Classification Laws Apply to Everyone, Judge Says
January 25th, 2006 by Steven AftergoodIn a startling pronouncement that can only heighten tensions between the press and the government, a federal judge said last week that the laws governing classified information apply to anyone who is in receipt of such information, including reporters who are the recipients of “leaks.”
“Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law,” said Judge T.S. Ellis III. “That applies to academics, lawyers, journalists, professors, whatever.”
Judge Ellis’s statement came at the conclusion of a sentencing hearing for Lawrence Franklin, the former Pentagon analyst who was charged along with two former officials of the American Israel Public Affairs Committee (AIPAC) with felony violations of the Espionage Act.
The extraordinary claim that mere possession of classified information triggers legal obligations leads to absurd conclusions, particularly since anyone who reads the daily newspaper comes into “unauthorized possession of classified information.”
More importantly, it serves to discourage investigative reporting of illegal government activities that happen to be classified.
The provisions of the Espionage Act to which Judge Ellis was referring are “in many respects incomprehensible,” wrote Harold Edgar and Benno C. Schmidt, Jr. in their definitive1973 study “The Espionage Statutes and Publication of Defense Information,” Columbia Law Review, May 1973, vol. 73, pp. 929-1087 (Secrecy News, 10/19/05).
Judge Ellis’s statement was first reported in “Sentence in Franklin case sends chill through free-speech community” by Ron Kampeas, Jewish Telegraphic Agency, January 24.
Lawrence A. Franklin was sentenced January 20 on three felony counts: conspiracy to communicate national defense information to persons not entitled to receive it; conspiracy to communicate classified information to an agent of a foreign government; and the unlawful retention of national defense information. See this January 20 news release from the Department of Justice.
The prosecution of the two former AIPAC officials who were charged with Franklin, Steve Rosen and Keith Weissman, raises press freedom issues with even greater urgency since neither of them, unlike Franklin, held a security clearance.
Their attorneys last week filed motions to dismiss the case, but those motions are sealed pending a security review.
January 30th, 2006 at 3:24 pm
While the judge’s statement certainly provides a clue as to how he’d be inclined to rule in future cases of the sort, does it have any legal relevance beyond that?
In fact, now that I think about it, doesn’t his statement provide grounds for the defense in future secrecy cases to demand that he recuse himself?
January 30th, 2006 at 6:13 pm
What “laws” does the judge have in mind? The last time I checked, Congress had not adopted an official secrets act making it illegal to possess classified information. Indeed, the whole classification system is a product of executive regulation that cannot criminalize conduct. The Fourth Circuit Court of Appeals has held that one who takes classified information can be prosecuted for theft of government property but so far as I know, the Supreme Court has never approved that ruling.
January 30th, 2006 at 8:32 pm
> What “laws” does the judge have in mind?
I suspect they were the ones that originated during WW I and are currently to be found in 18 USC 79x.
See http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000793—-000-.html
These are really scary if you take them seriously. Thankfully, they haven’t been taken all that seriously, at least up to now.
January 31st, 2006 at 9:56 pm
“they haven’t been taken all that seriously, at least up to now.”
And for good reason.
The provision you cite is part of the Espionage Act mentioned in the original post. It does not make possession of classified information a crime and most classified information would not meet the statutory definitions even if the person intended to use the information to harm the US as the statute requires.