Not All Leaks of Classified Information Violate the Law

“The unauthorized release of classified information is a crime–it is a crime–because it threatens our national security and puts the lives of those who are sworn to defend our Nation in jeopardy,” said Sen. John Cornyn (R-TX) said on the Senate floor yesterday. “Everyone agrees [this] is criminal conduct.”

A resolution introduced by Sen. John McCain and twenty Republican colleagues calling for appointment of a special counsel to investigate recent leaks stated flatly that “the unauthorized disclosure of classified information is a felony under Federal law.”

But these statements are imprecise and misleading.  While some unauthorized disclosures of classified information are indeed contrary to law, it is not the case that all such disclosures violate the law.  In fact, there is no law that categorically prohibits the release of classified information.

“It must be acknowledged that there is no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information irrespective of the type of information or recipient involved,” wrote Attorney General John Ashcroft in an October 2002 report to Congress.

Significantly, AG Ashcroft added that “The President has the power under the Constitution to protect national security secrets from unauthorized disclosure. This extends to defining what information constitutes a national security secret and to determining who may have access to that secret.”

Likewise, according to the Congressional Research Service, “there is no one statute that criminalizes the unauthorized disclosure of any classified information…. It is possible that some of the government information… does not fall under the express protection of any statute, despite its classified status.”

Some types of classified information are specifically protected by law, including that pertaining to communications intelligence, identities of covert agents, and nuclear weapons design information.  But the Espionage Act statutes that have been used to prosecute most leak cases (18 USC 793, 794) do not mention “classified information” at all.  Rather, they apply to “national defense” information, an imprecise term that is not coextensive with “classified” information.

Even when “national defense” information that is clearly covered by the Act is disclosed to an unauthorized person, it does not necessarily follow that a crime has been committed.

Courts have interpreted the convoluted language of the Espionage Act to mean that only those with the requisite criminal intent will have violated the law.

In order to convict someone of unauthorized disclosure of national defense information (not involving disclosure of documents), Judge T.S. Ellis, III, the presiding judge in the AIPAC case, ruled in 2006 that it would be necessary for prosecutors “to demonstrate the likelihood of [the] defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”

If White House officials disclosed classified information to reporters without authorization, it is doubtful that they intended to harm the United States or to aid a foreign government by doing so.

For these reasons, it is not true that “everyone agrees [this] is criminal conduct.”