Is It A Crime To Leak "Classified Information?"

Commenter Unknown has expressed  a concern that I suspect is shared by many:

Today, Judicial Watch reported that 14 FBI officials were referred to OPR for leaking classified or sensitive information to the media. Four were terminated and none (to date) have been prosecuted.

 I blame myself to some extent for not having addressed this concern in the past. It's an area of law that is little understood by persons who don't deal with it for a living.

Is there an easy answer to the question: Is It A Crime To Leak Classified Information?

The answer is: Yes.

Or: No.

What criminal statute covers the leaking of classified information? OK, that question really does have an easy answer: 18 U.S. Code § 798. Disclosure of classified information. According to this statute,

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information— 

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or 

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or 

(3) concerning the communication intelligence activities of the United States or any foreign government; or 

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes— 

Shall be fined under this title or imprisoned not more than ten years, or both.

I trust you can see the problem right away. The type of information covered by this statute is highly specific--it must pertain to "communications intelligence systems and activities of the United States." If it doesn't, then the leak isn't a crime. Now, there are other statutes--such as the Espionage Statute, 18 U.S. Code § 793. Gathering, transmitting or losing defense information, but the same caveat applies: the type of information covered is highly specific and restricted. I suppose that has something to do with the First Amendment. And see below re that word "classified".

Journalists, and pundits, and lowlives like politicians, like to try to make hay out of claims that so-and-so has committed a criminal act by mishandling classified information. Sometimes they have. James Comey and Hillary Clinton come to mind. OIG certainly (or so we're told in leaks) referred Comey for prosecution--although prosecution was (or so we're told in leaks) declined. Part of the problem in the Comey case that made it--in OIG's opinion--prosecutable was that Comey appears to have stolen government property. IOW, the memos he wrote for FBI files were FBI property, but he treated them as his own personal property. He had a problem distinguishing meus and tuus.

What do we know about the specific circumstances of the 14 FBI  officials referenced by Judicial Watch? Not much, except that they "leaked" to the media. Since four of them were fired, we assume that whatever it was they did violated the terms of their employment--the internal regulations that they agreed to obey. So they were canned. That's not a small thing. Being actually fired for having violated a confidentiality agreement with an employer doesn't exactly make you attractive to prospective employers. OPR probably did the right thing.

But the point is that you only get prosecuted for an actual crime, and leaking classified information isn't necessarily a crime--not without highly specific circumstances coming into play. In this day and age it's kind of comforting to know that DoJ at least sometimes follows the law.

Here's a link that explains some of that business about the law--Unauthorized Disclosure of Classified Information:

But here's one with all the caveats--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. 

...

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.”