Classified Information—Criminal Prosecution of Journalists

When New York Times reporter Judith Miller was jailed for contempt after refusing to tell the grand jury investigating who disclosed the identity of Valerie Plame, there was considerable concern among journalists that the federal government was prosecuting journalists for protecting sources.^[1] It turns out that that may be the least of their concerns.

According to the New York Times, “the Bush administration is exploring a more radical measure to protect information it says is vital to national security: the criminal prosecution of reporters under the espionage laws.”^[2] The Times concedes that it is “not easy to gauge whether the administration will move beyond [subpoenas issued to reporters to testify about sources] to criminal prosecutions of reporters. In public statements and court papers, administration officials have said the law allows such prosecutions and that they will use their prosecutorial discretion in this area judiciously.”^[3] There is so far no indication that such prosecutions are imminent, and such a move is generally considered inconceivable^[4] because a healthy democracy relies on a press which will report on the government’s secrets.^[5]

These concerns are heightened after the prosecution of Steven J. Rosen and Keith Weissman, who we discussed on April 19. Journalists are concerned about their case because the facts of the case are substantially analogous to a journalistic scenario: the individuals are being charged with receiving and repeating national defense information, and while prosecutors say that lobbyists are different than journalists, “they would not rule out the possibility of also charging journalists under the law.”^[6]

There are two laws that are concerning so many people. The first is the Espionage Act of 1917,^[7] which makes it a crime for a person to receive or obtain or agree or attempt to receive or obtain from any person, or from any source, any

• document
• writing
code book
• signal book
• sketch
• photograph
• photographic negative
• blueprint
• plan
• map
model
• instrument
• appliance, or
• note

of anything connected with the national defense.^[8] The person must receive the information “for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.”^[9] The receiver must also know or have reason to believe that the information “has been or will be obtained, taken, made, or disposed of by any person” contrary to law.^[10] Unpack the statute, and you can plainly see that there are a couple of issues. The purpose element itself is ambiguous. Who gets to decide what injures the United States? And what constitutes an injury? Take the CIA’s black sites, for example. Does disclosing that information injure the United States? It could, because other countries populations may not be pleased to discover that they are hosting secret prisons at which torture is allegedly conducted; if those populations decide to boycott the United States’ products, that could injure the United States. But on the flip side, could the disclosure of that information end up helping the United States by making US citizens concerned that the US is conducting operations that contradict stated US principles? The other aspect of the purpose requirement, the advantage to a foreign nation component, is also troubling. If the information was given to al Qaeda, for example, would that then exempt the person from prosecution because al Qaeda is not a foreign nation? And what constitutes an advantage to a foreign nation? If the information is related to national defense postures and troop levels, for example, and the information is given to an allied country, that information could be considered to be advantageous for that allied country, but it creates the counter-intuitive proposition that there is no real harm to the United States.^[11] Thus, on its face, the Espionage Act seems reasonable, but when its provisions are really examined and taken to their logical extensions, the statute becomes extremely problematic.

The other law causing consternation for journalists is the disclosure of classified information statute.^[12] It states that it is a crime for a person to “knowingly and willfully” communicate, furnish, transmit, or otherwise make available to an unauthorized person, or publish, or use in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information that

• concerns the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
• concerns the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
• concerning the communication intelligence activities of the United States or any foreign government; or
• is obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes.^[13]

Notice that this law seemingly deals with the concerns seen in the Espionage Act about whether information that is beneficial to a foreign allied nation should be criminalized by requiring that the information that is beneficial to a foreign country must also be detrimental to the United States. Nonetheless, the New York Times story about the NSA wiretaps was given to an unauthorized person who then published it, which would technically constitute an illegal disclosure of classified information. It is far from inconceivable that reporters and journalists could be prosecuted under these statutes, which could very well have chilling effects on the press’s ability to shed light on government secrets.

---

[1] See, e.g., Howard Kurtz, The Judith Miller Story: Not Ready Yet, Wash. Post, Oct. 13, 2005.
[2] Adam Liptak, In Leak Cases, New Pressure on Journalists, Apr. 30, 2006.
[3] Id.
[4] Id.
[5] See, e.g., our post on fired CIA officer, Mary McCarthy.
[6] Liptak, supra note 2.
[7] Recodified in 1948 as 18 U.S.C. § 793.
[8] Id. § 793(c).
[9] Id. (incorporating by reference 18 U.S.C. § 793(a)).
[10] Id. § 793(c).
[11] To be sure, however, actual harm is not an element of hardly any crime. For example, there is no “actual harm” component to the bank fraud statute; thus, a person can be convicted of bank fraud (devising a scheme or artifice to defraud a bank) without any harm coming to the bank.
[12] 18 U.S.C. § 798.
[13] Id. § 798(a).