So in her new book The Asylum, Leah McGrath Goodman interviews huge numbers of people who worked at the New York Mercantile Exchange, or Nymex. They let slip all sorts of interesting stories, including this story about the Persian Gulf War of 1991.
By her account, the chariman of the exchange, Zoltan Guttman, had an ongoing communication link with the government during that time frame. Some kind of notice was given to him 7 months before the war. He also received information about, for example, a tanker being blown up. In his quote, Guttman says that this information was both "confidential" and "useful".
This might look pretty ordinary, unless you look at the modern 2010-era "leak" cases that the Department of Justice has brought against various government employees for giving information to the media. Cases like US v Thomas Drake, US v Stephen Kim, US v Jeffrey Sterling, US v Shamai Leibowitz, and even US v Bradley Manning. These people all allegedly gave out government information to people not entitled to receive it. In the legal complaints filed against them, the government exhaustively describes how they allegedly "leaked" information that was considered "classified".
If Guttman is right about the phrase "confidential", then that would place the information that the Department of Energy gave him under the category of "classified" too. In order to be given classified information, one typically has to go through a "security clearance" process, in which the government looks into your background and your activities and determines, in theory, whether you are trustworthy. Did Zoltan Guttman have a security clearance?
The interesting bit is that Guttman uses the phrase 'us'. Us, as in various people at Nymex other than Guttman. Presumably, for the information to be 'useful', as Guttman claims, he would have had to share it with other people at the exchange. One has to wonder, who exactly were those other people?
Goodman's book describes, only a few pages later, the fact that Nymex was apparently a drug market, with traders trafficking in cocaine and other drugs right in the building, right out of their little cubbyholes. Traders also describe rampant alcohlism, prostitution, and other high-risk activities practiced by the inhabitants of the exchange. Were those people also receiving this 'confidential' information? Did people selling cocaine out of their cubbyhole have security clearances?
When you take this situation and place it along side the modern government 'leak' cases, it is a bit odd. Some might say that the Nymex 'leaks' are irrelevant because they happened 20+ years ago. However, in the Thomas Drake case, the prosecution had no problem dragging up cases from 20+ years ago to use as precedent in trying to convict him. What was his alleged crime? Talking with a reporter about a government boondoggle. What about Stephen Kim's case? He is charged with having a single telephone conversation with a reporter about a source inside North Korea saying there would be a nuclear test. Kim had also been ordered by his bosses to give more information to the press. What is the difference between passing information about the Gulf War to a trading pit full of cokeheads, and passing semi-obvious information to a reporter while doing what your boss told you to do?
There is the Bradley Manning case. His charge sheet is filled up with counts against him for giving out information regarding, for example, the July 2007 Baghdad Airstrike, which was allegedly edited by Wikileaks into the Collateral Murder video. Of course you can find similar videos of gunship airstrikes in Iraq and Afghanistan all over the internet and youtube, but the government charged him anyway. Another count against him is for giving out the Reykjavik 13 cable, which is an incredibly boring state department transmission about the Icelandic bank fraud and their parliaments reaction to it.
What is the difference between the pieces of information given out by Drake, Kim, Manning, and others, and the information that the Department of Energy gave to Nymex, a place that it's own employees called "The Asylum"?
There is also the problem of the phrase "confidential". Let's assume, for the sake of argument, that Guttman of Nymex was in error in claiming the information he received from DoE was "confidential", and therefore the information was not really 'classified'. Perhaps it was just 'sensitive but unclassified'. Does this affect my argument?
No. The Espionage Act does not even use the phrase 'classified' (except the almost-never-used SIGINT portion, paragraph 798, which only deals with cryptographic keys &c). Instead, the Espionage Act uses the phrase "Information related to the National Defense", which is a much narrower category of information, but still somewhat vague and broad and open to interpretation.
So, regarding the information about the exploded oil tanker during the Gulf War - was that 'Information related to the National Defense"? Could the DOE employees who gave Guttman this information have been prosecuted under the Espionage Act? If you take the logic of the modern 'leak' cases, then yes. Manning is under Espionage Act charges for alot of the information he gave out, including the Collateral Murder helicopter gunship video. Drake was under Espionage Act charges for merely having in his possession an UNCLASSIFIED document about the great meetings NSA was having. Kim, for a single telephone conversation about information that his defense attorneys have pointed out is far less sensitive that information in Bob Woodward's book Obama's War.
Is Goodman's book not another piece of evidence for the theory that the government itself has always been the biggest leaker of information, including classified information and "national defense" information, and that it does it for various political purposes as an ordinary part of it's activity? Isn't the DOE-Nymex situation another example to place alongside officially-originated leaks of secret information by everyone from Obama to Eisenhower?
References
United States Army vs Bradley Manning, Hague Justice Portal, Hague Academic Coalition, 2011
The Secret Sharer, Jane Mayer, New Yorker, 2011
stephenkim.org, Stephen Kim legal defense trust, 2011
Hollywood Raids Pentagon Files, Tara McKelvey, Daily Beast, Aug 13, 2011
Resentencing hearing of Larry Franklin, 2009, Judge T.S. Ellis III. US District Court, Eastern District of Virginia.
The Espionage Statutes and Publication of Defense Information by Harold Edgar and Benno C. Schmidt, Columbia Law Review, May 1973, from the
Federation of American Scientists website
Criminal Prohibitions on the Publication of Classified Defense Information Jennifer K. Elsea, Congressional Research Service, January 10, 2011 from the
Federation of American Scientists website
leahmcgrathgoodman.com
Non-References
Classified information in the Untied States, English Wikipedia
