Do you have to keep the government's secrets? Retroactively classified documents, the First Amendment, and the power to make secrets out of the public record.

• Author: Abel, Jonathan
• Position: II. Can I Be Prosecuted for Disobeying Retroactive Classification? B. Retroactively Classified Documents through V. Concluding Note and Suggestions for Reform, with footnotes, p. 1067-1097

2. Retroactively Classified Documents

   That recipients of classified documents could be prosecuted for republishing them raises the question: How would the analysis differ if the documents were retroactively classified? This Section shows that any prosecution based on retroactively classified documents would face serious hurdles, above and beyond those faced by prosecutions based on traditionally classified material. Indeed, retroactive classification challenges many of the Espionage Act's basic assumptions. Despite these challenges, this Section argues that a prosecution could succeed. In the right circumstances, a person could be convicted for publishing information that was declassified when she received it but retroactively classified later on.

   1. Are the Threats of Prosecution Real?

      It is tempting to say there is no threat of prosecution arising from retroactively classified documents, much less the possibility of sustaining a conviction. After all, former directors of the Information Security Oversight Office (ISOO) emphasize that no one would be prosecuted for anything related to retroactively classified documents. Bill Leonard, the agency's director under President George W. Bush, said that, "if through the actions of the government, somebody came into possession--legitimate pos-session--of the material, and the government then subsequently [classified it], those individuals wouldn't find themselves in jeopardy," though he acknowledged that prosecution could, "in theory," occur. (180) William J. Bosanko, who succeeded Leonard, also emphasized that no one would be prosecuted. (181)

      But those who have experienced retroactive classification report that threats abound. James Bamford received repeated threats from the Justice Department when he refused to give back retroactively classified documents. (182) Attorney Mark Zaid recounts that the CIA threatened to revoke his security clearance and to prosecute his co-counsel (who did not have a security clearance) if they did not give back documents that had been retroactively classified. (183) Janine Brookner, a CIA-operative-turned-lawyer, reported similar threats in an interview with the Washington Post. She said the CIA sometimes "declassifies documents, only to reclassify them years later and demand that a plaintiff's lawyers give them back or be prosecuted." (184) And researcher Matthew Aid, who is in possession of hundreds of retroactively classified documents copied from the National Archives, said the threat of prosecution hangs over him like "the Sword of Damocles." (185) Still, none of these people has been prosecuted, which raises the question of whether the threats amount to anything real. "Is it a real threat?" Zaid asked. "Who knows? The problem is that nobody wants to be the one to risk it." (186) From a First Amendment standpoint, the mere threat of prosecution is significant because it has a chilling effect on protected speech, even if the threat has yet to be carried out. (187) Thus, the threat of prosecution cannot be dismissed so easily.

   2. Source/Distributor Divide

      With traditional leaks, the prosecutor's first task is often to separate the source from the distributor. As discussed above, prosecutors usually target the source and not the distributor (or the recipient). (188) Retroactive classification complicates even this simple dichotomy, however, by blurring the line between source and distributor. If I receive a document in response to a FOIA request and that document is retroactively classified the next day, what would I be considered if I proceed to publish the information? On the one hand, I might seem like a distributor because I passively received the document from the FOIA officer and then republished it. On the other hand, I could be considered a source because I am the one breaking the duty imposed by retroactive classification--the "obligation not to disclose the information." (189) I am the insider illicitly parting the curtain of secrecy. While the more likely interpretation is that I am the distributor, not the source, this definitional difficulty is one manifestation of the trouble that retroactive classification would pose for an Espionage Act prosecution.

   3. Espionage Act

      A prosecution based on retroactively classified material would also encounter problems satisfying the elements of the Espionage Act--problems beyond those discussed in the context of traditionally classified documents. (190) The most significant of these problems is that the Act covers only material that is "closely held" or secret. While the text of the Espionage Act does not mention classification status, the Supreme Court has interpreted the Act's reference to "information relating to the national defense" as a requirement that the information be secret. (191) "Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments," the Court explained, "there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government." (192) In this passage, we see the Court construct a dichotomy between information for which there is an "occasion for secrecy" and information "published by authority" of the government. The former can be the basis for an Espionage Act prosecution, while the latter cannot. But the distinction falls apart when applied to retroactively classified documents because they are published by the government and considered to be secret. The courts would have to decide which of these conflicting statuses--public or secret--prevails.

      A leading case from the Second Circuit emphasizes the problem. In United States v. Heine, the defendant reported to the Third Reich about America's industrial capacity, but his report was based entirely on public information. (193) The Second Circuit explained that the defendant's "information came from sources that were lawfully accessible to anyone who was willing to take the pains to find, sift and collate it." (194) In reversing the defendant's Espionage Act conviction, the Second Circuit held that it was "obviously lawful to transmit any information ... which the services had themselves made public" as well as any "information which the services have never thought it necessary to withhold." (195) The court said it would defer to the government's judgment about what information should be considered secret, and if the government made the information public, that would indicate the information was not sensitive. (196) But retroactive classification again raises a difficult problem for this dichotomy between public and secret, because retroactively classified documents were both "made public" and "thought ... necessary to withhold." (197) 198 In reviewing an Espionage Act prosecution, a court would have to decide whether the initial public release made the document conclusively public or whether that public status could be reversed by the retroactive classification.

      Finally, in 2000, the Fourth Circuit addressed a similar question in United States v. Squillacote. (198) The defendant, an East German-turned-Russian spy, challenged her conviction on the grounds that the information she transmitted was "available to the public" and thus "can never be considered national defense information." (199) In Squillacote, the information in the contested documents was available from a combination of public sources, but it had never been officially confirmed by the government. (200) Was this information public for purposes of the Espionage Act? The Fourth Circuit articulated the following test: regardless of what "unofficial," "unreliable" information may be in the public domain, "a document containing official government information relating to the national defense will not be considered available to the public (and therefore no longer national defense information) until the official information in that document is lawfully available." (201) In short, the court held that leaks and speculation do not remove information from the protection of the Espionage Act; only government releases can do that. But this raises a now-familiar problem when applied to retroactively classified documents because those documents used to be "lawfully available" but no longer are. Again, a court would have to decide whether to privilege the present secret status over the former public one.

   4. First Amendment

      The key analytical difference between prosecutions based on classified documents and those based on retroactively classified documents lies in how the First Amendment would apply in each case. With prosecutions based on traditionally classified documents, commentators rely on Bartnicki for the claim that the First Amendment would quash a prosecution. (202) But, as discussed above, Bartnicki's relevance has been contested because it applies only to instances where the receipt of information is lawful, whereas the Espionage Act criminalizes the receipt of classified documents. (203) In the context of retroactive classification, however, Bartnicki and several of its predecessors are even less applicable as they pertain to information that the media acquired on its own, whereas retroactive classification concerns information that the government itself disclosed. (204)

      The significance of the government's self-disclosure of information cannot be overstated. Instead of applying Bartnicki, the courts reviewing a retroactive classification prosecution would look to Bartnicki's predecessors that dealt with information disclosed by the government. Those cases, described below, wrestle with whether the government may punish those who publish information that the government has itself disclosed. These cases collectively articulate a disclosure principle: Once the government discloses information to the public, it cannot punish someone for republishing it except in the most extreme circumstances.

      The first of the cases to...