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Category Archives: Secrecy: Leaks Prosecutions

On Journalists’ Claims for Immunity From Legal Accountability

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Monday, November 3, 2014 at 8:37 AM

I think I am unusual among former government officials in arguing that the publication of national security secrets can promote democracy and good government.  Such publications are often costly, sometimes very costly, to national security – more so than is generally realized.  But as I wrote in Power and Constraint, “it does not follow that . . .
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Snowden Correspondence with NSA OGC [UPDATED]

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Thursday, May 29, 2014 at 3:45 PM

The ODNI Tumblr site today posted April 2013 e-mail correspondence between Edward Snowden and the NSA’s Office of General Counsel—the only such correspondence NSA says it has found. UPDATE [9:30 p.m.]: Snowden has responded to the release this evening—in a Washington Post interview—and called the release “incomplete.”  See below the fold.     The reason for the release is obvious: debate . . .
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Schoenfeld on the Selective Prosecution of Leakers

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Wednesday, May 28, 2014 at 12:23 PM

Gabriel Schoenfeld, author of the indispensable Necessary Secrets, has a new essay in Hoover’s Emerging Threats series entitled “Secrecy, Leaks, and Selective Prosecution.”  He offers this description of the essay: Does it matter that low-level government officials are prosecuted and sent to prison when they leak classified information, yet high-ranking officials in the White House and . . .
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Why Kinsley is Wrong About the Connection Between Democracy and the Publication of National Security Secrets

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Wednesday, May 28, 2014 at 9:18 AM

Michael Kinsley, in his review of Glenn Greenwald’s book, made the following claims about leaks of national security secrets: The question is who decides.  It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a . . .
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ODNI Clarifies New Pre-Publication Review Policy

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Sunday, May 11, 2014 at 4:01 PM

On Friday I said that on a quick read, the Obama administration’s new pre-publication review policy seemed “overbroad to the point of practically unenforceable.”   Friday afternoon, as Marty Lederman noted, the Office of the Director of National Intelligence distributed a memorandum that sought to clarify that the new policy was being interpreted more broadly than . . .
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The Latest Obama Administration Anti-Leak Initiative

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Friday, May 9, 2014 at 5:28 AM

Charlie Savage reports: The Obama administration is clamping down on a technique that government officials have long used to join in public discussions of well-known but technically still-secret information: citing news reports based on unauthorized disclosures. A new pre-publication review policy for the Office of Director of National Intelligence says the agency’s current and former employees and . . .
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Exclusive: NSA Program Can Target Thoughts of Millions of Targets, Thousands of Americans

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Tuesday, April 1, 2014 at 12:01 AM

The National Security Agency has developed the capability to mine the thought patterns of millions of people simultaneously, collection that may involve thousands of Americans, according to the latest disclosure from former NSA contractor Edward Snowden. An NSA Powerpoint slide refers to the classified program, code-named “MINDPRISM,” as “The Ultimate in Upstream Collection.” A combination . . .
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Holding Leakers Accountable: Considering New Leaks Laws

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Tuesday, February 25, 2014 at 9:00 AM

Those who leak classified information violate their contracts, the public’s trust, and the law. As for those who publish the leaked information – it’s “complicated,” according to FBI Director James Comey. He was responding recently to House intelligence committee chairman Mike Rogers’ question whether reporters are guilty of crimes in obtaining or publishing classified information. . . .
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General Keith Alexander on the NSA Scandals

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Friday, October 25, 2013 at 7:19 PM

I haven’t watched this yet. Will publish thoughts on it after I have done so—if I have any. In the meantime, here are Josh Gerstein’s from Politico: The head of the embattled National Security Agency, Gen. Keith Alexander, is accusing journalists of “selling” his agency’s documents and is calling for an end to the steady stream of . . .
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Fourth Circuit: No Rehearing En Banc in U.S. v. Sterling

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Tuesday, October 15, 2013 at 6:58 PM

Here’s the Fourth Circuit’s order denying two petitions for rehearing en banc—-one by New York Times reporter James Risen, the other by former CIA Officer Jeffrey Sterling.    This past summer, a panel held, in a 2-1 vote, that the journalist had no First Amendment privilege enabling him to refuse to testify in the leak prosecution against Sterling. . . .
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Critical Thoughts on New Report on Obama Leak Crackdown

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Thursday, October 10, 2013 at 2:51 PM

Today the Committee to Protect Journalists published a very critical report on the Obama administration’s efforts to crack down on leakers and control the flow of secret information from government officials to the press.  “The administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration, . . .
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“Just Security” Launch Event Webcast

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Wednesday, September 25, 2013 at 4:00 PM

The official launch event for the new site Just Security is taking place at this hour with an event entitled, “When Reporting is a Crime: National Security and the Press After Snowden and Sterling.” The event is being webcast live. You can watch it here: Video streaming by Ustream

Former FBI Agent to Plead Guilty in AP Leaks Case

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Monday, September 23, 2013 at 5:55 PM

That’s the sum and substance of this Washington Post piece, which begins: A former FBI bomb technician who later worked as a contractor for the Bureau has agreed to plead guilty to disclosing national defense information about a disrupted terrorist plot to the Associated Press, according to the Justice Department. Donald John Sachtleben, 55, of Carmel, Ind., . . .
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A Critique of the Latest Snowden Disclosures

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Thursday, August 29, 2013 at 5:04 PM

The world now has extraordinary access to the details of how the United States operates and funds its intelligence agencies, courtesy of Edward Showden and the Washington Post.  This will lead to no good.  It makes friendly countries nervous about what we can do, and unfriendly countries happy about what we can’t do.  This kind . . .
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This Has To Hurt — The IC Budget Revealed

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Thursday, August 29, 2013 at 3:08 PM

For years, the Intelligence Community has fought hard against the disclosure of its budget.  Even the top line total was, for many decades, classified.  Now, thanks to Edward Snowden, the Washington Post has the 2013 budget proposal.  [Warning to readers with clearances -- the article is not classified, but links therein appear to be.] As . . .
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James Risen Petitions For Rehearing En Banc, Media File Amicus Brief in the Fourth Circuit

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Saturday, August 3, 2013 at 9:00 AM

Here’s the New York Times reporter’s petition for rehearing en banc in the case of United States v. Sterling.   It was filed yesterday. Readers will recall that last month a three-judge panel of the Fourth Circuit concluded, in a 2-1 decision, that Mr. Risen had no First Amendment privilege against testifying in criminal case.  The panel thus compelled him to be a government . . .
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A Quick Primer on Military Justice and The Manning Verdict

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Tuesday, July 30, 2013 at 4:42 PM

After hearing evidence in a contested bench trial, Army Colonel Denise Lind, a military trial judge, found Pfc. Bradley Manning guilty of most of the charges and specifications today in a military court room at Fort Meade, Maryland, in connection with his release of documents to Wikileaks.  Manning faces a maximum possible sentence of over 128 . . .
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Bradley Manning Verdict

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Tuesday, July 30, 2013 at 1:15 PM

From The Guardian’s live blog: Manning has been found not guilty of the most serious charge of “aiding the enemy”. However the private has been found guilty on five counts of violating the espionage act. [Update] Here is Charlie Savage of the New York Times.

CA4 Opinion in U.S. v. Sterling: No 1st Am, Common Law Journalist’s Privilege for James Risen

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Friday, July 19, 2013 at 3:01 PM

It’s a big news day in national security law for all kinds of reasons—one being today’s opinion from the Fourth Circuit in United States v. Sterling.   That, of course, is the prosecution against a former CIA officer under, among other things, Sections 793(d) and (3) of the Espionage Act.  In essence the government claims that . . .
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Justice Department Report on Review of News Media Policies

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Saturday, July 13, 2013 at 10:46 AM

Available here. This report is Attorney General Eric Holder’s response to President Obama’s order of a review of departmental policies with respect to the media. It announces several changes in policy, the first two of which seem the most significant: Second,