The Washington Post has a problem. Last November, it published classified national-defense information. The disclosures, in a series of articles by Dana Priest, involved the secret assistance several overseas allies–at great risk to themselves–are alleged to have provided to our country in detaining high-level al Qaeda prisoners. These reports were manifestly damaging to the U.S. war effort against the terror network promising to add, geometrically, to the casualty count it racked up on 9/11. Necessarily, the discord-sowing revelations also lent aid and comfort not only to the enemy, but to several nations opposed to U.S. antiterrorism policies, to say nothing of those abetting the terrorists.
#ad#Now it has emerged that the government is taking serious steps to investigate these and other national-security leaks–leaks of a dimension that exposes as a comparative trifle the disclosure of Valerie Plame Wilson’s affiliation with the CIA. The latter leak, though it appears to have been inadvertent and certainly caused no damage to the war effort or public safety, was nonetheless the subject of indignant demands by the Post and the rest of organized journalism for a criminal investigation. Thus, recent developments in the ongoing probe of CIA leaks have once again brought to the fore questions of media complicity in damaging disclosures.
While the Washington Post is no stranger to the mainstream media’s anti-conservative, anti-national-security bent, it would be silly to deny that paper can be, and often is, an honest broker. But not where the Post itself is concerned. Beset by intense scrutiny and no small amount of criticism, the paper’s response has been to defend itself, with neither inhibition nor much pretense at objectivity. The results have included an audacious editorial defense of classified leaks and endless repetition in news stories of the not-so-coincidental fact that organized journalism has seen fit to honor Priest’s secret-prisons story with a Pulitzer Prize–an observation now so rote it rivals the media’s election-year mantra that Senator John Kerry served in Vietnam.
All that, perhaps, is to be expected. What ought not be tolerated, though, is the latest tack: self-interested misreporting. The Post and Priest are now covering their very exposed flanks by inaccurately conveying to their readership, in what passes for news features, the contours of classified information law.
“LITTLE IS CLEAR”
Exhibit A appears in last Friday’s report, wishfully entitled “Little is Clear in Laws on Leaks.” Reporter Dan Eggen’s story is clever. Mentioned explicitly are Mary O. McCarthy (the CIA officer fired in late April for leaking classified information), Porter Goss (the CIA director pushing the leaks investigation), and various others. Guess who goes unmentioned? Why, none other than Dana Priest–the writer who got the ball rolling. As if she were of no significance in the equation (just a hard-working journalist doing her job, one supposes), she is referred to only as among the “[r]eporters” who–had you heard?–“were awarded Pulitzer Prizes this month.”
More saliently, there’s the not-at-all-subtle theme served up in defense of the Post’s unnamed but ubiquitous star reporter: to wit, that the laws covering unauthorized revelations of classified information are too abstruse for you benighted readers to grasp, but, trust us, they don’t really cover the subject matter at issue here … er, except to the extent they literally cover precisely that subject matter, in which case you must simply consider them “unconstitutionally vague.” As Eggen puts it:
No statute in the U.S. criminal code covers all unauthorized disclosures of classified information[.] … The Intelligence Identities Protection Act outlaws deliberate identification of covert agents; other laws focus on electronic communications, codes, atomic secrets and other sensitive data. … The pivotal statute is the Espionage Act of 1917, which was aimed at traditional foreign spies when written but, according to the government, is broad enough to encompass a much wider array of situations. The law outlaws unauthorized disclosure or receipt of a wide range of information “relating to the national defense” and is not explicitly limited to classified data. Many legal experts and defense lawyers argue that the law is so expansive it may be unconstitutional and, said Syracuse University law professor William C. Banks, “shot full of holes.”
Sure. Except–as the Post notes with evident chagrin–that Samuel Morison (a naval intelligence analyst) was successfully prosecuted in the 1980s under this purportedly unfair, unclear, unsavory law which actually says, quite straightforwardly, that secrets safeguarded to promote the security of Americans against hostile outsiders shouldn’t be revealed.
Meanwhile, Priest is reemerging. After a few days of silence she has come out swinging in an interview with the sympathetic trade publication, Editor & Publisher. (By the way, had you heard she won the Pulitzer Prize? E&P finally gets to that detail in … the first sentence of the story.) In response to conservative commentator and former Cabinet official Bill Bennett’s vigorous criticism of her disclosures, she asserts (italics mine):
Bennett either doesn’t understand the law or is purposefully distorting it. He keeps saying that it is illegal to publish secrets. It is not. There is a category of secrets that is illegal to publish–names of covert operatives, certain signal intelligence and nuclear secrets–but even with these, prosecution is possible only under certain circumstances.
This, again, is the Post’s “the leak laws don’t cover our leak” party line. Indeed, Priest here is just parroting the portrayal of classified information law offered by her colleague, Walter Pincus, last September, when House Republicans were becoming agitated over CIA leaks. As Pincus put it (again, my italics):
Federal law makes it a crime to disclose certain types of classified information such as nuclear secrets, data about intercepted information or codes, or the identities of covert case officers or agents working for the United States. The espionage statutes bar providing classified information to foreigners with intent to harm the United States.… But as Attorney General John D. Ashcroft told Congress in 2002, “There is no single statute that provides criminal penalties for all types of unauthorized disclosures of classified information.”
So here’s what the Post wants you to believe: There are laws that target specific kinds of classified disclosures, but our leak about al Qaeda detainees is not among those; then there’s this expansive Espionage Act, but even the government admits it doesn’t cover all classified information; therefore, we must be in the clear.
Interestingly, this reporting never tells us what the germane provision of the Espionage Act actually says–something that would resemble objectivity and arm readers with the means to form an informed view, once thought to be the role of the press in a functioning democracy.
ACTUALLY, MUCH IS CLEAR
Here, then, is what the relevant provision of the Espionage Act, now codified at Section 793(e) of Title 18, U.S. Code, says (highlighting is mine):
Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it [is guilty of a crime].
Several things should become immediately apparent. First, Section 793(e) targets people just like Priest: those who have “unauthorized possession” of classified information–whether because it has been leaked to them by a government official or because they have otherwise managed to obtain it–and have passed it along to others “not entitled to receive it.
Second, Priest’s aforementioned depiction of classified information law is flatly wrong: Federal law does not proscribe only leaking the identities of covert agents, signals intelligence, and nuclear secrets. Also wrong is Pincus, who conceded that law’s coverage was broader than Priest’s cribbed description, but misleadingly claimed this extra coverage was limited to “providing classified information to foreigners with intent to harm the United States.” Instead, Section 793(e) very clearly prohibits the disclosure of “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation[.]”
Clearly, the information has to relate to the national defense–that is, things like Agriculture-department statistics almost certainly won’t do, even if someone in government has managed to get them classified. But it is not required that the information be “provid[ed] … to foreigners.” To the contrary, any communication of defense information to someone not entitled to have it suffices (although, it bears noting that when the Washington Post publishes something, foreigners do get it, as does everyone else). Nor, contrary to Pincus’s framing, is it necessary that there be an “intent to harm the United States.” The leaker merely has to have “reason to believe” that the U.S. could be harmed–and even without that, the law could apply if the leaker has reason to believe another nation could derive an advantage from the disclosure.
Third, significantly, Congress used the word “any” to describe, among other things, the “information related to the national defense” it was addressing. It is, quite logically, a guideline in construing statutes that when Congress says any, it intends its law to have the broadest possible coverage.
Of course, it is common sense that details about holding enemy prisoners should be thought to constitute national defense information. Here, however, we needn’t speculate. On the eve of America’s entry into World War II, the Supreme Court ruled in the Gorin case (1941) that “national defense” was a “a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.” Moreover, in the modern high court’s 2004 Hamdi decision, it expressly held that the detention of enemy combatants is a core component of a principal national defense mission, war-fighting. Thus, it there should be little dispute here that Priest’s stories involved national defense information.
Neither can there have been the slightest doubt that a disclosure of such information, in the middle of a war against al Qaeda, portended both damage to the U.S. and benefit for nations opposed to American interests (and, again, bear in mind, you don’t need to show both–either will do for the law to apply). This is a grave matter. Let’s leave aside the rudimentary observation that the disclosure necessarily risked whatever intelligence stream has resulted from this detention strategy. American national security, especially given our sparse intelligence capabilities in many key parts of the world, is dependent on the cooperation of foreign governments and their intelligence services.
Priest’s revelations have placed cooperating countries in peril for helping us–increasing the degree to which they are al Qaeda terror targets and exposing them to immense criticism by countries opposed to actions taken in America’s self-defense, such as treating captured terrorists as enemy combatants rather than criminal defendants. The leak creates a powerful incentive for foreign-intelligence services to withhold crucial information from the United States–information on which hinges our capacity to protect American lives.
IS PUBLISHING THE SAME AS DISCLOSING?
But is Priest’s defense more subtle than what I’ve suggested? While Eggen and Pincus talked about the disclosure of classified information, Priest referred to circumstances in which it is illegal to publish such information. She also referred to the statute dealing with signals intelligence, Section 798 (of Title 18). Unlike Section 793(e) (the statute we’ve been reviewing), Section 798 specifically criminalizes the act of publish[ing]. So, it makes sense to ask, is Priest contending that publishing is a term of art that refers narrowly to the media, and, thus, that if Congress intended to capture media leaks in Section 793(e), it would have used the word publish , just as it did in Section 798?
Dana Priest is very bright, and it would make sense if is where she’s coming from, because it is no frivolous contention. Indeed, in the landmark 1971 Pentagon Papers case, it was the subject of spirited debate in the competing opinions of Justices William O. Douglas and Byron White–the former convinced that the absence of the word “publish” in Section793(e) indicated that Congress intended to exclude the press from coverage, the latter drawing the opposite conclusion. Ultimately, though, I believe the contention fails.
First, it is undermined by the two other leak laws she mentioned: those involving covert-agent identities (Section421 of Title 50) and nuclear secrets (Section 2274 of Title 42), which became prominent in, respectively, the Plame and Wen Ho Lee controversies. Though Priest concedes that the publishing of such leaks can be criminal, neither of the two applicable statutes mentions the word publish. Like Section 793(e), they use other words to convey the concept of disclosing the nation’s secrets.
Second, there is the policy illogic involved. When a newspaper like the Washington Post reveals a fact by publishing it, such a disclosure is instantly disseminated globally. That is, it is more likely to come to the attention of those who would harm the U.S. (or illegally benefit from the leak) than other methods of leaking. It would be absurd to interpret Section 793(e) as criminalizing the lesser harms but not reaching the more severe one.
Finally, and fatal to any argument that journalists and their journals are special pleaders, is the word publish itself, considered against the background of Section 793’s clarity and breadth. Black’s Law Dictionary (West Publishing, 1979 ed., at p. 1109) defines publish very broadly: “To make public; to circulate; to make known to people in general…. To issue; to put into circulation. … An advising of the public or making known of something to the public for a purpose.”(Citation omitted). This fits nicely within the Section 793(e) framework. The statute proscribes both communicating and transmitting national defense information to any person. To publish, patently, is to communicate or transmit information to others.
The only thing left under Section 793(e) is the question whether Priest acted willfully. When this term is used in a criminal statute to define the mens rea (i.e., the state of mind the government is required to prove), it means the person must be shown to have acted with bad purpose to do something she generally understood was forbidden by law.
People (and in particular, smart people) are generally deemed to intend the natural, easily foreseeable consequences of the things the do. Priest, who is quite familiar with the intelligence community and intelligence information, had to know she was dealing with classified matters. (Indeed, her defense of herself in interview segment excerpted above is not that she was unaware she was dealing with classified information. To the contrary, it is the–inaccurate–claim that detainee arrangements are not within the categories of classified information whose leaking is prohibited by federal law.) She also had to know how damaging her revelation would be–obviously, that’s why it was such a sensational story (which, you may have heard, won her a Pulitzer Prize).
In any event, none of us is a mind reader, and that’s a big part of why we have juries. When someone has committed all the acts necessary to violate a statute and her only defense is that she did not act with the requisite criminal intent, that is classically a case in which the government files charges and lets a jury decide. To put it mildly, an intelligent person whose claim is that she did not really intend something the occurrence of which was certain to flow from her actions has a very tough row to hoe.
OBJECTIVELY, WHAT DOES IT ALL MEAN?
To be sure, none of this means Priest is guilty of a crime. We don’t know what evidence the government has collected in its investigation, and we don’t know how Priest learned what she revealed in her story. She has not been accused of any wrongdoing, and if she ever were, she would be presumed innocent unless and until the government could prove its case in court. Nor can it be denied that prosecuting a journalist would be fraught with weighty practical and constitutional considerations regarding the media’s role in our democracy. Those considerations may well be outweighed here–the public has no general right to know national defense information and cannot be protected unless such information is kept confidential. But those considerations surely must be thought through seriously. The government should stay its hand if its evidence is equivocal.
Moreover, the main aim of a criminal investigation should always be to bring the most culpable actors to justice. Ina leak case, the most culpable actors are the government officials who betray their oaths and compromise sensitive information. In virtually any conceivable instance, far preferable to prosecuting a reporter would be to leverage potential liability to win the reporter’s cooperation in identifying the officials responsible for the leak.
All that aside, though, it is disingenuous for the Post and its agents, including Dana Priest herself, to suggest to readers that the pertinent law does not speak directly to what they chose to publish about secret prisons, or that that law is unclear and uncertain.
It’s not. And it appears to fit to a tee.
— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.