AIPAC Case Decided: Opinion Opens the Door to Prosecution of the NYT and LAT for the Swift Disclosures
This is huge. Jonathan Adler reports:
The federal government may prosecute private citizens who illegally receive and retransmit classified information, held federal district court Judge T.S. Ellis III yesterday in United States v. Rosen. Judge Ellis denied a motion to dismiss filed by Steven Rosen and Keith Weissman, two former employees of the American Israel Public Affairs Committee (AIPAC), who are being prosecuted under the Espionage Act for obtaining classified information and communicating it to third parties, including members of the media. According to Judge Ellis:
both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.
The significance is obvious:
Under Judge Ellis’ interpretation, it also seems the federal government could prosecute reporters at the Washington Post and New York Times for their reports on secret prisons, NSA surveillance, and other classified counter-terror activities.
Don’t forget the Los Angeles Times!
In particular, newspapers might be prosecuted for disclosing the Swift counterterror operation, where the First Amendment argument is weak (because the public interest in disclosure was low, due to the program’s legality and strong safeguards) and the government’s interest in maintaining secrecy was high (due to the program’s effectiveness).
The extended entry contains a fuller discussion of the judge’s conclusions regarding the applicable elements of the relevant statute.
The statute requires that the disclosure of classified information be accomplished “willfully” and with “reason to believe it could be used to the injury of the United States or to the advantage of any
foreign nation.”
The willfulness requirement is not terribly burdensome for the government to prove, but the additional “scienter” requirement may be.
Let’s start with the “willfulness” element:
[T]he government in this case must prove beyond a reasonable doubt that the defendants knew the information was NDI [information relating to the national defense], i.e., that the information was closely held by the United States and that disclosure of this information might potentially harm the United States, and that the persons to whom the defendants communicated the information were not entitled under the classification regulations to receive the information. Further the government must prove beyond a reasonable doubt that the defendants communicated the information they had received from their government sources with “a bad purpose either to disobey or to disregard the law.” Morison, 844 at 1071.
This might make it sound like good motivations are sufficient to defeat a finding of willfullness. Not so:
It follows, therefore, that if the defendants, or either of them, were truly unaware that the information they are alleged to have received and disclosed was classified, or if they were truly ignorant of the classification scheme governing who is entitled to receive the information, they cannot be held to have violated the statute.
. . . .
[T]he statute’s “willfulness” requirement obligates the government to prove that the defendants knew that disclosing the NDI could threaten the nation’s security, and that it was illegal, but it leaves open the possibility that defendants could be convicted for these acts despite some salutary motive. For example, if a person transmitted classified documents relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for “willfully” committing the prohibited acts even if he viewed the disclosure as an act of patriotism.
(Emphasis added.)
But there is an additional, stricter requirement beyond willfullness:
By contrast, the “reason to believe” scienter requirement that accompanies disclosures of information, requires the government to demonstrate the likelihood of defendant’s bad faith purpose to either harm the United States or to aid a foreign government. In this sense, requiring the government to prove that “the possessor has reason to believe [the information relating to the national defense] could be used to the injury of the United States or to the advantage of any foreign nation” is not duplicative of the requirement that the government prove the defendant willfully disclose information that is potentially damaging to the United States because the latter concerns only the quality of the information, whereas the former relates to the intended (or recklessly disregarded) effect of the disclosure.
This still does not seem impossible to prove, when the information in question is obviously critical.
I don’t know if I agree with every aspect of the judge’s decision, including the parts quoted above. But I think that, if I were the editors of the New York Times and Los Angeles Times, I’d be nervous.
Kesler: Espionage Act Upheld: NYT’s Screwed…
… OK, now that that’s settled, fetch a rope. Hell, fetch several of them …….
Old War Dogs (72c8fd) — 8/11/2006 @ 1:30 amGood News From The Law-talkin’ Guy…
Patterico tells us about a judicial decision that suggests if, oh, say, the New York Times gets dragged into court over its deliberate revelations of classified info, well, things won’t go well for them. I’d hate to see that happen,……
JunkYardBlog (621918) — 8/11/2006 @ 4:16 am[…] Patterico makes it clear in case you missed it. […]
FullosseousFlap’s Dental Blog » Global War on Terror Watch: British Identify 19 suspects in Heathrow Airplane Terrorist PLot (baa0b4) — 8/11/2006 @ 5:13 am[…] Patterico makes it clear in case you missed it: This is huge.……In particular, newspapers might be prosecuted for disclosing the Swift counterterror operation, where the First Amendment argument is weak (because the public interest in disclosure was low, due to the program’s legality and strong safeguards) and the government’s interest in maintaining secrecy was high (due to the program’s effectiveness). […]
Amber » Blog Archive » New Government Ruling Opens Door for Prosecution of Leakers (4d2e67) — 8/11/2006 @ 5:14 amThe administration sabotaged the case by, in the end, filling in the newspapers on details of the operation and possibly even declassifying some of the information. I cannot see any jury focusing solely on the initial steps — illegally obtaining the information from the leakers — and not looking at the entire process leading to publication. Reasonable doubt.
nk (5a2f98) — 8/11/2006 @ 5:35 amYet Another Roundup…
How can anyone get bored with all the Middle East news in one place?My theory that Israeli indecision is actually psy-ops? I am doubting myself after reading this [URL=http://rightwingnuthouse.com/archives/2006 ……
Chris At Home (95d7b7) — 8/11/2006 @ 5:40 amGiven the above ruling, ceteris paribus, I have just three words for our charming, self-aggrandizing friends at the NYT and LAT:
Assume.the.position.
Mark Jaeger (320247) — 8/11/2006 @ 6:51 amLooking forward to NYT, WAPO and LAT editors making the perp walk to jail.
bancroller (40af55) — 8/11/2006 @ 7:24 am[…] Patterico starts his post with “This is huge“, and I concur. It has to do with the AIPAC case decided by a federal district court judge in the United States vs. Rosen decision. From the post: Jonathan Adler reports: […]
Lump on a Blog » Blog Archive » The AIPAC Case Decision and the Hopeful Prosectution of the New York Times (6c4d5f) — 8/11/2006 @ 7:40 am[…] As Patterico points out, this opens the door to prosecuting the papers that exposed the SWIFT story. My question: Why aren’t we going after the actual leakers, who actually committed the crime? I think the decision to publish by the NYT and the LAT was wrong, unpatriotic and motivated by advanced-stage BDS syndrome. […]
I don’t like the sound of this at politburo diktat 2.0 (4aa448) — 8/11/2006 @ 8:06 amAll I can say is get the grand jury together now. Go get em!
Charlie (72b728) — 8/11/2006 @ 8:42 amIt appears that “frog-marching” may be applicable in the instant case! Now that would be a photo-op!
vet66 (d8da01) — 8/11/2006 @ 8:51 amAs a matter of public record, publishers and senior editors of our malfeasant print media were called to Washington for the explicit purpose of hearing that, first, certain counter-terrorism/national defense information was highly classified; and second, that breaching this wall of secrecy would not only handicap antiterrorism efforts but directly endanger military field forces in time of war.
For this, Sulzberger, Keller and their ilk cared nothing. Their subversive treachery has long since passed the point where any further instance should be tolerated for an instant. As for their record of contempt for law, disdain for national security, egregiously phony claims of special privilege– enough is enough. Do not grant them good intentions. They are not only extreme partisan hacks but anti-American in the most fundamental sense– denying responsibility, renouncing every principle of civic accountablity, accusing national enforcement agencies of bias against them personally, as if long-standing patterns of aid-and-comfort to United States’ enemies from Stalin to Castro, Ho Chi Minh, Saddam Hussein and (lord help us) even Pol Pot and Kim Jong-il, did not definitively establish perjury amounting to treason of the basest sort.
How long before some Chief Executive musters guts sufficient to stamp out these vipers’ nests coiled and striking daily at every aspect of our citizens’ well-being?
John Blake (152cc3) — 8/11/2006 @ 9:03 am[…] Patterico thinks this case is huge. […]
FullosseousFlap’s Dental Blog » Global War on Terror Watch: Recipients of “LEAKS” May be Prosecuted Under the Espionage Act (baa0b4) — 8/11/2006 @ 9:38 amLet’s Play ‘Connect The Dots.’…
Lunch came early today, and I was perusing the blogs when I came across this entry by Michelle Malkin. In this post she produces the list of names that we posted late last night, but she also touches on the court decision revolving around whether or…
Anonymous (b5f39f) — 8/11/2006 @ 1:14 pmPaterico, in an earlier post on this topic I commented as follows:
“Patterico, the statute you cited requires violations be willful. So if the reporters believed what they did was legal, because the stories were cleared by the papers attorneys and because prosecutions would be unprecedented, they are off the hook no?”
And you responded as follows:
[No. That argument is based on a misunderstanding of the word willful as used in criminal statutes. That word does not require an intent to violate the law. It means only that the act was not an accident. Patterico]
Considering this statement from the opinion as quoted in your post,
“[T]he statutes willfulness requirement obligates the government to prove that the defendants knew that disclosing the NDI could threaten the nations security, and that it was illegal …”,
do you stand by your response?
[Yes. I am confident that the willfulness requirement has nothing to do with whether prosecutions would be unprecedented. I am almost equally confident that a defendant would not escape the reach of the statute simply by claiming that disclosures were cleared by lawyers. I haven’t studied the law on this specific statute, as I’m sure I said before. But from what I’ve read, the court appears to be saying that the defendant must (at minimum) 1) be aware that the disclosure concerned classified information; and 2) have disclosed such information to someone whom the defendant knew was unauthorized to receive classified information. In addition, the scienter element requires, at a minimum, that the defendant recklessly disregarded the potential harm to the country. I believe these elements can potentially be shown as to the Swift disclosures, regardless of allegedly “good” motives or “clearances” by lawyers. That is not to say that prosecution would be wise, only legally possible. — P]
James B. Shearer (fc887e) — 8/11/2006 @ 9:27 pm“[T]he statutes willfulness requirement obligates the government to prove that the defendants knew that disclosing the NDI could threaten the nations security, and that it was illegal …”,
Not too complicated as 18 U.S.C. § 798, says:
The Ace (8d7f7b) — 8/12/2006 @ 4:45 pmMy first amendment trumps your United States Code. Freedom of the press, beyotch.
[It’s my First Amendment too, “beyotch,” and I don’t think it applies here. — P]
John Wesley Hardin (b2279a) — 8/12/2006 @ 7:04 pmMy first amendment trumps your United States Code. Freedom of the press, beyotch.
Are you suggesting the Espionage Act is unconstitutional?
Funny, the US Supreme Court doesn’t seem to agree…
The Ace (8d7f7b) — 8/12/2006 @ 7:13 pmYour comment indicating you doubt the wisdom of prosecuting the papers is interesting. Maybe you could elaborate on that in a post with more detail about this issue.
This is very important, and probably there are others, like myself, who have little legal knowledge and would appreciate understanding better why this is allowed to go on unchecked.
My perception is probably simplistic, but if part of the function of government is to protect citizens, and leakers and the news organizations knowingly damage the government’s efforts to protect us, haven’t we the public been injured by unauthorized usurpation of governmental prerogatives?
I can see reasons that the timing might be poor. I see other reasons the timing might be great: terrorists will probably succeed eventually, and we could easily find ourselves in a more serious military conflict soon, resulting from that or related issues.
At some point, the issue of leakers and the cavalier attitude of the press toward secrets needs clarification, for all our sakes. It might be better to face the uproar now than wait til they can hurt us even more.
Thanks.
jodetoad (a40031) — 8/16/2006 @ 2:07 am