The Corner

Chalabi & Classified Info

Saw Rich’s Corner post. I should note preliminarily that if I were a prosecutor on the case I would be very skeptical about what’s been reported because the story sounds fishy to me. But on the straight legal question Rich asked, I think Bob Baer is wrong.

The crime of disclosure of classified information is defined by Title 18 U.S. Code Section 798. In pertinent part, it says “Whoever knowingly and willfully communicates, furnishes, transmits or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information–(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or . . . (3) concerning the communication intelligence activities of the United States or any foreign government . . . [s]hall be fined under this title or imprisoned not more than ten years, or both.” (Italics mine.)

As thus defined, being an American citizen is not an element of the offense. That makes some sense–this crime is very close to treason, and if committed by an American could in a variety of factual scenarios be treason, so requiring American citizenship might be duplicative of treason.

Anyway, the crime can be committed by anyone (i.e., “whoever”) committing the actionable conduct. The statute says the person must act both “knowingly” and “willfully”–which essentially means he must (a) be aware that the information is sensitive information about ciphers, codes, communication intelligence, etc., and (b) that he must do the proscribed act on purpose and aware of the wrongfulness of his action (i.e., not by mistake). The statute broadly defines a range of proscribed activity, and giving the sensitive information to the Iranian Intelligence Service knowing it is to the benefit of Iran and the detriment of the U.S. easily fits within the parameters.

Under Title 18 U.S. Code Section 3239, the trial venue for a violation of Section 798 committed outside U.S. territory would either be the District of Columbia or “any other district authorized by law.” Generally, this means either D.C. or the first district in which the defendant touches ground upon entering the U.S. (E.g., the terrorists who were extradited for trial here in the 1990s were usually flown into the Westchester county airport–Westchester is in the Southern District of New York, so Manhattan was the proper venue for trial).

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