Saturday, December 31, 2005

� 798. Disclosure of classified information

Quietly and without fanfare, it looks like the above-cited law is in the preliminary stages of being enforced.(Thanks to Honest Partisan for providing a link to the law, BTW).

The only penalties I have seen for breaking this law seem to do with confiscating any financial windfall accruing to the law-breaker. Does this, in the larger context, constitutes treason? I am of the opinion that:

1. The nature of warfare has changed, such that propaganda and spin have taken on a more prominent role than in the past. Particularly in an asymmetric conflict.

2. Disclosure of classified information in the New York Times weakens our warmaking capability.

3. The U.S. Constitution defines treason as a.)levying war against the U.S., b.)adhering to enemies of the U.S., and c.)providing aid and comfort to the enemy. The clause was formulated with due regard to preventing abuse by a majority power within the context of routinely vicious partisan politics. If you follow that last link and read the whole article, you read a suggestion that the state of treason case law remains unresolved and ambiguous.

Perhaps a test case is in the offing?


Blogger Dave Justus said...

Right in the law you linked to is this: "Shall be fined under this title or imprisoned not more than ten years, or both."

Substantially more than just seizure of gain from the disclosure of information.

I am hesitant to extend the crime of treason this far. While we have a legitimate national interest at times in secrecy, we also have a legitimate national interest in transparent government. In general, I think that the government classifies too much. We should think very carefully about making revealing information the government wants to conceal a capitol offense.

1/03/2006 02:38:00 PM  
Blogger K. Pablo said...

Thanks for pointing that out about the prison time. Still seems like slap-on-the-wrist stuff to me, though.

Transparency of classified information is a tough issue for me, being a guy with strong libertarian leanings. I think I posted on your blog about the whole Treason idea, and I seem to remember you appealing to a definition of intent, which certainly the case law comments on. In the NSAgate context, I would only seek to consider a charge of Treason when disclosure of classified information compromises the ability of our country to defend itself during wartime.

1/03/2006 03:08:00 PM  
Blogger honestpartisan said...

No problem about that statute.

As long as we're getting all enforcement-minded about following various espionage statutes, seems that someone violated FISA, no?

1/04/2006 01:20:00 AM  
Blogger K. Pablo said...

My understanding is that eavesdropping outside the U.S. of a call originating outside the U.S. is outside the scope of FISA.

This is based on my lay-person reading of e.g., US CODE: Title 50 chapter 36 subchapter I � 1801, but there is an apparent conflict within the definitions (1801) and the proceding without court-order (1802). A U.S. citizen is simultaneously 1.) definable as a foreign power if engaged in international terrorism, and 2.)a U.S. citizen subject to protection from eavesdropping by the law.

1/04/2006 10:12:00 AM  

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