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Thread: Efing Wikileaks

  1. #21
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    Default Belated response to Cavguy post # 8

    The following is a good basic summary of the relevant law, which will be well-known to most regulars here.

    CRS RS21900
    Updated August 5, 2004
    The Protection of Classified Information: The Legal Framework
    Nathan Brooks, Legislative Attorney, American Law Division
    .....
    Criminal Penalties.

    Generally, federal law prescribes a prison sentence of no more than a year and/or a $1,000 fine for officers and employees of the federal government who knowingly remove classified material without the authority to do so and with the intention of keeping that material at an unauthorized location. [39]

    Stiffer penalties – fines of up to $10,000 and imprisonment for up to ten years – attach when a federal employee transmits classified information to anyone that employee has reason to believe is an agent of a foreign government. [40]

    Fines and a ten-year prison terms also await anyone, government employee or not, who publishes, makes available to an unauthorized person, or otherwise uses to the United States’ detriment classified information regarding the codes, cryptography, and communications intelligence utilized by the United States or a foreign government. [41]

    [39] 18 U.S.C. 1924. Agencies often require employees to sign non-disclosure agreements prior to obtaining access to classified information, the validity of which was upheld by the Supreme Court in Snepp v. United States, 444 U.S. 507 (1980).

    [40] 50 U.S.C. 783.

    [41] 18 U.S.C. 798. This provision is part of the Espionage Act (codified at 18 U.S.C. 792 - 799), which generally protects against the unauthorized transmission of a much broader category of “national defense” information, prescribing fines and a prison term of up to ten years.
    http://www.firstamendmentcenter.org/....security4.pdf

    ---------------------------------
    1. The mildest penalty (1 yr max) under 18 U.S.C. 1924 (note [39] in report) is clear as to the officer or employee. The statute is here.

    The issues become murkier as we go down the chain of transmission, which could involve a number of people before it reaches the Web or media outlets. The possibility of using a conspiracy charge against others in the chain becomes less likely the further removed from the original source.

    ----------------------------------
    2. The upgraded penalty (10 yr max) under 50 U.S.C. 783 (note [40] in report) was part of the Cold War Communist Control package. The relevant subpart is here.

    TITLE 50 > CHAPTER 23 > SUBCHAPTER I
    SUBCHAPTER I—CONTROL OF SUBVERSIVE ACTIVITIES
    781. Repealed.]
    782. Repealed.]
    783. Offenses
    784, 785. Repealed.]
    786, 787. Repealed.]
    788 to 795. Repealed.]
    796. Effect of subchapter on other criminal laws
    797. Penalty for violation of security regulations and orders
    798. Repealed.]
    Many sections have been repealed; but 783, 796 and 797 are still viable.

    The guts of the statute is "... to communicate in any manner or by any means, to any other person whom such officer or employee knows or has reason to believe to be an agent or representative of any foreign government, any information of a kind which shall have been classified ...."

    The limitation here is transmission to a foreign government agent or representative. So, if Cavguy transmits classified to JMM, this statute does not apply. Honest, I'm not an agent of the Finnish consulate.

    -------------------------------------------
    3. The more general statute (also 10 yr max in most cases; death or life in others) is the Espionage Act (note [41] in report), which goes back to WWI. The relevant subpart is here.

    TITLE 18 > PART I > CHAPTER 37
    CHAPTER 37—ESPIONAGE AND CENSORSHIP
    [ 791. Repealed.]
    792. Harboring or concealing persons
    793. Gathering, transmitting or losing defense information
    794. Gathering or delivering defense information to aid foreign government
    795. Photographing and sketching defense installations
    796. Use of aircraft for photographing defense installations
    797. Publication and sale of photographs of defense installations
    798. Disclosure of classified information
    798A. Temporary extension of section 794
    799. Violation of regulations of National Aeronautics and Space Administration
    Prosecutions can generally be brought under 793 and/or 794, with a number of specific crimes (photos, sketches, etc.) in other sections. 798 is not of general application to classified information - it applies to codes, etc.

    The usual problem in these cases is establishing a specific intent to injure national security.

    ----------------------------------------------------
    4. These specific charges (all three chapters could apply in a given case) can be combined with the general conspiracy statute, 18 USC 371. Conspiracy to commit offense or to defraud United States, which is here.

    For an example of multiple charges, see the proffer in the AIPAC case (the facts underlying Larry Franklin's guilty plea), which is here.

    Litigation under the Espionage Act gets complicated (e.g., the Rosenberg case), but more currently the slew of pleadings filed in the AIPAC case, which are here.

    -------------------------------------------------
    These statutes are badly in need of a complete revamping. Basically, we have the equivalent of a WWI tank to which parts have been added and subtracted in every subsequent armed conflict. Since each administration and Congress has its own take on the problem, a rational classified information policy seems unlikely.

    PS: Cavguy - the Pentagon Papers case could have been prosecuted successfully; except that prosecution led to some shady stuff which the Nixon administration did not want to disclose. Sort of a Mexican standoff.
    Last edited by jmm99; 12-24-2008 at 05:30 AM. Reason: add link

  2. #22
    Council Member 120mm's Avatar
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    Default

    Now, I've experienced exactly the opposite: I've built an un-classified briefing from open source materials, and then a few months later, saw my slides recycled into a classified briefing. Marked "Secret" and everything.

  3. #23
    Council Member jkm_101_fso's Avatar
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    Default Classified, allies, etc.

    One thing that annoyed the hell out of me when I was on a MiTT was "hiding" all of the mission details from the Iraqis. I understood why; the average jundi didn't need to be privy to the operational details, but we couldn't even show the IA leadership. Cell phones were outlawed on missions for the Iraqis, which was a good thing, but generally they had so little information anyway, it wouldn't have mattered. But this hindered their operational capability, because cell phone was their major form of communication at the time.

    I got in trouble once for showing the IA S-2 a falconview picture. It was almost professionally embarrassing to tell the IA BN staff, "well, I can't tell you where we are going, or when, but just know that we are picking up a bad guy". It basically FORCED the MiTT to lead all of the missions, which wasn't the intent. I know the IA leadership felt insulted. I felt that it affected our relationship with them. Even after all that we'd been through with the IA, they still believed that we didn't trust them, because of the little operational detail we could provide. After a while, we started to give the secret details to just the IA leadership (CDR, XO, S-3, main effort CO CDR). That way, if we were compromised on a mission, we'd at least know who talked.

    Since I haven't been to Iraq in a while (late 2006), things may have changed. Maybe the MiTTs and US BNs are allowed to show the IA classified information regarding targeting. I don't know. Maybe a question for some of you out there that have been there more recently.

    I think that over-classifying information (like falconview pictures) is a chronic problem and can cause credibility issues to arise between US advisors and our HNF counterparts. To have a truly effective relationship with HNF, we have to allow our advisors to at least confide in the HNF leadership at the Company level and higher. Otherwise, I think it can be detrimental to the HNF-US advisor relationship.

    I was always confused why I couldn't show falconview pics to the IA, but I saw many others brief CREW capabilities/recent INTSUM in front of interpreters during convoy briefings.
    Sir, what the hell are we doing?

  4. #24
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    What's to classify? They know the freqs they are transmitting on. The second time one didn't go off, a quick sniff with a spectrum analyzer would show that, sure enough, that freq was saturated after they signaled.

    We are just damn lucky they haven't discovered the wonders of the $4.00 DSP chip yet. You wouldn't want to be driving around with one of those jammers on if they did. They wouldn't even need a spotter. All they would have to do is plant a bomb that waits for the loud thing to drive by. They already know how to turn the jammer on.

    All of this has to be known stuff. It's very basic.

  5. #25
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    Default Classification stuff

    It is interesting that the law refers to defense information, not classified information. Is that because the documents authorizing classification are all Executive Orders of the President, not public law (but with the force of law until overridden by a new EO or legislation)?

    JMM, you say that the govt could have won on the Pentagon Papers case. I presume you mean the prosecution of Ellsburg - had they not engaged in gross misconduct, etc. I believe you are right but I would raise the possible exception of fact: The Pentagon Papers contained no information "the improper release of which would damage [seriously or otherwise] the security of the United States" - the operative wording of the classification EO. My statement is an educated opinion of a current intel analyst on active duty at the time (1971) with access to all kinds of classified info at the time. I suggest that Ellsburg could have domostrated that the Papers had been improperly classified and, therefore, there was no crime. (The Problem of Over/Improper Classification.)

    Cheers

    JohnT

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