Criminal Prohibitions on the Publication of Classified Defense Information

"This report discusses the statutory prohibitions that may be implicated, including the Espionage Act; the extraterritorial application of such statutes; and the First Amendment implications related to such prosecutions against domestic or foreign media organizations and associated individuals.."
Criminal Prohibitions on the Publication of Classified Defense Information

Criminal Prohibitions on the Publication of Classified Defense Information

"This report identifies some criminal statutes that may apply to the publication of classified
defense information, noting that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States..."
http://www.fas.org/sgp/crs/secrecy/R41404.pdf

Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act

"A criminal prosecution involving classified information may cause tension between the
government’s interest in protecting classified information and the criminal defendant’s right to a constitutionally valid trial. In some cases, a defendant may threaten to disclose classified information in an effort to gain leverage. Concerns about this practice, referred to as “graymail,” led the 96th Congress to enact the Classified Information Procedures Act (CIPA) to provide uniform procedures for prosecutions involving classified information..."

Criminal Prohibitions on the Publication of Classified Defense Information

"The online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by The New York Times and other news media have focused attention on whether such publication violates U.S. criminal law. The suspected source of the material, Army Private Bradley Manning, has been charged with a number of offenses under the Uniform Code of Military Justice (UCMJ), including aiding the enemy, while a grand jury in Virginia is deciding whether to indict any civilians in connection with the disclosure. A number of other cases involving charges under the Espionage Act demonstrate the Obama Administration’s relatively hard-line policy with respect to the prosecution of persons suspected of leaking
classified information to the media..."

Criminal Prohibitions on the Publication of Classified Defense Information
"The recent online publication of classified defense documents and diplomatic cables by the
organization WikiLeaks and subsequent reporting by the New York Times and other news media
have focused attention on whether such publication violates U.S. criminal law. The Attorney
General has reportedly stated that the Justice Department and Department of Defense are
investigating the circumstances to determine whether any prosecutions will be undertaken in
connection with the disclosure.

This report identifies some criminal statutes that may apply, but notes that these have been used
almost exclusively to prosecute individuals with access to classified information (and a
corresponding obligation to protect it) who make it available to foreign agents, or to foreign
agents who obtain classified information unlawfully while present in the United States. Leaks of
classified information to the press have only rarely been punished as crimes, and 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. To the extent that the investigation implicates
any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may
carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions..."

Criminal Prohibitions on the Publication of Classified Defense Information
"The recent online publication of classified defense documents by the organization Wikileaks and
subsequent reporting by the New York Times and other news media have focused attention on
whether such publication violates U.S. criminal law. The Attorney General has reportedly stated
that the Justice Department and Department of Defense are investigating the circumstances to
determine whether any prosecutions will be undertaken in connection with the disclosure.

The report identifies some criminal statutes that may apply, but notes that these have been used
almost exclusively to prosecute individuals with access to classified information (and a
corresponding obligation to protect it) who make it available to foreign agents, or to foreign
agents who obtain classified information unlawfully while present in the United States. Leaks of
classified information to the press have only rarely been punished as crimes, and 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. To the extent that the investigation implicates
any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may
carry foreign policy implications related to the exercise of extraterritorial jurisdiction..."

Report of Investigation Regarding Allegations of Mishandling of Classified Documents by Attorney General Alberto Gonzales
"This report describes the investigation by the Department of Justice Office of the Inspector General (OIG) into allegations that Alberto Gonzales mishandled classified documents while serving as the Attorney General. The matter was referred to the OIG by Kenneth Wainstein, former Assistant Attorney General for the National Security Division, on August 10, 2007. The White House Counsel’s Office had initially notified the Department of Justice (Department) about the matter, and Wainstein, after consultation with other senior Department officials, referred the matter to the OIG for investigation...

In sum, our investigation concluded that Gonzales mishandled classified materials regarding two highly sensitive compartmented programs. We found that Gonzales took his classified handwritten notes home and stored them there for an indeterminate period of time. The notes contained operational aspects and other information about the NSA surveillance program that is classified at the TS/SCI level. By regulation, such material must be stored in a Sensitive Compartmented Storage Facility (SCIF). At the time he took these materials home, Gonzales did not have a SCIF at his house. Although Gonzales did have a safe at his residence at this time, we found that he did not use it to store the notes..."