Congress Grapples with Classification Issues

A bill introduced in the House of Representatives by Rep. Bennie Thompson (D-MS) would direct the President to reduce the amount of classified information by 10%. It is one of several new congressional initiatives seeking to rectify perceived defects in the national security classification system.

Most prominently, the Senate Intelligence Committee is engaged in an ongoing dispute with the Administration over declassification of the Committee’s report on the CIA’s post-9/11 detention and interrogation program.

Sen. Dianne Feinstein, the Committee chair, said the Administration’s proposed redactions to the executive summary of the report were unacceptably broad.

“I have concluded the redactions eliminate or obscure key facts that support the report’s findings and conclusions,” she said on August 5. “Until these redactions are addressed to the committee’s satisfaction, the report will not be made public.”

With this contentious experience fresh in mind, one might have expected the Senate Intelligence Committee to have acquired special insight into the failings of the existing classification system and to have devised some well-considered remedial measures to address them.

But that does not appear to be the case.

In its new intelligence authorization bill for Fiscal Year 2015 (S. 2741, sec. 311), the Committee weakly requires the Director of National Intelligence to prepare a report “describing proposals to improve the declassification process throughout the intelligence community.”

Under current circumstances, this proposed reporting requirement seems like a failure of imagination and leadership, and probably a waste of everyone’s time. Perhaps it is just a placeholder for something more ambitious that is still to come.

By contrast, the bill introduced by Rep. Thompson in the House and by Sen. Ron Wyden in the Senate is prescriptive and solution-oriented in its treatment of the issue.

Among its several provisions, the new bill (HR 5240) would require the President “to establish a goal for the reduction of classified information by not less than 10 percent within five years through improved declassification and improved original and derivative classification decision-making,” according to a Fact Sheet on the bill, dubbed the CORRECT Act. (It is unclear how the 10 percent reduction in information would be measured, whether in pages or bytes or number of classification decisions or by some other standard.)

The Thompson/Wyden bill would also bolster and expand the Public Interest Declassification Board, assigning it the responsibility to evaluate the continuing validity of all current classification guidance. Though this provision may seem innocuous, it is a clear challenge to the autonomy that is currently enjoyed by executive branch agencies regarding what is to be classified. As such, it represents the kernel of a solution to the problem of overclassification.

The bill would further direct the Privacy and Civil Liberties Oversight Board to establish standards for the emerging insider threat program, and it would decisively break from current practice by authorizing the Merit System Protection Board to review agency denials or revocations of security clearances.

However, the deliberative effort that has gone into preparing the bill is not going to yield any near-term reward. In all likelihood, Rep. Thompson’s CORRECT Act will not even receive a hearing in the remainder of this expiring Congress.

Another modest but potentially useful legislative effort is an amendment to be introduced by Sen. Jeanne Shaheen that would enhance the authority and capacity of the National Declassification Center.

If the Senate Intelligence Committee wants a report on “improving declassification,” as the new intelligence authorization bill requires, then there is already a report with that very title that was prepared by the Public Interest Declassification Board in December 2007.

Several of the report’s recommendations have still not been acted on. Among them is a proposal that “formal procedures should be established for the declassification review of classified [congressional] committee reports and hearing transcripts.”

Because such records are produced and held by congressional committees, such as the Senate Intelligence Committee, they are not eligible for declassification unless and until the originating committee takes the initiative to have them reviewed and declassified. Yet this is rarely done, despite the importance of these materials.

“Frequently, closed sessions of congressional committees are the only occasion when executive branch policy in the national security area is explained, challenged (by members), and defended by administration representatives. The exchanges at these hearings, as well as the views of Congress (elaborated in classified committee reports), often affect the policy choices of the executive branch. Yet, because the records of the committees involved are classified and never subjected to declassification review, the public and historians are largely unaware of their existence,” the PIDB report said.

“Despite their historical significance, classified records created by the Congress are reviewed for declassification only on a hit-or-miss and relatively limited basis. As a result, the public is denied a valuable source of historically significant information,” the report said.

So, for example, not a single classified annex to the annual intelligence authorization bills produced by the congressional intelligence committees has ever been declassified.

A Look Behind President Clinton’s Veto of an Anti-Leak Bill

In 2000, both houses of Congress passed legislation that would have made any leak of classified information a felony.

The provision, contained in the FY2001 intelligence authorization act, was designed “to ensure the prosecution of all unauthorized disclosures of classified information.” said Sen. Richard Shelby, the primary sponsor of the provision, at the time.

While some unauthorized disclosures of classified information were already prohibited by statute (including the Espionage Act), others have not been specifically outlawed, or else their legal status is uncertain, requiring strenuous efforts by prosecutors to fit a prohibition to the presumed offense. The Shelby provision would have removed all ambiguities and would have simply criminalized all leaks of classified information.

But to the astonishment of nearly everyone, and to the relief of many, President Clinton vetoed the 2001 intelligence authorization bill because of the anti-leak measure.

“Although well intentioned, that provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy,” he wrote in his November 4, 2000 veto message.

But that unexpected outcome almost didn’t come to pass.

Instead of a veto, White House lawyers had prepared draft signing statements for President Clinton in which he would have approved the bill, while expressing some reservations about its potential impact.

The draft signing statements were released by the Clinton Presidential Library last week. The newly disclosed presidential documents were first noted by Josh Gerstein in Politico on July 18.

“I strongly believe… that this new provision should not be applied in a manner that could chill legitimate activity or transform questions of judgment into criminal referrals,” according to the draft signing statement for President Clinton that was ultimately set aside in favor of a veto of the bill.

The worst effects of the anti-leak measure could be avoided by the limited, judicious use of prosecutorial authority, White House lawyers initially suggested.

“It is extraordinarily important, therefore, that the Justice Department use its prosecutorial discretion wisely when apparently unauthorized disclosures are referred to it for possible prosecution under this new provision,” the draft signing statement said.

Prosecutorial discretion often seems to be in short supply, however, and in all likelihood it would not have been an effective bulwark against abuse of the vetoed anti-leak provision, had it passed into law.

An apparent excess of zeal in the prosecution of classified document (mis-)handling was highlighted just last week in the case of Navy contract linguist James F. Hitselberger, who had been charged with multiple felonies in connection with the unlawful retention of national defense information. Earlier this year, Mr. Hitselberger pleaded guilty to a single misdemeanor. Last Thursday, he was sentenced to time already served (in pre-trial custody) and a fine of $250.00.

Senate Bill Requires Report on “All” NSA Bulk Collection

Updated below

The National Security Agency would be required to prepare an unclassified report on “all NSA bulk collection activities,” the Senate Appropriations Committee directed in its report on the Fiscal Year 2015 Department of Defense Appropriations bill, published yesterday.

The Committee told the NSA to prepare a report “describing all NSA bulk collection activities, including when such activities began, the cost of such activities, what types of records have been collected in the past, what types of records are currently being collected, and any plans for future bulk collection.”

Such a report would be expected to clarify whether NSA bulk collection extends beyond the acknowledged telephone metadata program in Section 215 of the USA Patriot Act.

The required report is to be “unclassified to the greatest extent possible,” the Senate Committee said.

In the reporting requirements that it imposed on NSA, the Senate Appropriations Committee notably went beyond what was required by the Senate or House Intelligence Committees.

The Appropriations Committee also directed NSA to submit additional reports on the total number of records acquired and reviewed by NSA in its bulk telephone metadata program over the past five years, and an estimate of the number of records of U.S. persons that have been acquired and reviewed in the telephone metadata program.

Another unclassified report is required to provide “a list of terrorist activities that were disrupted, in whole or in part, with the aid of information obtained through NSA’s telephone metadata program.”

A January 2014 report of the Privacy and Civil Liberties Oversight Board found that the Section 215 telephone metadata program had “minimal value in protecting the nation from terrorism.”

“We are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack,” the PCLOB report said.

In contrast to the Section 215 bulk telephone metadata program, the PCLOB said in a report this month that the Section 702 program to collect the communications of targeted non-U.S. persons abroad “has proven valuable in a number of ways to the government’s efforts to combat terrorism,” and that it had enabled the government to “discover previously unknown terrorist operatives and disrupt specific terrorist plots.”

The Board cautioned, however, that the 702 program “may allow a substantial amount of private information about U.S. persons to be acquired by the government, examined by its personnel, and used in ways that may have a negative impact on those persons.”

An estimate of the amount of such U.S. person information collected under the Section 702 program was not specifically required by the Senate Appropriations Committee.

Update: Identical reporting language was included by the Senate Appropriations Committee last year in its report on the FY2014 Defense Appropriations bill (h/t @byersalex), yet the required NSA reports were not produced.

At Emptywheel, Marcy Wheeler questions the utility of the proposed reports, particularly since the Senate Committee language lacks a clear, unambiguous definition of “bulk collection.”

House Intelligence Report: No Second Thoughts

Of the many lessons to be learned from the unauthorized disclosures of classified intelligence information by Edward Snowden, one of them is that the congressional intelligence oversight process did not function properly in the years leading up to those disclosures.

It seems indisputable that the intelligence oversight committees did not accurately comprehend or effectively represent the full spectrum of public concern over intelligence surveillance practices. Had they done so, current efforts to limit or revise those practices would have been unnecessary.

But in its new report on the intelligence authorization act for Fiscal Years 2014 and 2015, the House Permanent Select Committee on Intelligence (HPSCI) does not pause for any kind of reflection, let alone self-criticism. It does not inquire why the intelligence oversight process has seemed inhospitable to the kinds of public concerns that emerged in Snowden’s wake. It does not consider whether the Committee’s own practices need to be altered to provide for greater public engagement. It does not even mention Snowden’s name, referring instead to “a former NSA contractor.”

Rather, the new intelligence bill’s primary response to the Snowden episode is to increase the rigor and intensity of current personnel security practices.

“Over the past year, massive unauthorized disclosures of classified intelligence information caused immense damage to our national security. The Intelligence Community might have been able to prevent those unauthorized disclosures if it continuously evaluated the backgrounds of employees and contractors,” the House Committee report asserted.

“Continuous evaluation allows the IC to take advantage of lawfully available government and public information to detect warning signals that the current system of five-year periodic reinvestigation [for renewal of security clearances] misses. That information may include: foreign travel; reports of foreign contacts; financial disclosure information; checks of criminal, commercial marketing, and credit databases; and other appropriate publicly available information,” the report said.

But the Committee did not explain how closer scrutiny of any of these categories of information could have prevented the Snowden disclosures. If Snowden is neither a spy nor in search of financial gain, then none of these factors would have assisted in anticipating or preventing his actions, and an altogether different type of response would be needed.  But the Committee was not prepared to consider that possibility.

The new House Committee report includes several other noteworthy features:

*  “The Committee’s concerns about insufficient intelligence funding… are exacerbated by the great expense necessary to remediate the damage from illegal disclosures of classified information.”

*  The House bill would require declassification review of documents collected in the May 2011 Abbottabad, Pakistan mission that killed Osama bin Laden.

*  The bill would elevate the Inspector General of the National Security Agency, making the position subject to presidential appointment and Senate confirmation.

*  The bill would require the President to establish a written plan for how to respond to an unauthorized disclosure of a covert action program.

*  The bill would require the Director of National Intelligence to submit an annual report to Congress on violations of law or executive order by Intelligence Community personnel.

 

FISA Annual Report Recedes in Importance

For many years, the Justice Department’s annual report to Congress on the use of the Foreign Intelligence Surveillance Act was a primary source of public information on intelligence surveillance activity and on the workings of the Foreign Intelligence Surveillance Court. Today, that is less true than ever before.

The latest annual report, released by DOJ yesterday, indicated that in 2013 the Government submitted 1,655 applications for electronic surveillance, physical search or both. Of the 1,588 applications that included electronic surveillance, none were denied by the Court. But that hardly provides an accurate sense of the scope or the scale of intelligence surveillance activity.

The significance of this information, and other statistical data on access to “business records” and the use of national security letters, has receded in the wake of the far more substantial disclosures of the post-Snowden era. For example, we now know that the bland term “business records” extends in principle to everyone’s telephone call records.

In truth, the annual DOJ reports to Congress were never very informative, and they never provided useful data that could inform public policy in a practical way. They represented a facade of transparency with little or no real content. Today, they are practically irrelevant.

More informative and altogether more important is the new website of the Foreign Intelligence Surveillance Court, which has recently been revamped.

Did CIA Violate the Constitution’s Speech or Debate Clause?

The Central Intelligence Agency may have violated the Speech or Debate clause of the U.S. Constitution by performing an unauthorized search of Senate Intelligence Committee computers, according to an analysis by the Congressional Research Service.

The Speech or Debate clause (in Article I, Section 6, Clause 1 of the Constitution) generally immunizes members of Congress from liability for actions performed in the course of their legislative duties.

But it also provides privileged protection for congressional documents against compulsory or involuntary disclosure. CIA may have unconstitutionally violated that privilege.

As detailed by Sen. Dianne Feinstein in a March 11 floor statement, the CIA carried out a search of Committee computers without notice or consent in an attempt to determine whether or how the Committee had obtained unauthorized access to a particular record concerning the CIA’s post-9/11 prisoner interrogation program.

“The search involved not only a search of documents provided by the committee to the CIA but also a search of the stand-alone and walled-off committee network drive containing the committee’s own internal work product and communications,” Sen. Feinstein said. The search took place in a CIA-leased facility where Committee staff were working.

“According to [CIA Director] Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the internal Panetta review [a CIA document which CIA had not intended to release to the Committee]. The CIA did not ask the committee or its staff if the committee had access to the internal Panetta review or how we obtained it.”

“Instead, the CIA just went and searched the committee’s computers,” Sen. Feinstein said.

Through the Speech or Debate clause, the Constitution “has imposed [limitations] on executive branch attempts to interfere with legislative activities, including Congress’s authority to conduct oversight and investigations,” the new CRS analysis explained.

The Speech or Debate clause has been interpreted variously by two appellate courts, with different implications for the current circumstance, CRS said. The CIA search of Senate Intelligence Committee computers “could arguably be viewed as violating the non-disclosure privilege recognized by the court in Rayburn,” CRS said, referring to a 2007 DC Circuit case involving an FBI search of the House office of Rep. William Jefferson.

However, under a different reading of the Speech or Debate clause from a Ninth Circuit opinion in a case called US v. Renzi, the potential CIA violation “is less clear,” the CRS memorandum cautioned.

See Who’s Overseeing Whom? The CIA, SSCI and the Speech or Debate Clause, CRS Legal Sidebar, March 13, 2014.

In any event, the possible violation by the CIA of the non-disclosure privilege provided by the Speech or Debate clause is not legally actionable at this time, CRS said.  Rather, it “would only come into play in the event of a subsequent legal proceeding.”

On Friday, CIA Director John Brennan sent an email message to CIA employees containing what was understood to be a conciliatory signal towards Congress. “It is appropriate for the Intelligence Committees in the Senate and the House to carry out their oversight responsibilities thoroughly and comprehensively, and CIA needs to do all it can to assist the Committees in that regard,” Director Brennan wrote.

“Regarding the SSCI’s RDI [rendition, detention and interrogation] report, I want to assure you that the entire CIA leadership team is committed to addressing any outstanding questions or requests from SSCI members so that the Committee can complete its work and finalize the report as soon as possible.”

“I expect the Committee will submit at least some portion of the report to the CIA for classification review, and, if that happens, CIA will carry out the review expeditiously,” he wrote in the March 21 email message (published by Politico).

Some Legislators Seek More Intelligence Budget Disclosure

Now that annual disclosure of the intelligence budget total has become routine, some legislators are seeking more transparency on intelligence spending.

As anticipated, the requested U.S. intelligence budget for Fiscal Year 2015 that was submitted to Congress this week fell below the current year’s level and continued a decline from the post-9/11 high that it reached in FY 2010.

The “base” funding request for the National Intelligence Program (NIP) for FY 2015 was $45.6 billion, while the base funding request for the Military Intelligence Program (MIP) was $13.3 billion. (“Base” funding does not include funding for “overseas contingency operations,” which is to be requested later in the year.)

By comparison, the base funding request for the NIP in FY 2014 was $48.2 billion, and the base funding request for the MIP was $14.6 billion. Additional data on intelligence budget appropriations can be found here.

An unclassified summary of the FY 2015 National Intelligence Program budget request (that was included in the overall budget request) implied that the publication of the request was a voluntary act of transparency.

“Reflecting the Administration’s commitment to transparency and open government, the Budget continues the practice begun in the 2012 Budget of disclosing the President’s aggregate funding request for the NIP,” the summary said.

In fact, however, the publication of the NIP budget request is required by law, since it was included in the FY 2010 Intelligence Authorization Act by the Senate Select Committee on Intelligence (Public Law 111-259, section 601). An ODNI news release on the budget request correctly cited the legal requirement to publicly disclose the budget request figure.

On the other hand, there is no corresponding legal requirement for the Department of Defense to publish the budget request for the Military Intelligence Program. But DoD has done so voluntarily since 2012, a move that represents a genuine reduction in official secrecy by the Obama Administration.

Even so, dozens of Congressmen say that there is still too much secrecy in intelligence spending. The Intelligence Budget Transparency Act of 2014 (HR 3855), introduced by Rep. Cynthia M. Lummis (R-WY), would require disclosure of the total budget of each of the individual 16 agencies that make up the U.S. intelligence community.

“Writing checks without any idea of where the money is going is bad policy,” said Rep. Lummis in a January 14, 2014 release. “Disclosing the top-line budgets of each of our intelligence agencies promotes basic accountability among the agencies charged with protecting Americans without compromising our national security interests.”

“The top-line intelligence budgets for America’s 16 intelligence agencies are unknown to the American taxpayer and largely unknown to the Members of Congress who represent them,” added Rep. Peter Welch (D-VT), a co-sponsor of the bill. “It’s led to dubious policies, wasted money and questionable effectiveness. Requiring the public disclosure of top-line intelligence spending is an essential first step in assuring that our taxpayers and our national security interests are well served.”

Interestingly, the bill’s 59 congressional co-sponsors include a roughly equal number of Republicans and Democrats. Republican legislators have not previously been known to favor disclosure of individual agency intelligence budgets, with the exception of the late Sen. Arlen Specter, a former chair of the Senate Intelligence Committee, who once advocated release of the NRO budget total.

A February 12 letter to President Obama asking him to release the individual agency budget figures was signed by 62 members of Congress.

Many of the classified portions of the new Department of Defense budget request were tabulated in “Read the Pentagon’s $59 Billion ‘Black Budget'” by Brandy Zadrozny, The Daily Beast, March 6.

Disclosure of FISA Court Opinions: Legal Issues (CRS)

Could Congress legally compel the executive branch to disclose classified opinions of the Foreign Intelligence Surveillance Court?  Maybe not, a new analysis from the Congressional Research Service concludes.

The CRS report — entitled “Disclosure of FISA Court Opinions: Select Legal Issues” — has little to do with FISA Court opinions in particular. It is an analysis of the overlapping authorities of the three branches of government to classify or disclose national security information.

“The central issue is the extent to which Congress may regulate control over access to national security information, including mandating that the executive branch disclose specific materials — a question not definitively resolved by the courts,” the report says.

This is not a new question, but it is usefully reviewed and summarized by the CRS report.

The issue arises because “The executive branch has argued that the Commander-in-Chief clause bestows the President with independent power to control access to national security information. As such, according to this line of reasoning, Congress’s generally broad ability to require disclosure of agency documents may be constrained when it implicates national security.”

Although no statute regulating classification has ever been ruled unconstitutional, “Congress’s power to compel the release of information held by the executive branch might have limits,” CRS said. “There may be a limited sphere of information that courts will protect from public disclosure,” just as they have exempted properly classified information in FOIA cases, and state secrets in other cases.

The unsurprising bottom line is that “proposals that allow the executive branch to first redact information from FISA opinions before public release appear to be on firm constitutional ground.” However, the CRS report said, “a proposal that mandated all past FISA opinions be released in their entirety — without any redactions by the executive branch — might raise a separation of powers issue.”

All of this may seem academic and politically inapt since there are no active proposals in Congress to compel public release of FISA court opinions that are completely unreviewed or unredacted.

In fact, Congress has arguably been derelict in failing to press more assertively for release of legal rulings of the FISA court, and for disclosure of the general contours of the telephony bulk collection program. Had Congress forcefully required the publication of such information, much of the angst and turmoil of the past nine months that resulted from the Snowden disclosures might have been avoided.

The new CRS report has a couple of other noteworthy omissions.

It does not mention the authority claimed by the congressional intelligence committees to publicly disclose classified information without executive branch approval. (See Section 8 of Senate Resolution 400 of the 94th Congress, 1976.)  Though this authority has never yet been exercised, it remains available in principle.

The report also does not mention some recent instances when Congress has successfully compelled executive branch declassification while also navigating around potential constitutional obstacles.

So, for example, the Senate Intelligence Committee enacted a requirement in the FY 2010 Intelligence Authorization Act (Section 601) that the executive branch must disclose the annual budget request for the National Intelligence Program when the annual budget is submitted. Previously, the intelligence budget request had always been classified information. To save constitutional appearances and assuage the concerns of executive branch lawyers, the Act did include a provision for the President to waive the requirement on national security grounds — but he has never yet done so.

Last week, the Electronic Privacy and Information Center obtained copies of declassified Justice Department reports on the use of pen registers and trap and trace devices under the Foreign Intelligence Surveillance Act from 2000 to 2013.

McCain Proposes New Select Committee on NSA Leaks

A resolution introduced yesterday by Sen. John McCain would establish a new Senate Select Committee to investigate the unauthorized disclosures of classified information on National Security Agency collection programs and their implications for national policy.

The McCain resolution is framed broadly and touches on many issues besides leaks, including intelligence policy, congressional oversight, the role of contractors, the constitutionality of current intelligence programs, and more.

The resolution asserts that “senior officials in the intelligence community may have misled Congress or otherwise obfuscated the nature, extent, or use of certain intelligence-collection programs, operations, and activities of the National Security Agency, including intelligence-collection programs affecting Americans.”

“[T]he provision of incomplete or inaccurate information by officials of the intelligence community has inhibited effective congressional oversight of certain intelligence-collection programs, operations, and activities of the National Security Agency, including intelligence-collection programs affecting Americans, and undermined congressional and public support of these programs,” the resolution stated.

Moreover, “some such programs, operations, and activities that are the subject matter of the unauthorized disclosures may not have been authorized, or may have exceeded that which was authorized, by law, or may not have been permitted under the Constitution of the United States.”

The proposed new select committee would investigate the unauthorized disclosures and assess how they occurred, the damage to U.S. national security that resulted, and how such damage could be mitigated.

The committee would review the role of intelligence contractors and the adequacy of current management controls.

The committee would evaluate the legality, constitutionality, and efficacy of the NSA collection programs that have been disclosed.

It would also consider “the need for greater transparency and more effective congressional oversight of intelligence community activities,” and whether existing laws are sufficient “to safeguard the rights and privacies of citizens of the United States.”

In proposing a new select committee, Senator McCain is implicitly declaring that existing oversight procedures are inadequate, and that a new, more fundamental approach is required. The prospects for the McCain proposal to become a reality are uncertain.

DNI Clapper: Transparency is the Way Forward

The primary lesson that emerges from the unauthorized disclosures of classified intelligence information by Edward Snowden is that U.S. intelligence agencies must be more transparent in their operations, said Director of National Intelligence James R. Clapper yesterday.

“The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can,” DNI Clapper told the Senate Intelligence Committee.

“With greater transparency about these intelligence programs the American people may be more likely to accept them,” he said, promising “further declassification.”

Another possibility, he acknowledged, is that even with greater transparency the American people will choose not to accept certain kinds of intelligence programs.

“If dealing with reduced capacities is what we need to ensure the faith and confidence of the American people and their elected representatives, then we in the intelligence community will work as hard as we can to meet the expectations before us,” DNI Clapper said.

Already, the Snowden disclosures have caused “profound damage” to U.S. intelligence, the DNI said.

“What Snowden has stolen and exposed has gone way, way beyond his professed concerns with so-called domestic surveillance programs. As a result, we’ve lost critical foreign intelligence collection sources, including some shared with us by valued partners.”

“Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed to prevent even more damage to U.S. security,” the DNI said.

The use of the word “accomplices” appeared to suggest that the DNI views the journalists who possess and report on the Snowden documents as Snowden’s partners in crime, and even as criminals themselves.

“Is it now the official view of the Obama administration that these journalists and media outlets are ‘accomplices’ in what they regard as Snowden’s crimes? If so, that is a rather stunning and extremist statement,” wrote Glenn Greenwald, who first reported on the Snowden releases last June.

But though it has never yet figured in an actual prosecution, the issue of criminal liability for journalists in this area is embedded in the law.

It’s true that there is no general legal prohibition on publication of classified information. (Congress passed such a statute in 2000, but President Clinton vetoed it.)

But there is a clear and specific prohibition on the willful disclosure of classified communications intelligence information. And that prohibition, in 18 U.S.C. 798, extends also to anyone who “publishes” such information.

What is “stunning,” or at least noteworthy, is that the Obama Administration has apparently made a strategic decision not to attempt to enforce this provision of the law against publishers of the Snowden documents. (It was invoked against Snowden himself as one of the three counts in a June 14, 2013 criminal complaint.)

It seems that even what the DNI called “the most massive and most damaging theft of intelligence information in our history by Edward Snowden and the ensuing avalanche of revelations published and broadcast around the world” is not sufficient to trigger the use of the criminal statute against publishers of classified communications intelligence. So that provision is effectively a dead letter, even if it still finds a faint echo in the DNI’s testimony before Congress.