 'classified'.

As Edgar and Schmidt point out, when Congress originally drew up 18 USC 798 it specifically described how the act did not criminalize the revelation of all classified information; it just barred giving out certain types of classified information. 50 USC 783 says the classified information has to be sent to a 'foreign agent', among other things. Congress put limits on these laws. Why did it have to do that?

Because Congress runs on leaks. It cannot do it's job without leaks. The executive branch overclassifies everything; the Congress cannot even do it's job unless it has 'back channels' to find out what is actually going on in the massive federal bureaucracy. If you actually did stop the transfer of classified information, the whole government would shut down, every major newspaper and news station would have to shut down their Washington bureau, Bob Woodward and other authors would have to stop writing books, and so forth and so on. It would be chaos ; mass hysteria. That's why it is not going to happen.

Manning is not charged with giving out classified information. He is charged with giving out National Defense information and Intelligence and information "requir[ing] protection against unauthorized disclosure for reasons of national defense or foreign relations", some of which happens to be classified. The fact that it is classified is immaterial to the charges against him. It's like saying he leaked information that was on a CDROM or that it was on a thumb drive - as far as the law is concerned it is technically irrelevant.

The word 'classified' is not magic. It does not erase your rights under Natural Law. It does not even erase your rights under the Actual Laws of the United States, as enacted by Congress. Because, even at the height of the Red Scare, when many of our secrecy laws were updated, the Congress was still wary of an overpowerful Executive branch and mindful of the need to pay attention to the Constitution.

Disclaimer: I am not a lawyer and I don't know anything about the law. By reading or linking or copying this you agree that I am not liable for any use that anyone makes of this article or the information in it. If you think the above article is wrong, please post a comment below.

References

The Espionage Statutes and Publication of Defense Information Harold Edgar & Benno C. Schmidt, Jr., 1973, Columbia Law Review

Criminal Prohibitions on the Publication of Classified Defense Information, Jennifer K. Elsea, CRS, Jan 2011

The United States Army v Bradley Manning, Charge Sheets, The Hague Academic Coalition, 2011

US v. Franklin, reduction in sentence hearing Judge T.S. Ellis III, 2009

What Manning was actually charged with:

UCMJ Article 104
Army Regulation 2-25 Paragraphs 4-6k, 4-5a3, 4-5a4
Army Regulation 308-5
18 USC 793(e)
18 USC 641
18 USC 1030(a) 1&2

Laws that actually use the words 'classified' and 'communicate':

50 USC 783
18 USC 798

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Update:

Another interesting thing he has not been charged with:

UCMJ 106 - Espionage

Bradley Manning has not been charged under the Military form of Espionage. Only the civilian form; and that only covers 'national defense' information. It makes you kind of go 'hmmmm'. As seriously as the Army is taking his case, they seem to have left quite a lot of the book "unthrown".

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Update 2:

I have created another ranty blog, this one details how classified information leaking was a daily spectator sport in the 1980s whitehouse. Oliver North has some particularly interesting things to say about it. Of course he probably wants to shut down all leaks, but his commentary is essentially proving that leaking classified information is 1. widespread 2. unpunished 3. considered normal

Blast from the past: Barry Goldwater chews out the CIA for Whitehouse leaks, 1983

How to find old copies of the Congressional Record on archive.org

Update 2012 April Things have changed since I originally wrote this. archive.org now has many, many more years of the record online, (someone even pointed me to one from 1911) and their search has changed as well. As commenter 'Anonymous' points out below, you may have to browse archive.org in order to find the congress you are looking for - some of the details of these instructions don't work exactly as advertised anymore. You will have to play with it. I'm not going to upate these instructions right now, too tired.. but hopefully they can provide a 'starting point' for all you searchers out there to get your diggin' on! Good luck!
Yes, Thomas, GPO, and FDsys have new copies of the Congressional Record, easily searchable and all that.

What if you need one from the old days? Say, 1961? And all you have is the page number, like pg 10688?

It is possible.

Step 1: Go to www.archive.org

Step 2: Pray that they are actually up and running (hint, wait until 2AM)

Step 3: Copy/paste the following magic code into the search box. Not the wayback box, the search box:

creator:"United States. Congress" title:"Congressional Record"

Step 4: You will now be presented with a massive list of Congressional Records, arranged by the number of the Congress, and then by Session, and then by 'Parts'. For example, the 1961 Congressional Record, page 10688, is going to be at Archive.org, but it will be found by looking under the 87th Congress, 1st Session, 8th 'part'. How do I know that? Keep reading.

Step 4.5: Forget about the '1947' thing on every page. Ignore it.

Step 5: If you only have the year of Congress, then you need to figure out which congress it was. I.e. 1961 = 87th congress. You can google, or use the calculator below, or use this rough formula: If you got the year, subtract 1787 from it, and divide by two. 1961-1787->174, 174/2->87th. So look for '87' in the archive.org page. If your Congress is too old, they might not have it (sorry).

Year:th:

Step 6: Figure out which Session within that Congress you need. Each Congress had two. You can kid of guess by looking at a few. For example, open up the first volume of Congress 87, Session 2, and click 'Read Online'. The front page says the year '1962' on it. I want 1961. I guess I need Session 1.

Step 6.5: If your computer freezes up when you click 'read online', don't be alarmed. It is not unusual. You can try a different browser, like Google Chrome. Or your computer might need more memory.

Step 7: Figure out which 'Part' you need. Each Session might have a dozen or more 'Parts'. Most of the Congressional Record on the archive.org site are scanned as 'two parts in one'; i.e. one 'file' on their site actually might contain Part 9 and Part 10. You have to kind of guess which "part" to look in to find the page number you are looking for.

Step 7.5: In my case, I'm looking for 10688. I guessed that would be in Part 9, so I opened up the file labeled 'Parts 9-10'. Then i looked at the first page: it was numbered 11167. That is too high. I need page 10688, so I closed the file, and went back to archive.org and clicked on Parts 7-8.

Step 8: Poke around 'till you find the page you need. The archive.org interface to read a book is very unusual on the internet, but you get used to it.

Step 9: If you want to actually link a URL to the page, don't use the 'link' button. It doesn't work. Instead just copy the URL at the top of your browser.

Step 10: End! Fun!

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The REALLY old copies

The Congressional Record was not always called the Congressional Record.

1833-1873

Congressional Globe (1833-1873), at the University of North Texas

1824-1837

Register of Debates in Congress (1824-1837), at the University of North Texas

1789-1824

Annals of Congress (1789-1824), at the awesome University of North Texas

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What the professionals use

What do the pros use? Well, they use a lot of the same stuff you use. Here is a guide from the Congressional Research Service, posted online by the Federation of American Scientists:


Legislative History Research: A Basic Guide - Julia Taylor , CRS
, June 2011.

If you read nothing else about Espionage Law, read these three.

Elsea - 2011

Edgar and Schmidt - 1973

Chafee - 1919

Espionage Law used against Bradley Manning came out of the Red Scare

Bradley Manning has many, many counts against him. The specific charges are listed at the Hague Academic Coalition website: http://www.haguejusticeportal.net/eCache/DEF/12/444.TD1GUg.html

As you can see, a large number of them are for violating 18 USC 793(e).

793(e) was an amendment to the earlier Espionage Law of 1917. It was passed in 1950, as part of the McCarran Internal Security Act, (the Subversive Activites Control Act) during the Second Red Scare.

793(e) has, AFAIK, usually not used in a traditional 'espionage' case, where someone took cash and gave 'national defense' information to an enemy nation. Instead, it has been used to go after people who gave it to the media, or people who allegedly 'retained' it. These include Anthony Russo / Daniel Ellsberg (Pentagon Papers), Samuel Morison, Dr. Wen Ho Lee, the AIPAC case (Larry Franklin, Rosen, and Weissman), Kenneth Wayne Ford, Thomas Drake, and now Bradley Manning.

You can poke around the other blogs on this site to find more posts about the strange applications of 793(e). A strange point is that Bill Casey, who was Ronald Reagan's Director of CIA, violated this law all the time apparently, because he was a scatterbrain. I attempt to describe this here:

"Did Bill Casey, Reagan's head of CIA, violate the Espionage Act?"

Here is my article detailing the counts against Manning, noting that none of them actually involved transferring "classified" information (rather, 'national defense' information and suchlike):

" Bradley Manning has not been charged with disclosing classified information", Apr 2011

Assistant Attorney Generals and School House Rock

Article under construction.


Puddling through the morass of Espionage cases, one stumbles upon Steven Aftergood's excellent writeup of the Leibowitz case. In it can be found an interesting, and strange, view of the law from David Kris, President Obama's Assistant Attorney General for National Security.

Kris is quoted as saying the following:

"The willful disclosure of classified information to those not entitled to receive it is a serious crime"

The problem with this is that it is, just, basically, not true. It's wrong.

There is actually no law that says the words he just said.

He has apparently mangled and mish-mashed two separate laws together. Now, there is one law that bans disclosure of 'information related to the national defense to those not entitled to receive it' (parts of 17 USC 793d/e). And there is another, separate law (18 USC 798), that bans the disclosure of 'classified information' -- but that is only a certain type of classified information, in certain specific circumstances. And that is the law that the defendant broke.

Thats the problem. "willfull disclosure" and "anyone not entitled to receive it" are only in 793. "Classified information" is only in 798. If you mix them together you have just created a new law. That is a no-no. That is what congress is supposed to do, not the executive branch prosecutors.

Now, if you go into other areas of the US Code, like Title 50, you can find laws about revealing classified info to 'agents of a foreign government'. You can even find some slippery language in the Computer Fraud and Abuse Act, 18 USC 1030, that comes very close to saying the word 'classified', but never goes all the way. So, in the end, there is, in fact, no law that bans "diclosing classified information to those not entitled to receive it."

Is this a technicality? Is this splitting whiskers? Is this lawerly nonsense? No, it is actually, in fact, the direct, stated desire of the Congress (and sometimes the President), repeatedly, over the past century, to resist and regard as an attack on Free Speech, any attempt to make a blanket law that criminalizes 'all classified information'. Just because something is classified doesn't make it illegal.

The law that Leibowitz is convicted on, §798, actually came out of the second Red Scare circa 1950. A lot of laws from that era (which brought us the Subversive Activities Control Act / McCarran Internal Security Act) have been repealed. Not 798.

798 is the only part of the Espionage Act that covers 'classified information'. They coudln't have used 50 USC 283 on him, because he leaked to a blogger, not an 'agent of a foreign govenment'. And the Computer Fraud and Abuse Act, well, it's just a damn mess. Try reading it some time. But even though 798 deals with classified information, it doesn't deal with 'all' classified information. It has strict limits on it placed there by Congress, even at the height of the Second Red Scare. Congress was still worried about a too-powerful executive and the separation of powers.

Furthermore, the phrase that Mr Kris mistakenly uses, 'those entitled to receive it', which is from from 793, has never had an actual, definite meaning assigned to it. Ever. The problem was gotten over in the Morison case, from 1985, because he was a government employee who had signed documents indicating he understood the import of his security clearance and agreed not to disclose info. By that logic, they claimed, he should have known that Jane's Defense Weeekly magazine was 'not entitled'. Fair enough. But the idea that his recepients were 'not entitled' came out of his employment agreements, not because the government has ever actually defined what the phrase means.

In fact, President Wilson, in 1917, wanted to be able to define 'entitled to receive it' however he wanted; Congress barred him because of that whole 'Separation of Powers' and 'Checks and Balances' thing we learn about in junior high school with the singing cartoons. So Mr. Kris' misquoting of the law is actually a big deal; he has commingled and conflated two entirely separate laws, and in doing so, he has neglected to pay respect to the fundamental limits that Congress has put on the Executive branch in the Espionage Act.

§798(a), the law used against Leibowitz, limits the information that is considered prohibited. First, §798(a) says that the information has to be regarding 'communication intelligence activities' or certain aspects of cryptographic systems. Second, it says that the information has to be classified. This is the only restriction on 'classified' information in the entire Espionage law, and it is bundled tightly by Congressional rope to the other requirement; it has to be intelligence-related.

Edgar and Schmidt specifically quote the Senate Judiciary Committee from the year the act was passed; they directly describe this limit. The law specifically does not punish anyone for information "passed out without authority or against orders". The information has to be classified and be about certain sorts of intelligence activity. (pg 1068 of their Columbia Law Review article)

IE, you cannot throw someone in jail for 'disclosing classified information'. If you could, most of Washington would be in prison, and Bob Woodward's books would be about 5 pages long.

I would humbly beg the Assistant Attorney General to consider the wise lessons of, not only our founders, but of School House Rock. Specifically, the episode entitled "Three Ring Government". The executive is supposed to enforce the law, not decide what it means. That is a job for the judges and the juries. It is part of our system of checks and balances, our democratic system. When the executive branch tries to decide what the law means, but misquotes it, mixing up two separate laws, one of which the defendent was not even charged with, it does not inspire confidence.

Disclaimer: I am not a lawyer. By reading this you agree that I will not be liable for anyones use or misues of the article or information here. If you think I am wrong, please put a comment below. Thank you.

References

Jail Sentence Imposed in Leak Case Steven Aftergood, Federation of American Scientists, 2010

UNITED STATES OF AMERICA v. SAMUEL LORING MORISON, March 12, 1985

School House Rock, Three Ring Government

US Code, Title 18, 793 & 798 (parts of the Espionage Act)

"The Espionage Statutes and Publication of Defense Information", Harold Edgar & Benno C. Schmidt, 1973 Columbia Law Review