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Can NYT Be Prosecuted for Publishing Classified Info?

Scott Johnson has an extensive analysis of the laws applicable in the NSA surveillance matter. He examines 18 U.S.C. § 798. It is entitled “Disclosure of classified information” and falls under Chapter 37 “ESPIONAGE AND CENSORSHIP.” That the leakers violated the law here is rather obvious and not worthy of much discussion.

Of far more interest is this:

Assuming that the terms of the statute apply to the leaks involved in the NSA story, has the Times itself violated the statute and committed a crime? The answer is clearly affirmative. The statute makes knowing and willful “publication” of the proscribed information a crime. Moreover, under the basic federal aiding and abetting statute — 18 U.S.C. § 2 — in willfully helping the leakers publish their disclosures, the Times is as culpable as they are and punishable as a principal.

My understanding had been that the only people who could be held liable for revealing classified information were those who had a security clearance and had thus promised not to reveal it. I can find no such limitation in the statute, however.

Regardless, though, my understanding was that the Pentagon Papers case had settled this in the NYT’s favor. Johnson disagrees:

Which raises the question: Does the First Amendment afford the Times immunity from criminal liability for its conduct? In New York Times Co. v. United States, 403 U.S. 713 (1971)(“the Pentagon Papers case”), the Supreme Court held that it was presumptively unconstitutional for the government to restrain the publication of classified information. In separate opinions concurring with the order allowing the Times to continue publication of its Pentagon Papers stories, however, a majority of the justices clearly contemplated that the Times could be held responsible for any violation of the law involved in publishing the stories. For a scrupulous consideration of the Pentagon Papers case in this context, see Harvey Silverglate’s Boston Phoenix article: “The Gray Lady in shadow.”

Indeed, in their concurring opinions, Justices Douglas and White cited and discussed 18 U.S.C. § 798 as the prototype of a law that could be enforced against a newspaper following publication of information falling within the ambit of the statute. Justice White noted, for example:

    The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

Fascinating. My reading of the case had always emphasized the “no prior restraint” rule, to be sure, but I had always presumed that the right to publish the information came without strings.

While the Pentagon Papers case is still good law, however, it is not the last word. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that the First Amendment protected the publication of lawfully obtained information that was itself obtained illegally. The Court held that federal law making it a crime to intercept and disseminate telephone conversations cannot constitutionally be applied to the media when they report on matters of public concern.

Does Bartnicki suggest that the Times is constitutionally immune from prosecution under section 798? I think not; the case is readily distinguishable. The Court’s fundamental factual predicates in Bartnicki are that the media defendants played no part in the underlying illegal conduct and their access to the information was obtained lawfully. In the case of the NSA leaks, however, the disclosures to the Times were themselves illegal; it is the fact that the Times is an “unauthorized person” under section 798 that makes the disclosures to the Times illegal.

I had never heard of Bartnicki previously. Based just on Johnson’s description of it, however, I would think the NYT would be safe. Yes, in receiving illegal leaks, Risen was part and parcel of the crime. However, it is not his crime. He has every right to talk to NSA officials and write stories about what they tell him. Indeed, given that Risen does not hold a security clearance, he would have no real way of knowing what information his sources gave him was even classified.

This may well be moot, anyway, since he and co-blogger John Hinderaker are almost certainly correct in guessing that the Administration would be exceedingly reluctant to bring charges against the most powerful newspaper in the land.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. bryan says:

    It is a common misconception that papers can’t be prosecuted, but the Pentagon Papers case was about prior restraint, not punishment ex post facto.

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  2. Watergate in Reverse?

    Could it be that we are about to see a president bring down a paper — and not just any paper, but the Old Gray Lady herself? Probably not, but when Watergate first started it wasn’t that big of a deal either

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  3. legion says:

    I think your interpretation is closer to ‘right’ than Johnson’s is, James. For example,

    Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations.

    While it might be a crime to print the results of intel operations, I’ve seen nothing in any of the discussed laws that makes it a crime to report the _existence_ of said operations.

    That said, the Pentagon Papers case did focus on prior restraint – it basically confirmed that simply _being_ classified did not necessarily mean that releasing the info was damaging… despite the fact that that’s part of the _definition_ of the levels of classification, classification decisions are made by people, who make mistakes. Basically, the burden of proof is on the gov’t to show damage before the court would seriously consider stopping the presses. So the PP case is not iron-clad protection for the media, but neither is it irrelevant.

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  4. Herb says:

    The prosecution of the NYT is definitely needed. For to long now, the various newspapers and magazines have run amuk with their discloser of information that never should have been published. In the NSA case, the NYT, “knowingly and wantonly” disclosed vital classified information that directly affects the securty of the entire nation. That is “Criminal” and the NYT, as well as other publishers need to be “put into thier place” and prosecuted just like any other criminal. The entire nation would be better off without this criminal rag and those who seek only to improve their own financial state.

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  5. DL says:

    What is needed is a serious discussion in congress about possible loss of second amendment protection -just enough to scare them into going straight.

    On the other hand -the republicans aren’t principled enough to vote on anything of controversy till they check their poll numbers for the next election -I’d give my right arm to see a bunch thrown out and replaced with people of character and conviction -Zell Miller is my role model for politicians -John McCain is as bold but without principle.

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  6. Herb says:

    Thunderbird:

    Why wait till dawn?

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  7. Bithead says:

    It strikes me as amusing that in a world where Apple Computer can sue bloggers into silence for talking about a product that Apple never released to the general public, this question is even debated.

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  8. bryan says:

    It strikes me as amusing that in a world where Apple Computer can sue bloggers into silence for talking about a product that Apple never released to the general public, this question is even debated.

    Why is this amusing? Press coverage of political issues is far removed legally from publication of business trade secrets. Like it or not, it’s an apples and oranges comparison.

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