I posted this on another site earlier today, but wanted to add it here. It explains why James Rosen could not have leaked anything and he and Fox were protected by the First Amendment. It’s long, but I wanted to explain it fully because there has been too much ignorance displayed by idiots and/or apologists…
'He goes on to say that “the real problem is it’s not against the law to leak classified information.” Which is kinda sorta true — it’s against the law to leak information that’s injurious to national defense, which is a subset of classified information and which Holder used to justify his snooping on James Rosen.'
James Rosen didn’t ‘leak’ ANYTHING. He was never in a position to ‘leak’ ANYTHING. The ‘leak’ came from someone in government that had access to classified information.
A journalist CANNOT ‘leak’ classified information. He can only report information given to him. He or she is NOT an AUTHORISED INDIVIDUAL UNDER THE LAW. Furthermore, the First Amendment covers the PRESS, not the individual employed by the Federal government, who has signed a confidentiality agreement, acknowledgement that release of Classified X is a crime (which Bradley Manning DID on numerous occasions), or is an authorised individual under the law.
18 USC § 793 – GATHERING, TRANSMITTING OR LOSING DEFENSE INFORMATION
Likewise, (d) requires intent or reason to believe language, but it applies to authorised individuals…
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it;
(a)-(c) require intent to injure and/or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation. The government must prove mens rea and there is NO evidence that Rosen intended to injure or had reason to believe that reporting that North Korea will act like a spoiled-rotten child if it doesn’t get its way isn’t exactly releasing the plans of nuclear weapons. I don’t work for the government or have access to classified information and I could have told you the same thing. The NorKs have been behaving predictably since the 1990s.
18 USC § 798 – DISCLOSURE OF CLASSIFIED INFORMATION
(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.
(b) As used in subsection (a) of this section—
The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;
The terms “code,” “cipher,” and “cryptographic system” include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;
The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;
The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.
(c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any regularly constituted committee of the Senate or House of Representatives of the United States of America, or joint committee thereof.
Rosen did not ‘publish’ any classified information. He reported it and is, thereby, covered by the First Amendment.
Nor did Fox’s publication violate the law. In New York Times Co. v United States, 403 U.S. 713 (1971), the Supreme Court upheld the right of the press to publish the classified documents known as the Pentagon Papers.
The Court held that the ONLY way the government can preemptively prevent the publication of classified information is to show cause before a court of competent jurisdiction that the publication would cause a ‘grave and irreparable’ danger to the United States. For example, could the government have obtained a court order to restrain the New York Times from releasing nuclear weapons information obtained from the Rosenbergs prior to publication? More than likely. Could the government have obtained a court order to preemptively stop Rosen from reporting on North Korea? Highly, highly unlikely.
It’s really weird to see Leftists argue that Daniel Ellsberg should have been convicted and jailed for giving the Pentagon Papers to the New York Times and Senator Mike Gravel, who then read them on the floor of the Senate which made their disclosure bulletproof under the Speech & Debate Clause. Also, they are arguing that Teddy Kennedy and his staff should have been convicted of aiding and abetting the gathering and publication of the Pentagon Papers.
“At no time during the leak case involving Stephen Kim, before or after the FBI sought the search warrant, have prosecutors sought approval to bring criminal charges against the reporter.”
Old & Busted:
APPLICATION FOR A SEARCH WARRANT
I, a federal law enforcement officer or an attorney for the government, request a search warrant and state under penalty of perjury that I have reason to believe that on the following person or property:
[A]n email account (James Rosen’s account)@gmail.com, maintained on computer servers operated by Google, Inc. headquartered at 1600 Amphitheatre Parkway, Mountainview, CA, located in the Northern District of California, there is now concealed:
[C]ertain property, the disclosure of which is governed by Title 42, USC Section 2000aa, and Title 18, USC Sections 2701 through 2711, namely contents of electronic emails and other electronic data and more fully described in Attachment A to this application. The basis for the search under Fed. R. Crim. P. 41(c) is:
* evidence of a crime;
* contraband, fruits of crime, or other items illegally possessed;
* property designed for use, intended for use, or used in committing a crime
The search is related to a violation of:
18 USC § 793, Gathering, transmitting, or losing defence information (1)
The application is based on these facts:
See attached affidavit herein incorporated by reference as if fully restated herein. (2)
Applicant’s signature: Reginald B Reyes, Special Agent, FBI
Attorney General Eric Holder signed off on all of the above.
1. See my post Does The Left Now Wish Daniel Ellsberg Had Gone To Prison And The New York Times Had Never Published The Pentagon Papers? for why 18 USC § 793 was never in play with regard to James Rosen.
2. Pertinent parts of the Affidavit:
5. For the reasons set forth below, I believe that there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the (Reporter’s) Subject Account, are evidence, fruits and instrumentalities of criminal violations of 18 USC § 793 – Gathering, transmitting or losing defense information (Unauthorised Disclosure of National Defence Information, and that there is probable cause to believe that the Reporter has committed or is committing a violation of Section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.
54. Based on the foregoing, there is probable cause to believe that the Reporter has committed or is committing a violation of 18 USC 793 (Unauthorised Disclosure of National Defence Information), as an aider, abettor, and/or co-conspirator.
Section 793(d) could NOT have applied to Rosen BECAUSE HE IS NOT AN AUTHORISED PERSON UNDER THE ACT AND (d) ONLY APPLIES TO THE DISCLOSURE OF NATIONAL DEFENCE INFORMATION BY AUTHORISED INDIVIDUALS. Furthermore, it requires intent to injure and/or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation. Rosen’s reports told us nothing that we didn’t know back during the Clinton Administration. The NorKs are going to throw a tantrum and act like spoiled children if we don’t meet their demands. Wow! Reporting that is worse than ANYTHING the Rosenbergs ever did. OFF WITH HIS HEAD WITHOUT A TRIAL!!!
More importantly, as I explained above, the Supreme Court has upheld, in New York Times Co. v United States, 403 U.S. 713 (1971), the right of the press to publish the classified documents.