Posts from August, 2011

Is Unauthorized Receipt of Classified Information a Felony?

Could the unauthorized receipt of classified information be a felony?  Judge Leonie M. Brinkema made that startling claim in passing in a July 29 memorandum opinion (pdf) in the case of suspected leaker Jeffrey Sterling that was unsealed yesterday.  But her statement is almost certainly a misunderstanding and a misrepresentation of the law.

Judge Brinkema’s memorandum opinion, first reported and released by the New York Times, was written to substantiate an order issued last week that limited the scope of testimony of Times reporter James Risen in the upcoming trial of Mr. Sterling, and excused Mr. Risen from identifying his source, who the prosecution says was Mr. Sterling.  The newly released opinion affirmed the existence of a qualified reporter’s privilege which protects a journalist’s confidential relations with a source under some circumstances.

But astonishingly, in her explanation of why certain remarks previously made by Mr. Risen to a third party would not be considered hearsay and could be admitted at trial, Judge Brinkema wrote (at page 25):

“Risen’s statements are adverse to his penal interest because receiving classified information without proper authorization is a federal felony under 18 U.S.C. 793(e).”

This seems quite wrong.  The espionage statutes including 793(e) are notoriously ambiguous and susceptible to multiple, conflicting interpretations, but no one has ever read them as Judge Brinkema did.  Section 793(e) deals with unauthorized transmission of classified information;  contrary to her assertion, it does not prohibit unauthorized receipt at all.

Judge Brinkema offered further support for her claim:  “see U.S. Sentencing Guidelines Manual § 2M3.3 (providing a base offense level 29 for convictions for the ‘Unauthorized Receipt of Classified Information.’),” she wrote.

But upon inspection, that citation does not hold up either.  Section 2M3.3 provides sentencing guidelines for multiple statutes (18 USC 793d, e, and g; 18 USC 798; and 50 USC 783), one of which — 50 USC 783b — does indeed concern unauthorized receipt of classified information.  But that one applies only to agents or representatives of a foreign government, or to members of a Communist organization.

In other words, unless Mr. Risen is a foreign agent or a Communist, there is no statute that specifically prohibits him from receiving classified information without authorization.  There just isn’t.

(Footnote 6 of the new opinion adds:  “The government clearly recognizes Risen’s potential exposure to criminal liability and has offered to obtain an order of immunity for him.”  The nature of the supposed criminal liability or the proposed immunity was not spelled out.  Nor, of course, has Mr. Risen actually been charged with any offense.)

Judge Brinkema got it wrong, I believe.  That can happen.  The point is incidental to her larger argument, but unfortunately it adds new confusion to an area of the law that is already complicated and contested.  Ideally, one hopes that she would see fit to correct the record.

OLC Opinion Notes Role for Congress in Classification

A newly disclosed opinion (pdf) of the Department of Justice Office of Legal Counsel (OLC) concludes that if information gathered in the course of surveillance under the Foreign Intelligence Surveillance Act (FISA) is used to revoke an individual’s security clearance, then that individual is generally entitled to receive notice of the information that was used against him — unless the information is subject to executive privilege.

The June 3, 2011 opinion also briefly addresses the subject of congressional involvement in classification policy and allows for a carefully hedged role for Congress.

“We agree with the FBI that the President’s constitutional authority to classify information concerning the national defense and foreign relations of the United States and to determine whether particular individuals should be given access to such information ‘exists quite apart from any explicit congressional grant’…,” wrote Caroline D. Krass, then the acting head of the Office of Legal Counsel.

“But that does not imply that Congress entirely lacks authority to legislate in a manner that touches upon disclosure of classified information,” she added.

“For example, we believe Congress’s authority to regulate foreign intelligence surveillance under FISA, and to regulate the terms of federal employment, does, as a general matter, permit  Congress to impose the notification requirement [when FISA-derived information is used in other legal proceedings], even when that requirement reaches proceedings concerning security clearance revocations,” she wrote.

This does not really break any new ground in classification policy or politics.  Nor does it exhaust the subject of congressional authority with respect to classified information.  But it is noteworthy to have it re-stated publicly and officially nevertheless.

Federal Support for Academic Research, and More from CRS

Recent reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Federal Support for Academic Research,” June 17, 2011

“Financial Aid for Students: Print and Web Guides,” June 24, 2011

“Patent Reform in the 112th Congress: Innovation Issues,” June 30, 2011

“Congressional Nominations to U.S. Service Academies: An Overview and Resources for Outreach and Management,” July 5, 2011

“Real Earnings, Health Insurance and Pension Coverage, and the Distribution of Earnings, 1979-2009,” July 6, 2011

“Challenge to the Boeing-Airbus Duopoly in Civil Aircraft: Issues for Competitiveness,” July 25, 2011

“Statutory Limits on Total Spending as a Method of Budget Control,” July 26, 2011

Senate Intel Committee Blocks Report on “Secret Law”

The Senate Intelligence Committee rejected an amendment that would have required the Attorney General and the Director of National Intelligence to confront the problem of “secret law,” by which government agencies rely on legal authorities that are unknown or misunderstood by the public.

The amendment, proposed by Sen. Ron Wyden and Sen. Mark Udall, was rejected on a voice vote, according to the new Committee report on the FY2012 Intelligence Authorization Act.

“We remain very concerned that the U.S. government’s official interpretation of the Patriot Act is inconsistent with the public’s understanding of the law,” Senators Wyden and Udall wrote.  “We believe that most members of the American public would be very surprised to learn how federal surveillance law is being interpreted in secret.”

The Senators included dissenting remarks, along with the text of their rejected amendment, in the Committee report.

Sen. Wyden and Sen. Udall also offered another amendment that would have required the Justice Department Inspector General to estimate the number of Americans who have had the contents of their communications reviewed in violation of the FISA Amendments Act of 2008.  That amendment too was rejected, by a vote of 7-8.  All Committee Republicans, plus Democrat Bill Nelson (D-FL), opposed the amendment.

“It is a matter of public record that there have been incidents in which intelligence agencies have failed to comply with the FISA Amendments Act, and that certain types of compliance violations have continued to recur,” Senators Wyden and Udall wrote. “We believe it is particularly important to gain an understanding of how many Americans may have had their communications reviewed as a result of these violations.”

“We understand that some of our colleagues are concerned that our amendment did not explicitly state that the final report of the Inspector General’s investigation should be classified. We respectfully disagree that this is necessary,” they said. “In any event, we are confident that the executive branch will seek to classify any information that it believes needs to be secret, and that it is not necessary for Congress to direct that particular reports be classified.”

The Senate Intelligence Committee report was silent on the status of the Committee’s investigation of the CIA’s post-9/11 detention and interrogation program, which has been underway for over two years.

The Obama Administration is invoking the state secrets privilege to seek partial dismissal of a lawsuit alleging unlawful surveillance of Southern California mosques, reported Josh Gerstein in Politico on August 1.

Former ISOO Director Files Complaint on Overclassification

J. William Leonard, the former director of the Information Security Oversight Office (ISOO) has filed a complaint with the current ISOO director alleging that the National Security Agency wrongly classified a document, which was then used as a basis for the Espionage Act indictment of Thomas Drake, the New York Times reported.  See “Complaint Seeks Punishment for Classification of Documents” by Scott Shane, August 2.

“If you’re talking about throwing someone in jail for years, there absolutely has to be responsibility for decisions about what gets classified,” Mr. Leonard told the Times.

Mr. Leonard had been a volunteer expert witness for the defense in the recently concluded prosecution of Thomas Drake, the former NSA official. The document that is the subject of his complaint is no longer classified, but it is still subject to a protective order.  Mr. Leonard requested and received permission from the court to pursue his complaint last Friday.

“A surprising war on leaks under Obama,” an op-ed by Thomas Drake and Jesselyn Radack, was published in the Philadelphia Inquirer on August 1.

Faster FOIA Bill Passed in Senate Again

The Faster FOIA Act, a modest bit of legislation to establish a commission “to examine the root causes of FOIA delays,” was introduced and passed in the Senate yesterday.

It was previously passed in May, but the resulting bill was amended by the House in order to serve as a vehicle for its debt ceiling maneuver, stripping out the FOIA-related content.  To reactivate the original Faster FOIA Act bill, it needed to be reintroduced. The new bill, S. 1466, passed on a voice vote on August 1, and will move once again to the house.

The Department of Defense has updated its Freedom of Information Act directive (pdf).  In mostly new language added last week, the directive said “It is DoD policy to promote transparency and accountability by adopting a presumption in favor of disclosure in all decisions involving the FOIA; responding promptly to requests in a spirit of cooperation; and by taking affirmative steps to make the maximum amount of information available to the public, consistent with the DoD responsibility to protect national security and other sensitive DoD information.”

Also new is a report from the Congressional Research Service on “Freedom of Information Act (FOIA): Background and Policy Options for the 112th Congress” (pdf), July 26, 2011.

Update: See, relatedly, Senate Passes Faster FOIA Bill Again Amid Growing Criticism by Channing Turner,, August 2.

Reporter Risen Will Not Have to Identify Source in Leak Trial

A judge ruled on Friday that New York Times reporter James Risen will not have to testify about the identity of a source in the upcoming trial of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to Risen.

The July 29 court order (pdf) said that Risen must testify only about certain non-privileged information.  Specifically, Mr. Risen was directed to appear at trial in order to confirm:  “(1) that Risen wrote a particular newspaper article or chapter of a book; (2) that a particular newspaper article or book chapter that Risen wrote is accurate; (3) that statements referred to in Risen’s newspaper article or book chapter as being made by an unnamed source were in fact made to Risen by an unnamed source; and (4) that statements referred to in Risen’s newspaper article or book chapter as being made by an identified source were in fact made by that identified source.”

The court order by Judge Leonie M. Brinkema was framed as a “partial grant” of the government’s motion to subpoena Mr. Risen.  But it was actually a defeat for the prosecution and an unambiguous victory for Mr. Risen.  This is clear from the fact that the court’s very language describing the required scope of Mr. Risen’s testimony was taken — practically word for word — from the June 21 motion by Risen’s attorneys to quash the subpoena, in which they set forth the limits of his willingness to testify (pp. 45-46).

Beyond the four enumerated categories Risen voluntarily agreed to discuss, “I cannot testify as to the Government’s other questions,” Mr. Risen wrote in his own affidavit (paragraph 60).

“To answer the Government’s other questions would violate my agreement to maintain in confidence not just the name(s) of my source(s), but information that would tend to reveal the identity/ies of my source(s). If I provide the testimony that has been requested of me, including the ‘what,’ ‘how,’ ‘when,’ and ‘where’ of acquiring each piece of confidential information, doing so will reveal my confidential source(s), regardless of whether I directly provide any name(s),” Mr. Risen wrote. “Accordingly, I cannot comply with the subpoena.”

Now the court said that he will not have to.

James Risen praised the court decision in a comment to Glenn Greenwald of Salon:

This is an important victory for the First Amendment, and for the freedom of the press in the United States. Some people don’t seem to understand the connection between the ability of journalists to protect their confidential sources and a free press. But if whistleblowers in government, in corporations, and elsewhere in society can be hounded and persecuted, and if the Justice Department is able to use its power to turn reporters into informants, then investigative journalism in America will surely wither and die. The First Amendment will have lost its meaning.

A memorandum opinion explaining the court order is still undergoing declassification review available here.

Mail Fraud Statute Sweeps Broadly

One of the peculiar features of the prosecution of suspected leaker Jeffrey Sterling is that he is charged with a seemingly unlikely count of “mail fraud.”

The government’s contention (in Count Eight of the indictment) is that by leaking information to author James Risen, whose books containing that information were later sent by mail to bookstores, Mr. Sterling engaged in mail fraud.

Mail fraud is no doubt a bad thing to do.  But to a surprising extent the opposite is also true. The law is so broadly written that many bad things that a person may do could turn out to be mail fraud.

“The mail and wire fraud statutes essentially outlaw dishonesty,” according to a new survey of the subject prepared by the Congressional Research Service which describes the statutes’ astonishing breadth.  (The CRS report does not address the Sterling case.)

“A defendant need not personally have mailed or wired a communication,” the CRS report said; “it is enough that he ’caused’ a mailing or transmission of a wire communication in the sense that the mailing or transmission was the reasonable foreseeable consequence of his intended scheme.”

See “Mail and Wire Fraud: A Brief Overview of Federal Criminal Law,” July 21, 2011.  An abridged version of the same report is here (both pdf).

“The mail fraud statute was first enacted in the late nineteenth century in order to prevent city slickers from using the mail to cheat guileless country folks,” the CRS report really says.

Wireless Evolution and Challenges to Law Enforcement

“The challenges facing LE [law enforcement] increase with the introduction of each new wireless device,” according to a newly disclosed FBI publication (pdf) which traces the development of wireless communications.

The publication, entitled “Wireless Evolution”, was prepared by the FBI’s Operational Technology Division and published in Emerging Technologies Research Bulletin in March 2011.  A copy was obtained by the Federation of American Scientists under the Freedom of Information Act.

Originally marked “Law Enforcement Sensitive,” it was redacted for release under FOIA and much of the discussion of the implications of new technologies for law enforcement was withheld.  But the remainder provides a remarkably comprehensive (though jargon intensive) account of new communications technologies of interest to law enforcement.

A reader who saw the original, unredacted report said “It does as good a job as I have seen of laying out, in great detail, the evolution of mobile communications from hardware, application, and network perspectives as might be of implication to investigations and analysis.  It also offers good projections on future trends.”

Portions of the report were described in Wired Threat Level on July 28.

A new report (pdf) from the Congressional Research Service addresses related law enforcement policy issues.

“The operational realities of 21st century crime and policing present significant challenges to U.S. policy makers,” the report said. “[P]olicies directed toward countering crime in one reality will impact crime and law enforcement countermeasures in other realities.”

See “The Interplay of Borders, Turf, Cyberspace, and Jurisdiction: Issues Confronting U.S. Law Enforcement,” July 19, 2011.  Congress has instructed CRS not to make its publications directly available to the public.  A copy of the new report was obtained by Secrecy News.