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Wikileaks

You Have No Sovereignty Where We Gather – Wikileaks and Freedom, Autonomy and Sovereignty in the Cloud, Balázs Bodó - Budapest University of Technology and Economics; Stanford Law School Center for Internet and Society, March 7, 2011 (761 kB)

US embassy cables: global coverage (guardiannews)
Find all the global coverage of the release of 250,000 leaked US diplomatic cables supplied to media organisations by Wikileaks

US embassy cables: browse the database (guardian.co.uk)
Use our interactive guide to discover what has been revealed in the leak of 250,000 US diplomatic cables. Mouse over the map below to find key stories and a selection of original documents by country, subject or people

State's Secrets (nytimes.com)
A cache of diplomatic cables provides a chronicle of the United States' relations with the world

ACCESSING WIKILEAKS VIOLATES ESPIONAGE ACT, USAF SAYS

Americans who have accessed the WikiLeaks web site may have violated the Espionage Act, under an extreme interpretation of the law advanced by Air Force officials last week.

Many government agencies have instructed their employees not to download classified materials from the WikiLeaks web site onto unclassified computer systems.  The government's position is that although the material is in the public domain, its classification status is unaffected.  Therefore, to preserve the integrity of unclassified systems, the leaked classified information should not be accessed on such systems.  If it is accessed, it should be deleted.

But on February 3, Air Force Materiel Command (AFMC) at Wright-Patterson Air Force Base issued startling new guidance stating that the leaked documents are protected by the Espionage Act and that accessing them under any circumstances is against the law, not simply a violation of government computer security policy. 

"According to AFMC's legal office, Air Force members -- military or civilian -- may not legally access WikiLeaks at home on their personal, non-governmental computers, either. To do so would not only violate the SECAF [Secretary of the Air Force] guidance on this issue,... it would also subject the violator to prosecution for violation of espionage under the Espionage Act," the AFMC legal office said.

Then, in an astounding interpretive leap, the AFMC went on to say that similar prohibitions apply to the relatives of Air Force employees.

"If a family member of an Air Force employee accesses WikiLeaks on a home computer, the family member may be subject to prosecution for espionage under U.S. Code Title 18 Section 793."

This is a breathtaking claim that goes far beyond any previous reading of the espionage statutes.

"That has to be one of the worst policy/legal interpretations I have seen in my entire career," said William J. Bosanko, director of the Information Security Oversight Office, by email.

If taken seriously for a moment, the AFMC guidance raises a host of follow-on questions.  What if a family member accessed WikiLeaks on a computer outside the home?  What if a non-family member accessed WikiLeaks on the home computer?  What if one learns that a neighbor has accessed WikiLeaks in the neighbor's home?  Is the Air Force employee obliged to intervene or to report the violation to authorities?  And how could any of this possibly be constitutional?

Since the AFMC guidance is not based in existing case law or past practice, these questions have no immediate answers.

Last December, a Department of Homeland Security official complained to Secrecy News that government policy on WikiLeaks produced the incongruous result that "my grandmother would be allowed to access the cables but not me."  But if the new Air Force guidance can be believed, this is incorrect because the official's grandmother would be subject to prosecution under the Espionage Act.

In reality, there does not seem to be even a remote possibility that anyone's grandmother would be prosecuted in this way.

Instead, ironically enough, the real significance of the new AFMC guidance could lie in its potential use as evidence for the defense in one of the pending leak prosecutions under the Espionage Act.  Defendants might argue that if the Espionage Act can be seriously construed by Air Force legal professionals to render a sizable fraction of the American public culpable of espionage, then the Act truly is impermissibly broad, vague and unconstitutional.

For a standard view of the general subject see "The Protection of Classified Information: The Legal Framework" (pdf), Congressional Research Service, January 10, 2011.

(source: fas.org)

DOD TAKES FLEXIBLE VIEW ON DELETING WIKILEAKS DOCS

Department of Defense employees who downloaded classified documents from Wikileaks onto unclassified government computer systems may delete them without further "sanitizing" their systems or taking any other remedial measures, the Pentagon said in a policy memo (pdf) last week.

The release of classified State Department cables and other classified documents by Wikileaks has produced special consternation among security officers, who have tended to respond "by the book" to this unprecedented breach of security procedures.  But "the book," which is the product of an earlier era, is quickly becoming obsolete.  And in the worst case, some officials say, the government's unimaginative response to Wikileaks could do more damage than the original disclosures.

But now some tentative signs of flexibility can be detected from Pentagon policy makers.

Under the new guidance, DoD employees and contractors who have downloaded classified documents from the Wikileaks website onto an unclassified government computer or network -- which is still prohibited -- do not need to take any extreme corrective measures in response, the Pentagon said.  In particular, there is no need to prepare a formal incident report or to "sanitize" their information systems by overwriting or degaussing them.  Instead, the documents can simply be deleted.

"In the case of classified documents inadvertently accessed or downloaded from the WikiLeaks website or other websites posting WikiLeaks-related classified documents, the IAM [information assurance manager] will document each occurrence and delete the affected file(s) by holding down the SHIFT key while pressing the DELETE key for Windows-based systems," said Acting Under Secretary of Defense Thomas A. Ferguson in a January 11 memo.

(source: fas.org)

PUBLISHING CLASSIFIED INFO: A REVIEW OF RELEVANT STATUTES

"There appears to be no statute that generally proscribes the acquisition or publication of diplomatic cables," according to a newly updated report (pdf) from the Congressional Research Service, "although government employees who disclose such information without proper authority may be subject to prosecution."

Using the shift and delete keys simultaneously is a way of "permanently deleting" a document, so that it is removed from the file directory and does not appear in the Trash or Recycle Bin.  This action does not, however, physically erase or eliminate the document from the computer's hard drive.  In other cases of inadvertent transfer of classified information to an unclassified system, a more rigorous response is often required.  But this will now be good enough for the purpose of eliminating classified Wikileaks documents.

"No incident report or further sanitization of government IT systems is required," Under Secretary Ferguson continued.

The new flexibility only extends to Wikileaks-related documents, not to other "spillages" of classified information, he said.  "This guidance pertains only to the accessing or downloading of the classified documents described above because of the extent of the compromise and the prohibitive cost of standard sanitization procedures.  All other classified spillages must be handled in accordance with existing regulations," according to the Pentagon memo.

See "Notice to DoD Employees and Contractors on Protecting Classified Information and the Integrity of Unclassified Government Information Technology (IT) Systems," memorandum for senior DoD officials from Acting Under Secretary of Defense Thomas A. Ferguson, January 11, 2011.

But there is a thicket of statutes, most notably including the Espionage Act, that could conceivably be used to punish unauthorized publication of classified information, such as the massive releases made available by Wikileaks.  See "Criminal Prohibitions on the Publication of Classified Defense Information", December 6, 2010.

The updated CRS report sorts through those statutes, provides an account of recent events, presents a new discussion of extradition of foreign nationals who are implicated by U.S. law, and summarizes new legislation introduced in the Senate (S. 4004).

A previous version (pdf) of the CRS report, issued in October, was cited by Sen. Dianne Feinstein in a Wall Street Journal op-ed yesterday in support of prosecuting Wikileaks, though the report did not specifically advise such a course of action.  Sen. Feinstein also seemed to endorse the view that the State Department cables being released by Wikileaks are categorically protected by the Espionage Act and should give rise to a prosecution under the Act.

But the Espionage Act only pertains to information "relating to the national defense," and only a minority of the diplomatic cables could possibly fit that description.

The new CRS report put it somewhat differently: "It seems likely that most of the information disclosed by WikiLeaks that was obtained from Department of Defense databases [and released earlier in the year] falls under the general rubric of information related to the national defense. The diplomatic cables obtained from State Department channels may also contain information relating to the national defense and thus be covered under the Espionage Act, but otherwise its disclosure by persons who are not government employees does not appear to be directly proscribed. It is possible that some of the government information disclosed in any of the three releases does not fall under the express protection of any statute, despite its classified status."

Incredibly, CRS was unable to meaningfully analyze for Congress the significance of the newest releases because of a self-defeating security policy that prohibits CRS access to the leaked documents. 

The CRS report concludes that any prosecution of Wikileaks would be unprecedented and challenging, both legally and politically.  "We are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship."

For our part, we would oppose a criminal prosecution of Wikileaks under the Espionage Act.

(source: fas.org)

CRS SEEKS GUIDANCE ON USING LEAKED DOCS

After its access to the Wikileaks web site was blocked by the Library of Congress, the Congressional Research Service this week asked Congress for guidance on whether and how it should make use of the leaked records that are being published by Wikileaks, noting that they could "shed important light" on topics of CRS interest.

CRS "has informed our House and Senate oversight committees, and solicited their guidance, regarding the complexities that the recent leaks of classified information present for CRS," wrote CRS Director Daniel Mulhollan in a December 6 email message (pdf) to all CRS staff.  "I have also contacted the majority and minority counsels of select committees in the House and Senate requesting guidance on the appropriate boundaries that CRS should recognize and adhere to in summarizing, restating or characterizing open source materials of uncertain classification status in unclassified CRS reports and memoranda for Congress."

"Our challenge is how to balance the need to provide the best analysis possible to the Congress on current legislative issues against the legal imperative to protect classified national security information. This is especially a problem in light of the massive volume of recently released documents, which may shed important light on research and analysis done by the Service," Mr. Mulhollan wrote.

"As guidance becomes available from Congress, I will follow-up with additional information.  At present, it seems clear that the republication of known classified information by CRS in an unclassified format (e.g., CRS reports or congressional distribution memoranda) is prohibited. We believe this prohibition against the further dissemination of classified information in an unclassified setting applies even if a secondary source (e,g., a newspaper, journal, or website) has reprinted the classified document. The laws and applicable regulations are decidedly less clear, however, when it comes to referencing and citing secondary sources that refer to, summarize, or restate classified information."

(source: fas.org)

BLOCKING ACCESS TO WIKILEAKS MAY HARM CRS, ANALYSTS SAY

The Library of Congress confirmed on Friday that it had blocked access from all Library computers to the Wikileaks web site in order to prevent unauthorized downloading of classified records such as those in the large cache of diplomatic cables that Wikileaks began to publish on November 28. 

Since the Congressional Research Service is a component of the Library, this means that CRS researchers will be unable to access or to cite the leaked materials in their research reports to Congress.  Several current and former CRS analysts expressed perplexity and dismay about the move, and they said it could undermine the institution's research activities.

"It's a difficult situation," said one CRS analyst. "The information was released illegally, and it's not right for government agencies to be aiding and abetting this illegal dissemination.  But the information is out there.  Presumably, any Library of Congress researcher who wants to access the information that Wikileaks illegally released will simply use their home computers or cellphones to do so.  Will they be able to refer directly to the information in their writings for the Library?  Apparently not, unless a secondary source, like a newspaper, happens to have already cited it."

"I can understand LOC blocking the public's access to Wikileaks," a former CRS analyst said.  "It would have no control over someone from the public using classified information for impermissible or improper purposes.  [But] the connection between LOC and CRS has always been somewhat fuzzy because Congress intended CRS to have a certain amount of autonomy.  There should be room for CRS to adopt a different policy, particularly for specialists who have security clearances, know how to protect classified information, and can be entrusted to use Wikileaks appropriately.  To me, it is a wrong course to simply close the door tightly without searching for a compromise needed to continue providing Congress with high-level professional analysis."

In fact, if CRS is "Congress's brain," then the new access restrictions could mean a partial lobotomy.

"I don’t know that you can make a credible argument that CRS reports are the gold standard of analytical reporting, as is often claimed, when its analysts are denied access to information that historians and public policy types call a treasure trove of data," another former CRS employee said.

"I understand the rationale behind the policy decision to preclude government agencies from making the information available via their sites as a matter of pure principle.  On the other hand (as CRS is famous for saying), in some cases it would clearly diminish the weight of some of the analysis CRS does on policy issues, particularly on foreign affairs and military strategy where it is widely known that key information that would help inform thoughtful and comprehensive analysis was released on Wikileaks."

"As an example, when [CRS Middle East analyst] Ken Katzman writes on U.S. policy towards Iran I don’t know how he could meet the high professional standards for completeness and accuracy he routinely meets if he can’t refer to the information in the [leaked] diplomatic notes that express the thoughts of key leaders in the region on the need to strike Iran’s nuclear program.  The same with North Korea; how do you provide Congress complete and accurate analysis to inform their decision making that ignores the [leaked] information on China’s increasing frustration with Pyongyang?  The examples could go on and on."
 
"I’m sure public policy analysts from other organizations are going to use the [Wikileaks] information and their reports may prove more valuable to decision makers than CRS reports," the former CRS employee said.

Another former analyst questioned the legal basis for the Library of Congress's action.

"In its press release, LOC seems to be saying that it is following OMB advice regarding the obligation of federal agencies and federal employees to protect classified information and to otherwise protect the integrity of government information technology systems.  But LOC is statutorily chartered as the library of the House and the Senate.  It is a legislative branch agency.  I don't recall either chamber directing the blocking of access to Wikileaks for/or by its committees, offices, agencies, or Members."

Interestingly, the OMB guidance did not require federal agencies to block access to Wikileaks, only to warn employees against downloading classified information.  So by imposing such blocks, the Library of Congress has actually exceeded the instructions of OMB.

The Library did not reply to an inquiry from Secrecy News over the weekend concerning the impact of its restricted access policy on CRS.  If a reply is forthcoming, it will be posted on the Secrecy News blog.

(source: fas.org)

NATIONAL SECURITY SECRECY: HOW THE LIMITS CHANGE

On December 3, I participated in an interesting, somewhat testy discussion about Wikileaks on the show Democracy Now along with Glenn Greenwald of Salon.com, who is a passionate defender of the project.  The ultimate victory of Wikileaks (or something like it) is guaranteed, Mr. Greenwald suggested, so any criticism of it is basically irrelevant.

"We can debate WikiLeaks all we want," he said, "but at the end of the day, it doesn't really matter, because the technology that exists is inevitably going to subvert these institutions' secrecy regimes. It's too easy to take massive amounts of secret [material] and dump it on the internet....  And I think that what we're talking about is inevitable, whether people like Steven Aftergood or Joe Lieberman or others like it or not."

This seems like wishful thinking.  It is true that Wikileaks offers the most direct public access to the diplomatic cables and other records that it has published, most of which could not be obtained any time soon through normal channels.  But instead of subverting secrecy regimes, Wikileaks appears to be strengthening them, as new restrictions on information sharing are added and security measures are tightened.  (Technology can be used to bolster secrecy as well as subvert it.)

In fact, Wikileaks may deliberately be attempting, in a quasi-Marxist way, to subvert secrecy by provoking governments to strengthen it.  But please try this in your own country first.

It was ordinary political advocacy, not leaks, that produced reversals of longstanding U.S. government secrecy policies this year on nuclear stockpile secrecy and intelligence budget secrecy.  It was also political advocacy, not leaks, that led to the declassification of more than a billion pages of classified records since 1995.  Obviously, much more remains to be done, and the tools available to transparency advocates are not as powerful as one would wish.  Leaks that serve the public interest have their honored place;  more would be welcome.  Advocacy may fail, and often does.  Nothing is inevitable, as far as I know.  But so far it is still politics, not the subversion or repudiation of politics, that has produced the greater impact on U.S. secrecy policy.  (The calculation may well be different in other countries.)

The susceptibility of secrecy policy to political action was discussed in a paper I wrote on "National Security Secrecy: How the Limits Change" (pdf). It will appear in the forthcoming Fall 2010 issue of the journal Social Research that is devoted to the topic of "Limiting Knowledge in a Democracy."

(source: fas.org)

SIFTING THROUGH THE FALLOUT FROM WIKILEAKS

The ongoing release of U.S. diplomatic communications by the Wikileaks organization is "embarrassing" and "awkward," said Secretary of Defense Robert M. Gates yesterday, but its consequences for U.S. foreign policy are likely to be "fairly modest."

"I've heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on.  I think those descriptions are fairly significantly overwrought. The fact is, governments deal with the United States because it's in their interest, not because they like us, not because they trust us, and not because they believe we can keep secrets... Other nations will continue to deal with us. They will continue to work with us. We will continue to share sensitive information with one another."

Coming from the Secretary of Defense, that measured statement should help to deflate some of the more extreme reactions to the Wikileaks action.

The Obama Administration should "use all legal means necessary to shut down Wikileaks before it can do more damage by releasing additional cables," said Sen. Joe Lieberman on November 28.

Wikileaks leader Julian Assange should be designated an enemy combatant, suggested Rep. Steve King (R-IA) on the House floor yesterday.  Then he could be "moved over to a place offshore of the United States outside of the jurisdiction of the Federal courts..., and adjudicated under a military tribunal in a fashion that was designed by this Congress and directed by this Congress. That's what I'm hopeful that we'll be able to do."

Such fantastic notions probably cannot survive the judgment of the U.S. Secretary of Defense that what is at stake is "embarrassment" and "awkwardness," not the defense of the realm.

That does not mean that the policy consequences of the latest Wikileaks release will be insignificant.  Information sharing within the government is already being curtailed, and avenues of public disclosure may be adversely affected by the Wikileaks controversy. In a November 28 email message to reporters, the Pentagon spelled out several security measures that have already been implemented to restrict and monitor the dissemination of classification information in DoD networks.

"Bottom line: It is now much more difficult for a determined actor to get access to and move information outside of authorized channels," wrote Pentagon spokesman Bryan Whitman.

Meanwhile, the Office of Management and Budget ordered (pdf) each agency that handles classified information to perform a security review of its procedures and to reinforce the traditional "need to know" requirements that strictly limit individual access to classified information.

"Any failure by agencies to safeguard classified information pursuant to relevant laws, including but not limited to Executive Order 13526, Classified National Security Information (December 29, 2009), is unacceptable and will not be tolerated," the OMB memo stated.

The possibility of prosecuting Wikileaks as a criminal enterprise is reportedly under consideration, and has been publicly urged by some members of Congress and others.  The feasibility of such a prosecution is uncertain, and nothing quite like it has been attempted before.  The most "promising" legal avenue of attack against Wikileaks would seem to be a charge of conspiracy to violate the Espionage Act (under 18 USC 793g), based on the allegation that Wikileaks encouraged and collaborated with others in violating the terms of the Act.  But these are dangerous legal waters, fraught with undesirable consequences for other publishers of controversial information.

(source: fas.org)

DOD SEES NO INTEL COMPROMISE FROM WIKILEAKS DOCS

The unauthorized release of tens of thousands of classified U.S. military records from the war in Afghanistan last July on the Wikileaks website did not result in the disclosure of sensitive intelligence sources, according to a mid-August assessment by the Department of Defense that has just been made public.

"The review to date has not revealed any sensitive intelligence sources and methods compromised by this disclosure," wrote Secretary of Defense Robert M. Gates in an August 16 letter (pdf) to Senate Armed Services Committee Chairman Carl Levin.

This is consistent with the fact that the Afghan war documents disclosed by Wikileaks were classified at the collateral Secret level and were not compartmented intelligence records.  Intelligence source identities and related information would normally not appear in Secret documents.

On the other hand, Secretary Gates wrote, "the documents do contain the names of cooperative Afghan nationals and the Department takes very seriously the Taliban threats recently discussed in the press.  We assess this risk as likely to cause significant harm or damage to the national security interests of the United States and are examining mitigation options."

The Taliban threats mentioned by Secretary Gates include a statement by Taliban spokesman Zabihullah Mujahid, who said on July 29 that the Taliban were studying the Wikileaks documents in order to identify and punish Afghan collaborators.  "We will investigate through our own secret service whether the people mentioned are really spies working for the U.S. If they are U.S. spies, then we know how to punish them," the Taliban spokesman said. 

"People named in those documents have a reasonable belief that they are going to get killed," said author and New Yorker writer Steve Coll, who has reported extensively from the region.  See "Taliban Study WikiLeaks to Hunt Informants" by Robert Mackey, New York Times The Lede, July 30.  However, there is no evidence to date that the Taliban has carried out any such threats against individuals who were named in the Wikileaks documents.

The release of the August 16 Gates memo was reported on October 15 by the Associated Press and Bloomberg News.

(source: fas.org)

CAN THE SECRECY SYSTEM BE FIXED?

The release of some 90,000 classified records on the Afghanistan War by Wikileaks is the largest single unauthorized disclosure of currently classified records that has ever taken place, and it naturally raises many questions about information security, the politics of disclosure, and the possible impact on the future conduct of the war in Afghanistan.

But among those questions is this:  Can the national security classification system be fixed before it breaks down altogether in a frenzy of uncontrolled leaks, renewed barriers against information dissemination, and a growing loss of confidence in the integrity of the system?

That the classification system needs fixing is beyond any doubt.

"I agree with you, sir," Gen. James R. Clapper, Jr., told Sen. Ron Wyden at his DNI confirmation hearing last week, "we do overclassify."

That makes it more or less unanimous.  What has always been less clear is just what to do about the problem.

In what may be the last opportunity to systematically correct classification policy and to place it on a sound footing, the Obama Administration has ordered all classifying agencies to perform a Fundamental Classification Guidance Review.  The purpose of the Review is to evaluate current classification policies based on "the broadest possible range of perspectives" and to eliminate obsolete or unnecessary classification requirements.  Executive Order 13526, section 1.9 directed that such reviews must be completed within the next two years.

"There is an executive order that we, the [intelligence] community, are in the process of gearing up on how to respond to this, because this is going to be a more systematized process, and a lot more discipline to it," Gen. Clapper said.

"Having been involved in this, I will tell you my general philosophy is that we can be a lot more liberal, I think, about declassifying, and we should be," Gen. Clapper said.

It is unclear at this point whether the Fundamental Review will be faithfully implemented by executive branch agencies, whether it will have the intended effect of sharply reducing the scope of the national security classification system, or whether the system itself is already beyond repair.

(source: fas.org) 

CAN WHISTLEBLOWERS BE PROTECTED?

There are probably many reasons why people may become motivated to break ranks, to violate their non-disclosure agreements, and to disclose classified information to unauthorized persons.  One of the most compelling reasons for doing so is to expose perceived wrongdoing, i.e. to "blow the whistle."

It obviously follows that the government has an interest in providing safe, secure and meaningful channels for government employees (and contractors) to report misconduct without feeling that they need to go outside the system to get a fair hearing for their concerns.  Unfortunately, would-be whistleblowers today cannot have much confidence in those official channels.

To the contrary, "most employees who reported disclosing wrongdoing or filing a grievance believe that they experienced negative repercussions for doing so," according to a recent report to the President from the Merit Systems Protection Board.  See "Prohibited Personnel Practices—A Study Retrospective," June 2010 (at page 16).

"Morale, organizational performance, and (ultimately) the public suffer unnecessarily when employees are reluctant to disclose wrongdoing or to seek redress for inequities in the workplace," said the MSPB report, which did not specifically address whistleblowing involving classified information.

"Work remains to be done in creating a workplace where employees can raise concerns about organizational priorities, work processes, and personnel policies and decisions without fear of retaliation, and where managers can respond to such concerns openly and constructively," the Board report said.

(source: fas.org)

 
WIKILEAKS: GIVING LEAKS A BAD NAME

Unauthorized disclosures of classified information ("leaks") often play an important role in the proper functioning of American democracy.  They can serve as a safety valve against official excess, and an implicit check against government misconduct.  Even the mere possibility of a leak can have a salutary effect, because it imposes conscious or subconscious limits on what officials might try to do if they were certain they would be undetected.  (The FAS Project on Government Secrecy began in 1991 with our unauthorized receipt and disclosure of records on a problematic unacknowledged special access program called Timber Wind (pdf) whose very existence was classified.) 

But though many government records are wrongly kept secret, the anti-secrecy website Wikileaks managed to get its hands on some documents on the Afghanistan War that were properly classified, at least in part -- since they included the unredacted names of Afghan intelligence sources and collaborators -- and then to release them (while temporarily withholding others for closer review).

One initial response to Wikileaks' clumsy disclosure has been to bolster public support of the classification system, which was presumably not the intended result.  Sixty-seven percent of respondents polled endorsed the view that "When media outlets release secret government documents relating to the War in Afghanistan [they are] hurting national security," according to a July 30-31 poll conducted by Rasmussen Reports.

Rep. Rush Holt (D-NJ), who has been a persistent critic of overclassification -- and who voted to oppose supplemental funding for the war in Afghanistan -- last week joined the chorus of critics who have spoken out against Wikileaks' indiscriminate disclosure practices.

"Before rushing to judgment about this very large, unauthorized disclosure of information, I wanted to review some of the documents myself to determine if indeed potential human sources of information had been compromised," Rep. Holt said in a statement in the August 10 Congressional Record.  "After reviewing some of these documents, I have concluded that their release could indeed cause real harm to real people."

Daniel Ellsberg, the archetypal modern leaker of classified information who was responsible for the unauthorized disclosure of the Top Secret Pentagon Papers in 1971, nevertheless withheld from public disclosure four volumes of the 47-volume Papers which dealt with diplomatic negotiations because he judged them to be too sensitive for release at that time (as noted by John Prados and Margaret Pratt Porter in "Inside the Pentagon Papers," p. 10).  The four withheld volumes were not released in full until 2002.  Regrettably, Wikileaks has failed to demonstrate similar discernment in handling classified records, and it will be up to others to try to repair the damage it has caused.

(source: fas.org)

 
IS PUBLICATION OF CLASSIFIED INFO A CRIMINAL ACT?

When Wikileaks published tens of thousands of classified U.S. military records concerning the war in Afghanistan last July, did it commit a criminal act under U.S. law?  That was the question posed by a new report (pdf) from the Congressional Research Service.  In the end, the CRS report tentatively concludes that "although unlawful acquisition of information might be subject to criminal prosecution, the publication of that information remains protected."

What's more interesting than the report's ultimate conclusion is its probing treatment of basic questions such as the scope of First Amendment protections, and the application of U.S. law to foreign jurisdictions.

Could the Espionage Act possibly be used against foreigners acting outside the United States?  Remarkably, the CRS report noted that it could.  "The only court that appears to have addressed the question" ruled in 1985 that a citizen of East Germany, Dr. Alfred Zehe, could be prosecuted under the Espionage Act and he was in fact convicted.

On the other hand, could it be that the First Amendment provides protection to foreign publishers?  There doesn't seem to be a crisp yes or no answer to this question.  But the CRS report, written by national security law specialist Jennifer K. Elsea, turned up a 1964 district court decision which suggested that foreign publishers do enjoy First Amendment rights, if only because American readers have a right to the information that they publish.  "The essence of the First Amendment right to freedom of the press is not so much the right to print as it is the right to read," that court ruled.  Therefore, "the rights of readers are not to be curtailed because of the geographical origin of printed materials."

But what about the publication of materials that have been illegally acquired?  That seems to be an open question.  The CRS report cited a 1989 case (Florida Star v. BJF at footnote 8) where the U.S. Supreme Court said that the question of "whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well" is "not definitively resolved."

The comparatively short (14 page) CRS report, interesting as it is, is necessarily incomplete.

So, for example, it does not grapple in any detail with the legacy of the so-called AIPAC case. Although that case was ultimately dismissed in 2009, the court there upheld the constitutionality of the Espionage Act even when applied to private citizens who do not hold security clearances but who received and transmitted classified defense information without authorization.

Thus, Judge T.S. Ellis III ruled (pdf) in August 2006:  "Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, 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 CRS report also does not explicitly address 18 U.S.C. 793(g), which is the section of the Espionage Act that pertains to conspiracy.  Under this provision, the criminal offense would not be publication of the restricted records, but collusion with a source to violate the terms of the Espionage Act.  If Wikileaks has violated U.S. law -- which remains uncertain -- then its liability would likely be centered here.   (The possible relevance of 793g to the Wikileaks case was noted by the pseudonymous Equ Privat in the blog Finem Respice on August 1, and in private correspondence.)

A copy of the CRS report was obtained by Secrecy News.  See "Criminal Prohibitions on the Publication of Classified Defense Information," Congressional Research Service, September 10, 2010.

(source: fas.org)