If a Bear Shits in a Sealed CIPA Conference, Can It Expand the Espionage Act to the NYT’s Readers?

On May 3, 2022, Judge Jesse Furman posed two hypotheticals to prosecutors in the Joshua Schulte case about whether the Espionage Act would apply to people who disseminated already public information from the Vault 7/Vault 8 leaks: First, a member of the public, having downloaded publicly-posted CIA hacking materials made available by WikiLeaks, who gave those materials to a third party. Second, someone who passed on information from the Vault 7/8 leaks published by the NYT to a third party. In both cases, the government argued that someone passing on already public information from the leaked files could be guilty of violating the Espionage Act.

At least, it appears that the government argued for this expansive hypothetical application of the Espionage Act, based on what Furman said in a discussion about jury instructions on July 6. I’ve put a longer excerpt of the exchange from the discussion about jury instructions below; here’s how Judge Furman instructed the jury on the matter.

The actual discussion in May took place in a hearing conducted as part of the Classified Information Procedures Act, CIPA, the hearings during which the government and defense argue about what kind of classified information must be declassified for trial (I wrote more about CIPA in this post). Because the discussion happened as part of the CIPA process, the hearing itself is currently sealed.

And the government wants it to stay that way.

Both in a letter motion filed on November 11, postured as an update on the classification review of the transcripts of that hearing, and in a December 5 letter motion Furman ordered the government to file formally asking to keep the transcripts sealed, the government argued that CIPA trumps the public’s right of access to such court records.

CIPA’s mandatory sealing of the records of in camera proceedings conducted pursuant to Section 6 supersedes any common law right of access to those records, and neither history, logic, nor the right of attendance at proceedings support a right of access under the First Amendment.

The earlier letter even explained why it wanted to keep the “extensive colloquies” in these hearings sealed.

Beyond that, the extensive colloquies and the specific issues of law discussed at that hearing would reveal, by itself, the specific type of relief sought by the parties on specific subjects, which would in turn provide significant indications about what classified information was at issue, prompting undue speculation that would undermine national security interests.

But this specific issue of law, whether journalists or their readers have legal exposure under the Espionage Act for reporting on leaked, classified material, is not secret. Nor should it be.

That’s why, with the support of National Security Counselors’ Kel McClanahan, I’m intervening in the case to oppose the government’s bid to keep the May 3 and other transcripts sealed. How the government applies the Espionage Act to people who haven’t entered into a Non-Disclosure Agreement with the government to keep those secrets has been a pressing issue for years, made all the more so by the prosecution of Julian Assange. Indeed, the government may have given the answers to Judge Furman’s hypotheticals that they did partly to protect the basis of the Assange prosecution. But for the same reason that the Assange prosecution is a dangerous precedent, the prosecutors’ claims — made in a sealed hearing — that they could charge people who share a NYT article (or an emptywheel post) on the Vault 7 releases raise real Constitutional concerns. As Judge Furman noted, “there are hundreds of thousands of people unwittingly violating the Espionage Act by sharing the New York Times report about the WikiLeaks leak” (and, though he doesn’t say it, tens of thousands sharing the emptywheel reporting about it). And yet no one will learn that fact if the discussion about it remains sealed.

I’m not usually able to intervene in such matters because I don’t have the resources of a big media in-house counsel to do so. McClanahan’s willingness to help makes that possible. National Security Counselors are experts on this kind of national security law, with extensive experience both on the Espionage Act and on CIPA. But the group relies heavily on tax-exempt charitable contributions to be able to do this kind of work. Please consider supporting  the effort with a donation via this link or PayPal. Thanks!

Transcript excerpt

These transcripts were obtained by the Calyx Institute with funding from Wau Holland, the latter of which has close ties to WikiLeaks.

So that’s the context and a little bit of the background. I think I have frankly come around to thinking that for reasons and constitutional avoidance and otherwise that there is a lot to — that Mr. Schulte is not entirely correct but is substantially correct, that is to say that if all — let me put it differently. I think the reason that Mr. Schulte is in a different position with respect to the MCC counts is that he is someone in a position to know whether the information was classified, was NDI, was CIA information and in that sense by virtue of leaking it again, so to speak, he is providing official confirmation but it is the official confirmation that is the new information that would qualify as NDI and I think Rosen kind of highlights that, that particular nuance. I think that distinguishes Mr. Schulte from — I gave you a hypothetical, again, I think it is currently in the classified hearing and therefore not yet public, but I gave you two hypotheticals. I think one is where a member of the public goes on WikiLeaks today and downloads Vault 7 and Vault 8 and then provides the hard dive with the download to someone who is not authorized to receive NDI, and I posed the question of whether that person would be guilty of violating the Espionage Act and I think your answer was yes. That strikes me as a very bold, kind of striking proposition because in that instance, if the person is not in a position to know whether it is actual classified information, actual government information, accurate information, etc., simply providing something that’s already public to another person doesn’t strike me as — I mean, strikes me as, number one, would be sort of surprising if that qualified as a criminal act. But, to the extent that the statute could be construed to the extend to that act one would think that there might be serious constitutional problems with it.

I also posed the hypothetical of the New York Times is publishing something that appears in the leak and somebody sharing that article in the New York Times with someone else. That would be a crime and there, too, I think you said it might well be violation of the law. I think to the extent that that would extend to the New York Times reporter for reporting on what is in the leak, or to the extent that it would extend to someone who is not in position to know or position to confirm, that raises serious constitutional doubts in my mind. That, to me, is distinguishable from somebody who is in a position to know. I think there is a distinction if that person transmits a New York Times article containing classified information and in that transmission does something that confirms that that information is accurate — right — or reliable or government information, then that’s confirmation, it strikes me, as NDI. But it just strikes me as a very bold and kind of striking proposition to say that somebody, who is not in position to know or does not act in a way that would confirm the authenticity or reliability of that information by sharing a New York Times article, could be violating the Espionage Act. That strikes me as a kind of striking proposition.

So all of which is to say I think I have come around to the view that merely sharing something that is already in the public domain probably can’t support a conviction under this provision except that if the sharing of it provides something new, namely, confirmation that it is reliable, confirmation that it is CIA information, confirmation that it is legitimate bona fide national defense information, then that confirmation is, itself, or can, itself, be NDI. I otherwise think that we are just in a terrain where, literally, there are hundreds of thousands of people unwittingly violating the Espionage Act by sharing the New York Times report about the WikiLeaks leak.

MR. DENTON: So, your Honor, I think there is a couple of different issues there and one of them is sort of whether the question that you are posing right now is actually the right question for this moment in time when we are talking about the elements of the offense.

In the context of that earlier discussion, and I will repeat it here, I think one of the things that we emphasized is there is a difference between whether a set of conduct, either the hypotheticals that you describe would satisfy the elements of a violation of 793 as opposed to the separate question of whether a person or an organization in that context would have a well-taken, as-applied First Amendment challenge to the application of the statute to them in that context.

THE COURT: But I have to say — and I recognize this may be in tension with my prior holding on this issue — the First Amendment is an area where somebody — I mean, the overbreadth doctrine in the First Amendment context allows somebody, as to whom a statute could be applied, constitutionally to challenge the statute on the grounds that it does cover conduct that would violate the First Amendment. So in that regard, it is distinct from a vagueness challenge. I think to the extent that you are saying that in those instances — I mean, the reason being that the First Amendment embodies a concept of chilling. If a New York Times reporter doesn’t know whether he is violating the Espionage Act by repeating what is in the WikiLeaks leak notwithstanding the fact that there is serious public interest in it, it may chill the suppression and that suppression is protected by the First Amendment. That’s the point in the overbreadth doctrine.

Go ahead.

23 replies
  1. hcgorman says:

    This is an issue that has made and continues to make me crazy. For my Guantanamo work I had to have a security clearance because of all of the “secret” stuff- most of which fell under the umbrella of embarrassing not national security. But I dutifully complied with my obligations and continue to do so (I still have one client there). When wikileaks released a trove of information on Guantanamo we (the habeas counsel representing the men) received an email telling us if we accessed the information we would be in violation of our security clearance. WTF. Everyone else in the fuckin country/world can read this stuff- but we- the people representing the men being held could not (and cannot)? We went round and round about this with the good folks at the national security office and they held firm. We were/are forbidden to review this. I remember a friend casually mentioning to me- “well now I know what your clients look like- and why they are being held.” What did they know? Was it the same information I knew? But of course I did not want to take the chance- I didn’t even peek- nevertheless download the stuff. It seems that over time we were able to get some of those materials deposited at the secure facility (the secret place where we worked on our secret stuff). That was when I discovered (amongst other things) that the government had another wrong photo for my client. As I argued until I was blue in the face- the government did not have an accurate photo of my client and they thought he was someone else. All of those identifications of my client by other detainees (who were tortured) were identifications made based on a photo of someone else. And wikileaks set free a photo that explained a lot.
    And yes, that is why I am crazy.
    Thank you for taking this on. It seems there has to be a rule in place that once classified information enters the public domain it should lose its classification status.
    Donation coming your way.

    • emptywheel says:

      I remember talking about that with some of the Gitmo lawyers, probably you too. I also remember that by comparing the report date on one of the reports one could figure out everyone who was rounded up together on the border of PK. In fact that’s one thing I was thinking about when I wrote this.

      If you’re donating on this front, please donate to Kel, as he’ll be doing the big lift. My impression is that Furman wants to find a way to release this stuff in any case. I just want to make it significant enough to pry open CIPA a bit.

  2. Thorvold says:

    One point that may help to understand the Govt point of view is their stance that classified data that is leaked does not become declassified simply because of the leak, and should still be treated as classified data.

    This means that all of the rules and laws for handling classified data are still in operation from the government’s perspective. They do not want people browsing to see that data on an un-cleared system, because that then has to be treated as a “spill” (classified data on a system that is not authorized to contain it).

    This means that “public” information does not mean the same as “unclassified” information, even though to the general person they both mean data that can be shared as much as you want.

    • Thorvold says:

      Another point for discussion that might help is contrasting a leak of classified data with a FOIA release. Specifically what is the definition of “public” and is there a “one person” dividing line.

      In the case of FOIA, then once data is de-classified and released under FOIA, it is declassified and release-able to anyone else that requests it. The first person outside government that sees the data is the dividing line about whether the data is considered “public”.

      In the case of classified data, if it is exposed to someone that does not have the need-to-know to see it (even though this is technically bad), and that person doesn’t share it, then it is still classified and protected. So the Government stance is that data that is leaked does not change the classification status just because of the leak. That data might be reviewed and go through the de-classification process and be officially determined to be no longer classified at a later date, but that is not a fore-gone conclusion. If that person then shares a NYT article about the material in a way that acts as confirmation that the material is accurate (or even just the perception) then they can get in trouble. There isn’t a “one-person” dividing line in this case about when the material becomes “public”.

    • Yogarhythms says:

      Ew, Thorvold,
      Yes there are rules to follow if you want to declassify a document. There are rules if you want to experiment with highly infectious microorganisms. Once a microorganism is no longer contained in a level Four Biohazards protected lab and is flourishing in the general public people do not follow government regulations and wear moon suits to interact with each other. When would you suggest the government acknowledge a leak of classified information is so large that the leak is in fact a defacto declassification?
      I know absolutism is seductive but put your big boy pants on.

      • Thorvold says:

        The point that I was trying to make is that “public” is not a well-defined term even in the court discussion above, and if you want to have a discussion about whether information should be considered to still be classified when it becomes “public”, then you need to have a shared definition of what the term means.

        In your Level Four Biohazard hypothetical, I think that people do go to great lengths to protect themselves (see early COVID pandemic behaviors). As far as the government is concerned, they would continue to treat it as Level Four as long as possible until it got officially re-evaluated. In the case of classified information, the government is never going to acknowledge it if they don’t have to, until it is officially declassified.

        In terms of what is considered “public”, I think there are many ranges to consider:
        1. 100 cleared people and an uncleared spouse that overhears something
        2. Info that gets spread in a small (4-5) people conspiracy newsletter (1997 Conspiracy Theory movie)
        3. Info that gets spread by an article in a major newspaper.

        If someone is shopping an article around to several news sources, then if it gets picked up by #2 vs. #3, would that matter in your eyes in whether it is “public”?

        • Savage Librarian says:

          And what about #4 The Public Library, where #1 works (or frequents regularly) and where #2 compiles its newsletter and leaves copies scattered around the building, and #3 is routinely found on the shelf and in a database for library customers?

        • GWPDA says:

          Or indeed information that has been declassified, properly, then analysed and published in book form, and then many years later is re-classified and ‘withdrawn’ from publication and the original declassified material removed from the possession of its custodian on the grounds that the material is classified? Thank you, CIA.

        • Savage Librarian says:

          This might be a reference to what happened to Senator Henry “Scoop” Jackson’s papers at the University of Washington (or something similar.)

          Under the Legacy tab in this wiki, you’ll see info about the “Jackson Papers controversy”:

          “In February 2005, 22 years after Jackson’s death, a five-person team including staff of the CIA, Department of Defense, the Department of Energy, and the Information Security Oversight Office came to the library to review all of Jackson’s papers to remove anything still considered classified, or reclassified since then. The Department of Energy found nothing of concern, but the CIA blanked lines in about 20 papers and pulled 8 documents out of collection.”


        • NatlSecCnslrs says:

          It also could be referring to the spree CIA went on at the National Archives after 9/11 where they went in and reclassified a bunch of stuff that had been officially declassified and pulled it from the shelves.

          [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your third username; let’s stick with this one since it meets the 8 letter minimum standard and it matches your Mastodon handle. Thanks. /~Rayne]

        • earlofhuntingdon says:

          I would work on my hypotheticals, if I were you. Neither No. 1 nor No. 2 is public. Both are leaks, and lack the elements of publication and general availability.

  3. Yogarhythms says:

    Ew, Th,
    Agreed “public” is not defined. Rules not rights are the distinction. Level Four Biohazard rules are violated once the microorganisms have escaped the physical confines of the building. The government can still identify the microorganisms as a species worthy of level 4 biohazard but there is no “Dirty Gown” – “Clean Gown” dawning bench in the public space. The government adjusts its rules accordingly in pursuit. 1A rights are open to violations when a government overreaches in pursuit of classification rules reluctant to change post leak and are applied to information that has left the building and is now in the public space readable on NYT or EW platforms.

  4. Fancy Chicken says:

    Dr. Wheeler,

    I am tremendously grateful for your participation with National Security Counselors to get the transcripts unsealed to understand (and if necessary challenge) the position of the government regarding their claim of potential legal jeopardy when citizens access NDI cybersecurity and defense material released into the public sphere. In a way it’s very personal for me.

    I’m the proud granddaughter of Dr. Paul Johnstone, who assisted Daniel Ellsberg in deciding which classified documents to include in the Pentagon Papers given to the New York Times and Washington Post for publication. My grandfather was a project director for the Institute for Defense Analyses and Chief of staff to Gen. Maxwell Taylor when he was Chairman of the Joint Chiefs of Staff from 1962-64 and responsible for some of the disastrous decisions in the beginning of the Viet Nam war that the Papers revealed to the public.

    My grandfather apparently had such profound philosophical and ethical differences with Maxwell and McNamara that he chose to help Ellsberg in the twilight of his career at the DoD despite the risk to himself. Grand Pop was quietly given early retirement rather than publicly fired for assisting Ellsberg to avoid the additional embarrassment it would have caused the DoD as they fought the publication of the Papers.

    In the Pentagon Papers case the government argued that the documents were NDI and their release threaten national security, but as is well known, the Supreme Court ruled that “security” was rather ambiguous in this instance and not sufficient to put prior restraint on the press. However, that classified information was largely historical in nature and included classified assessments of decision making, public spin and military performance in the Viet Nam war.

    The Vault 7 cache is different in that it included yet to be deployed cyber tools including I believe, zero day programs. I think the government can make a strong argument that the material released in Vault 7 included exposing “methods” seriously compromising national security.

    With that said, I think is critical to make the government engage with the public and courts to prove in each context, including the Vault 7 information, what is and is not genuinely a threat to national security when the cat is already out of the bag, and securing 1st amendment rights for the press and citizens to access leaks that are of a clear and obvious public concern in evaluating the integrity and performance of our intelligence community.

    While I personally think Assange is an asshat who went deeply off mission with Wikileaks, the classified information that Chelsea Manning gave Wikileaks was vital in revealing the failures of our military in Iraq. This included the 2007 video of a US air strike in Baghdad killing civilians and two reporters from Reuters with the Apache crew laughing about it. This was truly whistleblower information that the media and public had a profound interest in during the war.

    I attended parts of Manning’s court martial and numerous marches and events in DC supporting Manning and John Kiriakou, a CIA whistleblower who’s trial was going on roughly during the same time period.

    Because the intelligence community does not see the difference between someone like Schulte and John Kiriakou and considers any release of classified information to be a threat to national security, what you are standing up for is just as important as my grandfather assisting Ellsberg; it requires a constant and evolving engagement with a vigilant press and public with the government to mediate the tension between national security and 1st amendment rights that allow us to hold our government to accountability when acting in our name.

    So again, thank you. It is a joy to contribute the little I can financially while you fight the Good Fight.

    • timbozone says:

      1st Amendment edge cases in US national security enforcement are certainly still going to be happening as long as we have a 1st Amendment. Thanks for all this info, Fancy Chicken.

    • Ginevra diBenci says:

      Fancy Chicken, Between Dr. Wheeler’s post and your informative, inspiring comment, this discussion has shaped up as possibly the thorniest–and thus most essential–I’ve read in my years coming here for what’s truly important. In the midst of an investigation into a former POTUS who stole NDI with the motive to “declassify” and publicly release those he believed would prove his Russiagate claims, it seems increasingly important for the public to have insight into the government’s processes regarding classification.

      As you and EW attest, that is not the same thing as access to the actual secrets. But transparency about decisions need not be total; I believe we can tolerate learning that certain doors are closed if we have a general idea why.

  5. Patrick Carty says:

    “….How the government applies the Espionage Act to people who haven’t entered into a Non-Disclosure Agreement with the government to keep those secrets has been a pressing issue for years, made all the more so by the prosecution of Julian Assange…..”

    You do not need to have a NDA with the government as a barometer regarding espionage anymore than borrowing money from a known bank robber protects you from receiving stolen property. Disseminating known classified information is espionage, and wearing a hat that says journalist isn’t going to protect you. Ask Julian.

  6. Mark A Oglesby says:

    Anytime you hear “Espionage Act” please study its historical usage, and what it did to this nation at that time, and please believe me, it’s going to be repeated (already is). For some excellent information, please read Adam Hochschild’s new book: ‘American Midnight: The Great War, A Violent Peace, and Democracy’s Forgotten Crisis’ In his work, Hochschild details the vast dangers enacted by the government and its people of the nation in a “so-called” defense of the “American Way of Life.” Extremely frightening as well as brutal. Also, you can view on ‘The Chris Hedges Report’ the video with Adam Hochschild on his new book American Midnight: The Great War, A Violent Peace, and Democracy’s Forgotten Crisis

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