Secrecy & Leaks

"Any Unauthorized Disclosure"

By Wells Bennett
Thursday, July 12, 2012, 3:14 PM

There seem to be many things habeas counsel might dislike about the proposed Memorandum of Understanding that DOJ has asked David Remes to sign.  But like Ben, I’ll wait until I see the government’s response to David’s motion regarding the MOU before I form any views.    

In the meantime, though, here’s one current events-y detail that caught my eye.   Text from the draft MOU, emphasis supplied by yours truly:

g. Any unauthorized disclosure of classified information constitutes a violation of United States criminal laws.

That’s a bit overbroad.  In fact it is not always a crime to disclose classified information.  I reckon the statement reflects a simple oversight by a lawyer-under-pressure.  (Such things can happen during litigation, particularly when a filing deadline looms – as a few of my own more hurried filings might or might not reveal.)  In fact the draft MOU seems eventually to acknowledge the current law’s patchwork nature, on its final page. There, the MOU's signatories affirm their familiarity with various anti-leak statutes and other authorities – something that likely would be unnecessary if federal law straightforwardly criminalized all unauthorized leaks, period.    

Whatever the reasons behind it, the MOU’s language surely doesn’t help to clear up persistent confusion about unauthorized disclosures and criminal liability.   We thus fairly may add it to the now Olympus-sized mountain of reasons to revisit the Espionage Act and related statutes, or even to enact more comprehensive reform. 

Heck, it might even be a good idea to have a congressional hearing or three on those issues.  Maybe Steve could testify.