Leaking classified information to an unauthorized person may be the right thing to do in certain circumstances, suggested Judge T.S. Ellis, III of the Eastern District of Virginia in a newly released hearing transcript from last year. In particular, he said, leaking may be an acceptable move if the leaker accepts full responsibility for his actions.
Ordinarily, disclosing classified information to an unauthorized person is deemed unethical, if one has signed a non-disclosure agreement not to do so. It may also be illegal, if the classified information falls within certain categories whose unauthorized disclosure is proscribed by law (including communications intelligence-related information, identities of covert agents, nuclear weapons design information, and “national defense information”).
“Whistleblowing” in itself is not an adequate rationale for leaking classified information, Judge Ellis said. “Simply because you believe that something that’s going on that’s classified should be revealed to the press and to the public, so that the public can know that its government is doing something you think is wrong, that doesn’t justify [publicly disclosing] it…. Noble motives don’t erase the violation.”
However, he said, “you may want to go ahead and do it [anyway], but you have to stand up and take the consequences.”
“I don’t have a problem with people doing that if they are held accountable for it,” Judge Ellis said. “One might hope that, for example, someone might have the courage to do something that would break the law if it meant they’re the savior of the country. But then one has to take the consequences, because the rule of law is so important.”
“Disclosing it was okay if the person is willing to stand up and say, ‘I did it. Give me the consequences’.”
Judge Ellis spoke at a June 11, 2009 hearing on the reduction of the sentence for Lawrence A. Franklin, who was convicted of disclosing classified information to two officials of the American Israel Public Affairs Committee, Steven Rosen and Keith Weissman, who were themselves charged with unauthorized receipt and disclosure of classified information. The controversial case against them was abandoned by the government last year. Based on his cooperation with prosecutors, Mr. Franklin sought and received a reduction in his own 12-year prison sentence to probation and ten months in “community confinement.”
In addition, Mr. Franklin was ordered to spend 100 hours “giving talks to young people” about the need to protect classified information. “What I want you to speak to these young people about, Mr. Franklin, is the rule of law and the obligation that public officials have and the importance of classified information,” Judge Ellis explained. “Secrets are important to a nation. If we couldn’t keep our secrets, we would be at greater risk…. And I am going to ask that a probation officer send me copies of your lectures on this subject.”
Mr. Franklin is the second person convicted of unauthorized disclosure of classified information in a non-espionage case. The first was Samuel L. Morison, who was convicted of providing classified intelligence photographs to Jane’s Defence Weekly in 1985. The third conviction, still pending, is that of Shamai Leibowitz, a former FBI translator who pled guilty last December to the unauthorized disclosure of five classified documents to a blogger. Prosecutors specifically acknowledged Mr. Leibowitz’s “affirmative acceptance of personal responsibility for his criminal conduct.”
The transcript of Mr. Franklin’s June 2009 sentence hearing was finally prepared last week. A copy was obtained by Secrecy News and posted on the website of the Federation of American Scientists.