On Publishing Classified Information

from Secrecy News:

“It’s not a crime to publish classified information,” explained Washington Post reporter Dana Priest in an electric moment on last Sunday’s NBC Meet the Press, even though “[commentator William] Bennett keeps telling people that it is.”

Mr. Bennett, who was sitting right next to Ms. Priest, had declared last April that reporters like Ms. Priest who publish classified information “against the wishes of the President” should be “arrested.”

“I don’t think what they did was worthy of an award,” Mr. Bennett had said, referring to the Pulitzer Prize-winning reporting by Ms. Priest and two New York Times reporters—“I think what they did is worthy of jail.” (Editor and Publisher, 04/18/06).

But Mr. Bennett was wrong and Ms. Priest was correct: There is no comprehensive statute that outlaws the publication of classified information.

(As Ms. Priest went on to explain, there are several narrow categories of classified information, such as communications intelligence, covert agent identities, and a few others that are protected by statute.)

A new report (pdf) from the Congressional Research Service describes the legal framework governing the disclosure and publication of classified national security information.

“This report provides background with respect to previous legislative efforts to criminalize the unauthorized disclosure of classified information; describes the current state of the laws that potentially apply, including criminal and civil penalties that can be imposed on violators; and some of the disciplinary actions and administrative procedures available to the agencies of federal government that have been addressed by federal courts.”

“Finally, the report considers the possible First Amendment implications of applying the Espionage Act to prosecute newspapers for publishing classified national defense information.”