Civil Liberties

Felonizing Whistleblowers

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Jackass

Government transparency watchdog Steven Aftergood alerts us to a bad new bill:

Legislation introduced in the Senate this week would broadly criminalize leaks of classified information.  The bill (S. 355) sponsored by Sen. Benjamin Cardin (D-MD) would make it a felony for a government employee or contractor who has authorized access to classified information to disclose such information to an unauthorized person in violation of his or her nondisclosure agreement.

Under existing law, criminal penalties apply only to the unauthorized disclosure of a handful of specified categories of classified information (in non-espionage cases).  These categories include codes, cryptography, communications intelligence, identities of covert agents, and nuclear weapons design information.  The new bill would amend the espionage statutes to extend such penalties to the unauthorized disclosure of any classified information. […]

The bill would replace the Espionage Act's use of the term "national defense information" with the broader but more precise term "national security information."  It would outlaw any knowing violation of an employee's classified information nondisclosure agreement, "irrespective of whether [the discloser] intended to aid a foreign nation or harm the United States." […]

Ah, the redesign!

[I]t would establish a rebuttable presumption that any information marked as classified is properly classified.  (The bill does not distinguish between "information" and "records.")  This means that the government would not have to prove that the leaked information was properly classified;  the defendant would have to prove it was not. In order to mount a defense arguing "improper classification," a defendant would have to present "clear and convincing evidence" that the original classifier could not have identified or described damage to national security resulting from unauthorized disclosure.  Such challenges to original classification are almost never upheld, and so the defendant's burden of proof would be nearly impossible to meet.

The bill does not provide for a "public interest" defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation.  It does not address the issue of overclassification, nor does it admit the possibility of "good" leaks.  Disclosing that the President authorized waterboarding of detainees or that the government conducted unlawful domestic surveillance would be considered legally equivalent to revealing the identities of intelligence sources, the design of secret military technologies or the details of ongoing military operations.

And at a time when an unprecedented number of leak prosecutions are underway, the bill's premise that an enhanced ability to prosecute leaks is needed seems questionable.

Reason on secrecy here and here.

NEXT: About That Constitution

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  1. “the bill’s premise that an enhanced ability to prosecute leaks is needed seems questionable.”

    How about “the bill’s premise that an enhanced ability to prosecute leaks is needed is total and absolute bullshit”?

    Oh, and what about the “civil and on-topic” bullshit? How many “Reason” comments can meet that standard? Two?

    1. Oh, and what about the “civil and on-topic” bullshit? How many “Reason” comments can meet that standard? Two?

      I got your “civil and on-topic” right here motherfucker!

      *grabs crotch shakes vigorously*

    2. Aftergood is an understated (and meticulous) writer.

      As for “civil and on-topic,” it is self-evidently a request, not a dress code.

      1. A fucking request?!? How civil do I have to be to get banned?

      2. Sorry, dude, I know not ‘seems.’ Saying that a gross and obnoxious proposal “seems questionable” is not being “understated (and meticulous).” It’s being inaccurate. Would “Reason” say that Obama’s high-speed rail bullshit “seems questionable”?

        1. You know, for a magazine called “Reason”….

        2. Really? The scare-quotes?

          Anyway, have fun with your righteousness.

          1. Matt, you wouldn’t know irony if it bit you on the tochas. Twice.

      3. The alt-text in the 1st photo wasn’t civil.

        It was very on-topic, though.

    3. Hey Alan, Matlock’s coming on in a few minutes. You’d better get that grilled cheese and weak cup of tea ready to go.

      1. That Matlock is one sexy man!

  2. It seems obvious this is another attempt to control the internet

    1. So what is the frequency, Dan?

      1. It is properly stated “Kenneth, what is the frequency?”, Alan.

        1. Mr. Vanneman was pining for the days when Dan Rather performed with REM.

          1. I think that’s the only REM song I can stand without punching someone, and that’s mainly because it’s about punching a news anchor while being totally insane.

            1. You are a specimen, Epi. I admire how freely you let the hate flow through you.

        2. Actually, I am Kenneth. Dan and I look a lot alike. I guess I should have come forward with this earlier, but once you know the frequency, you don’t really give a shit about anything else.

          1. Alan, what’s the frequency?

  3. unauthorized disclosure of classified info can compromise methods, means, & personnel.

    1. The unauthorized leak in your skull has compromised your brain.

    2. Re: OhioOrrin,

      unauthorized disclosure of classified info can compromise methods, means, & personnel.

      Translation: I (heart) Fascism.

      1. corrected translation – REMF

        1. Hello, piss facktery!

        2. You really are a reprehensible human being.

    3. That is precisely its intent. The aim of this bill is to keep America safe for officially-sanctioned corruption, graft, and general malfeasance.

      1. assuming that is what the classified info details.

        1. Hello again, piss facktery!

        2. It’s not like classified documents haven’t held proof of government negligence

        3. I’m willing to sacrifice effective imperialism and nation-building for government transparency.

          1. I’m willing to sacrifice imperialism and nation-building for a bucket of warm spit.

  4. Any legislation coming from that Senate seat is garbage. Pretty much anything coming from any Maryland congressman or senator is garbage, for that matter.

  5. The bill does not provide for a “public interest” defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation.

    Because the public interest would hinder the government’s ability to act with complete impunity. I mean, come on, people! Government is there to leep us “safe” (that is, inside a box)

  6. I initially read the headline as “Fellating Whistleblowers”.

    That is all.

  7. In a just world, Sen. Benjamin Cardin would already be swinging from a lamppost.

  8. At least Cardin’s motives are transparent, anyway.

    1. Another thing Cardin, um, has going for him is that he regularly appears on the Ron Smith show to be beaten up for his transparent motives.

  9. Boy was that a giant fuckup. Better slap a Secret classification on it.

    * Office of Governmental Incompetency

    1. That’s legitimate. Just imagine the harm that would result from its release.

  10. I don’t see the big deal–what’s the point of the government classifying information if they can’t protect it from dissemination?

    Currently, the penalty is that you can lose your job and have your future employment prospects drastically limited. That’s clearly a disincentive for most.

    but, if an employee can get more money from disclosing classified information (that is also not covered by the Espionage Act) then his future employment prospects are worth, this enforcement mechanism seems pretty inadequate.

    1. It’s the difference between the government having to spell out which types of classified information carry criminal penalties (currently, all the important ones that should be classified), and just allowing the government to classify anything and criminalize saying it.

    2. Re: Abdul,

      […]what’s the point of the government classifying information if they can’t protect it from dissemination?

      What’s the point of classifying it in the first place, if NOWHERE in the Constitution does it say that governent can keep secrets from The People?

      The ONLY reason for classifying information is to keep it from the people that pay (stupidly) their taxes. Foreign spies can pretty much obtain that info any time they want, and have. For ages.

    3. The problem is that the gubermint classifies EVERYTHING. It also allows almost everything it gets involved with to be considered “trade secret” or “privacy protected” – some of that may seem OK, but it always turns out that it is actually used to prevent accountability and responsiblity in gubermint. Ever notice how police unions prevent the investigation and resolution of police “infractions” (i.e., killings) by all the information that can’t be released due to one law or another?
      We already have laws to prosecute espionage – we don’t need the gubermint to have cart blanche to go after anybody for anything.

    4. John T, Old Mexican and Fresno dan all have a problem with classification, but none of you objected to criminal enforcement. To that extent, I agree. Information is improperly classified, and that should be challengable.

      But if you’re safeguarding classified informaiton and fail to do so, I don’t have a problem with criminal penalties.

      And as for Old Mexican’s constitutional challenge, treason is the only criminal act mentioned in the constition is treason, which includes “giving aid and comfort” to the nation’s enemies. While that doesn’t explicitly include sharing classified information, it’s not much of a stretch. After all, benedict Arnold was reviled for offering his services as a spy to the British.

      And do you seriously think that anyone could mount a successful defense to the Espionage Act on some sort of Constitutional grounds?

    5. Why do we need any sort of “enforcement mechanism” against whistleblowers disclosing information that poses no danger to anybody? The punishment should fit the crime, no? Termination of employment seems more than sufficient for an individual trying to expose secrets that present no risk.

      1. Why do you assume there is no danger? The Espionage Act mentions explicit dangers (such as the identity of a covert agent), but other classified data could have similarly dangerous consequences. Again, it’s a problem of whether you are classifying correctly, not a problem with enforcement.

  11. But Democrats are better on civil liberties!

    1. thats true – when dems assf*ck you, that do it with a regretfull, yammering incessently about how hard it is (heh heh), not the maleviolent batsh*t insane glee of the repubs.

      Myanus says, “I can’t feel the difference!”

  12. What’s the point of classifying it in the first place, if NOWHERE in the Constitution does it say that governent can keep secrets from The People?

    US Constitution, Art. I Sec. 5 – “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy;. . .”

  13. And neither has the common decency to give a reach-around.

  14. I’m surprised it wasn’t already illegal. So a govt employee can choose on their own when they will or won’t follow the law? Meanwhile I get a misdemeanor conviction if a camera catches me running a light in the middle of nowhere with no other inhabitants for miles around.

    Yeah it makes sense that people in government would would have given this power to themselves.

  15. If we could make such a law retroactive I believe leaky leahy would be in a heap of trouble. Worth it?

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