8 Near v. Minnesota, 283 U.S. 697 (1931).
9 The relevant section, 18 U.S.C. § 798, provides: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 not more than $10,000 or imprisoned not more than ten years, or both.
10 New York Times Co. v. United States, 403 U.S. 713, 1971 Lexis 100 (1971).
11 Sanford J. Ungar, The Papers & The Papers: An Account of the Legal and Political Battle Over The Pentagon Papers (New York: E. P. Dutton & Co., Inc., 1972). Disclosure: I represented Sanford Ungar, in his capacity as a Washington Post reporter, during the Pentagon Papers episode.
12 Whitney North Seymour, United States Attorney (New York: William Morrow and Co., 1975), p. 204.
13 My analysis of the Supreme Court’s Pentagon Papers opinion (New York Times Co. v. United States) and discussion of subsequent efforts by the Nixon administration to indict the newspapers appeared for the first time in my regular Boston Phoenix column. See Harvey A. Silverglate, “The Gray Lady in Shadow: Could publication of the domestic-spying story lead to indictment of The New York Times?” The Boston Phoenix, January 6, 2006, available at http://bostonphoenix.com/boston/news_features/other_stories/multi_5/documents/05188679.asp.
14 See, e.g., Daniel Ellsberg, Secrets: A Memoir of Vietnam and the Pentagon Papers (New York: Penguin, 2003), pp. 455-57; John Prados & Margaret Pratt Porter, eds., Inside the Pentagon Papers (Lawrence, Kansas: University Press of Kansas, 2004), p. 89.
15 Gabriel Schoenfeld, “Has The New York Times Violated the Espionage Act?” Commentary, March 2006.
16 The Classified Information Procedures Act (CIPA), which was promulgated in 1980 and amended since, designates what types of classified information and materials a defendant may seek. 18 U.S.C. app. III.
17 Harold Edgar & Benno C. Schmidt, Jr., “The Espionage Statutes and Publication of Defense Information,” Columbia Law Review, Vol. 73, No. 5 (May 1973). The quote is at p. 930.
18 Branzburg v. Hayes, 408 U.S. 665 (1972).
19 “The Reporters’ Privilege Compendium: An Introduction,” Reporters’ Committee for Freedom of the Press, available at http://www.rcfp.org/privilege/item.php?pg=intro (last accessed June 5, 2008). At the time of the Branzburg decision, only 17 states had reporter shield statutes. Steve Montiel, ‘Triumph of black journalists’–shield law lesson for today, San Francisco Chronicle, October 30, 2005, available at http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/10/30/INGH1FEJRG1.DTL.
20 28 C.F.R. § 50.10 and the United States Attorney’s Manual, § 9-2.161. Among other things, the guidelines provide that the Attorney General must approve subpoenas for testimony by news media, and that the subpoenas should be used to obtain only essential, not peripheral or speculative, information. The guidelines further state that all reasonable efforts to obtain the information from alternative sources must first be made.
21 United States v. Progressive, Inc., et al., 467 F. Supp. 990 (W.D. Wisc., 1979).
22 United States v. Progressive, Inc., et al., 486 F. Supp. 5, 8 (W.D. Wisc., 1979) (decision on defendants’ motion to reconsider and vacate prior restraint); see also Howard Moreland, “On the Progressive Case,” Presentation at Cardozo School of Law, March 2, 2004, available at http://www.fas.org/sgp/eprint/cardozo.html.
23 Ibid., 486 F. Supp. at 7.
24 Letter Bomb: Printing atomic ‘secrets’, Time, October 1, 1979, available at http://www.time.com/time/magazine/article/0,9171,947479-1,00.html.
25 David Rivkin & Bruce Sanford, “Outing Operatives, Jailing Journalists,” The Wall Street Journal, Dec. 14, 2004.
26 Theodore B. Olson, “Scandal,” The Wall Street Journal, Oct. 31, 2005.
27 Associated Press, “Fearing Legal Battle, Ohio Newspaper Holds Stories,” The Los Angeles Times, July 9, 2005, available at http://www.latimes.com/news/nationworld/nation/la-na-cleveland9jul09,1,4605149.story. See also David Cay Johnston, “Most Editors Say They’d Publish Articles Based on Leaks,” The New York Times, July 11, 2005.
28 Matt Welch, “Taking the Fifth: When journalists threaten our right to remain silent,” Reason, March 2005.
29 Lucy Dalglish, “Back to square one, 34 years later,” The News Media and the Law, Fall 2004, Volume 28, Number 4, at 1.
30 Stephen Labaton, “U.S. Subpoenas 2 Dow Writers, Then Backs Off,” The New York Times, Feb. 25, 2006, at A1.
31 Tom Brune, “Time Inc. gives up reporter’s notes,” Newsday, July 1, 2005, available at http://www.newsday.com/news/nationworld/nation/ny-usleakq4326425jul01,0,1931787. story.
32 Jacob Heilbrunn, “Start Me Up,” The New York Times Book Review, November 26, 2006 (reviewing Unanimous, I Hate Ann Coulter!, Simon Spotlight Entertainment, 2006).
33 Harvey A. Silverglate, “The Gray Lady in Shadow,” The Boston Phoenix, January 6, 2006.
34 See, for example, James Bamford, The Puzzle Palace: A report on America’s most secret agency (Boston: Houghton Mifflin, 1982); James Bamford, Body of Secrets: Anatomy of the ultra-secret National Security Agency: from the Cold War through the dawn of a new century (New York: Doubleday, 2001); and Patrick Radden Keefe, Chatter: Dispatches from the secret world of global eavesdropping (New York: Random House, 2005).
35 Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801 et seq.
36 Sacha Pfeiffer, “Extreme Souvenir: How I handed money to Maoist insurgents, and lived to worry about it,” The Boston Sunday Globe, “Ideas” section, December 30, 2007.
Chapter Eight:
1 The Espionage Act, 18 U.S.C. §§ 792-99.
2 John Cavanagh, then-director of the Institute for Policy Studies, wrote in an article published in 1980 that throughout the 1960s and possibly beyond “at least five Princeton professors worked secretly as high-level consultants for the CIA,” a fact discovered from the personal papers of former CIA Director (and Princeton alumnus) Allen W. Dulles. Dulles’s papers indicated that Princeton was far from alone among American universities in providing academic consultation to American intelligence specialists. And not all of these activities were even kept secret. One of the Princeton Professors, renowned Russian scholar James Hadley Billington, later the Librarian of Congress, admitted in 1968 to the undergraduate newspaper, The Daily Princetonian, that he consulted for the CIA’s Office of National Estimates “two or three times a year.” He described the papers submitted by him and his faculty cohorts as “broad and scholarly.” Fellow Princeton historian Cyril Black, who in 1976 had denied to the campus newspaper that he had ever been in the CIA’s “employ,” admitted to Cavanagh in 1980 (when Cavanagh gained access to the Dulles papers and the truth had emerged) that he had been a paid consultant. “Nobody ever asked me if I was a consultant,” Black explained, thus giving himself the leeway to deny the rumors that he was an “employee.” Rounding out the group were Professors Klaus Knorr, Joseph Strayer, and T. Cuyler Young, who met with Dulles four times a year “to assist with intelligence assessments for the CIA’s Office of National Estimates,” according to Cavanagh. Then-university President Robert F. Goheen knew of th
is, so it was not exactly a complete secret. John Cavanagh, “Dulles Papers Reveal CIA Consulting Network,” Forerunner, April 29, 1980, http://www.cia-on-campus.org/princeton.edu/consult.html. Many thanks to Craig R. Whitney for calling this piece to my attention. See also Tim Weiner, Legacy of Ashes—The History of the CIA (New York, Doubleday, 2007), discussing the role of numerous Ivy League academics in the work of the CIA.
3 Craig R. Whitney, Spy Trader: Germany’s Devil’s Advocate & the Darkest Secrets of the Cold War (New York: Times Books/Random House, 1993). Readers interested in more details of the Alfred Zehe prosecution and its diplomatic entanglements, as well as more generally of the remarkable career of Wolfgang Vogel, are directed to Mr. Whitney’s invaluable and fascinating volume, some details of which, however, Professor Zehe would disagree with. Whitney was the long-time European diplomatic correspondent for The New York Times.
4 United States v. Zehe, 601 F.Supp. 196, 1985 U.S. Dist. LEXIS 23053 (D. Mass. 1985). In an odd aside, Judge Nelson observed: “Finally, the defendant questions the policy implications of applying the Act to noncitizens who might merely have reviewed defense documents supplied to them by their respective governments. The Court does not find the defendant’s scenario likely. Under the statutorily defined crimes of espionage in sections 793 and 794, noncitizens would be subject to prosecution only if they actively sought out and obtained or delivered defense information to a foreign government or conspired to do so.” Zehe, 601 F.Supp. at 201. Of course, an academic who has an agreement with his government that he would make himself available to advise his government and help his government understand technological issues relating to national security would almost certainly be seen as a “conspirator” in any act of espionage engaged in by his government’s secret agents. The federal conspiracy laws, after all, are even broader and more vague than the espionage laws.
5 Daniel Golden, “After Sept. 11, the CIA becomes a force on campus,” The Wall Street Journal, October 7, 2002.
6 Guy Dinmore, “Pominent US scholar detained in Iran,” The Financial Times, May 9, 2007.
7 Id.
8 Ali Akbar Dareini, Associated Press, “Iran charges a noted scholar, 2 others from US with spying,” The Boston Globe, May 30, 2007.
9 Associated Press, “3rd Iranian-American Detained by Tehran, Which Hints at a Treason Plot,” The New York Times, May 24, 2007.
10 Katarina Kratovac, Associated Press, “Groups urge Iran to release detainees,” The Boston Globe, June 1, 2007.
11 “Iran: Another Iranian-American Scholar Detained; Crackdown Against Iranian Civil Society Intensifies,” Human Rights Watch, http://hrw.org/english/docs/2007/05/24/iran15993_txt.htm.
12 United States v. Lachman, 278 F.Supp. 2d 68, 2003 U.S. Dist. LEXIS 14636 (August 14, 2003).
13 Id. at 82.
14 Id. at 91 (quoting United States v. Reese, 92 U.S. 214 (1876)).
15 United States v. Anzalone, 766 F.2d 676, 681 (1st Cir. 1985); see also the discussion of the case of Theodore Anzalone in Chapter One.
16 Lewis Carroll, Through the Looking Glass, What Alice Found There (1986) (emphasis in the original), quoted by Judge Woodlock in footnote 45 of his Lachman opinion.
17 Lewis Carroll, Alice’s Adventures in Wonderland (Forum Books, New York, 1963), p. 159.
18 “This is right out of Hitler’s handbook,” The Guardian, Guardian Unlimited Website, October 20, 2005, http://arts.guardian.co.uk/features/story/0,11710,1596029,00.html.
19 Id.
20 David Staba, “Use of Bacteria in Art Leads to Investigation,” The New York Times, June 7, 2004.
21 Al Matthews, “SUNY Buffalo art: It’s not bio-terror, but is it illegal anyway?,” CNN Headline News, July 12, 2004, available at http://www.cnn.com/2004/SHOWBIZ/07/12/buffalo.art.
22 Critical Art Ensemble Defense Fund, “Frequently Asked Questions,” available at http://www.caedefensefund.org/faq.html.
23 18 U.S.C. § 175 (Prohibitions with respect to biological weapons).
24 David Staba, “Use of Bacteria in Art Leads to Investigation,” The New York Times, June 7, 2004.
25 18 U.S.C. § 1341 (mail fraud) and 18 U.S.C. § 1343 (wire fraud).
26 United States of America v. Steven Kurtz and Robert Ferrell, Indictment No. 0~CR-155E (W.D.N.Y. 2004).
27 Serratia marcescens is ubiquitous in the environment and is commonly found growing in bathrooms, especially on tile grout. It is also found in dirt and on teeth below the gums. Bacillus atrophaeus, while benign, is used to test antibiotics against anthrax, its morphologically similar but deadly bacteriological cousin. Hence, there was no charge possible that would depend to any degree on a claim of dangerousness to public health. The organisms most commonly used for biowarfare and bioterrorism are anthrax, botulinum toxins, brucellosis, cholera, clostridium perfringens toxins, congo-crimean hemorrhagic fever, ebola haemorrhagic fever, melioidosis, plague, Q fever, ricin, rift valley fever, sanitoxin, smallpox, staphylococcal enterotoxin B, trichothecene mycotoxin, tularemia, and Venezuelan equine encephalitis. In contrast to these deadly pathogens, the harmless organisms possessed by Kurtz have never been used as a destructive agent in war or terrorism. Instead, they are used to test the capabilities of anti-biowarfare air purifiers. See http://www.sanuvox.com/PDF%20Brochures/EPA_Homeland_Security_Sanuvox.pdf.
28 http://newstandardnews.net/content/?action=show_item&itemid=646.
29 Id.
30 http://www.nytimes.com/2004/06/29/science/29cont.html.
31 http://www.caedefensefund.org/letters.html.
32 http://www.buffalonews.com/editorial/20040707/3028537.asp.
33 http://newstandardnews.net/content/?action=show_item&itemid=646.
34 Al Matthews, “SUNY Buffalo art: It’s not bio-terror, but is it illegal anyway?” CNN Headline News, available at http://www.cnn.com/2004/SHOWBIZ/07/12/buffalo.art.
35 Order dated April 21, 2008, United States of America v. Steven Kurtz, No. 04-CR-0155A, United States District Court for the Western District of New York, by the Honorable Richard J. Arcara, Chief Judge, 12-page slip-sheet opinion.
36 Chief Judge Arcara wrote that he “passes no judgment on whether the indictment could have been drafted in such a way, based on the facts and circumstances as they have been presented here, to allege sufficiently a ‘no-sale’ theory of fraud.” The judge simply found “that the indictment, as currently written, fails to allege such a theory.”
37 Maureen O’Hagan, “A terrorism case that went awry,” The Seattle Times, Nov. 22, 2004.
38 Betsy Z. Russell, “Feds drop charges in deal that sends Al-Hussayen home,” The Spokesman Review, July 1, 2004.
39 Maureen O’Hagan, “A terrorism case that went awry,” The Seattle Times, Nov. 22, 2004.
40 Id.
41 As one federal court in Washington observed, “The Patriot Act was passed…with relatively little debate or discussion.” United States v. $6,976,934.65 Plus Interest, 478 F.Supp.2d 30, 42 (D.D.C., 2007).
42 Maureen O’Hagan, “A terrorism case that went awry,” The Seattle Times, Nov. 22, 2004.
43 Id.
44 See Brandenburg v. Ohio, 395 US 444 (1969).
45 United States of America vs. Sami Omar al-Hussayen, Case No. CR03-048-C-EJL (United States District Court for the District of Idaho), Jury Instructions, June 1, 2004, Instruction No. 48.
46 Maureen O’Hagan, “A terrorism case that went awry,” The Seattle Times, Nov. 22, 2004.
47 Betsy Z. Russell, “Al-Hussayen acquitted in terror case,” The Spokesman Review, June 11, 2004, available at http://www.spokesmanreview.com/local/story. asp?ID=10124&page=all.
48 Steve Coll, Ghost Wars: The secret history of the CIA, Afghanistan, and bin Laden from the Soviet invasion to September 10, 2001 (New York: Penguin, 2004), at 70.
49 I participated in the legal team that defended Muntasser and was responsible, in part, for analyzing the extent to which the prosecution indirectly sought to punish constitutionally protected religious and political vie
ws.
50 Organizations seeking exempt status must file IRS Form 1023 outlining their reasons for requesting such status. When Muntasser signed and submitted the form in 1993, he wrote on Form 1023 that the organization would be devoted to “provid[ing] assistance to victims of natural and man-made disasters…primarily in Bosnia and later in African countries. …[and] develop [ing] a program for orphan sponsorships.” See United States v. Muhamed Mubayyid et al., Superseding Indictment (March 8, 2007), Crim. No. 05-40026-FDS (D. Mass. 2007) at 3.
51 Exempt organizations include “…any fund, or foundation, organized and operated exclusively for religious [or] charitable [or several other] purposes …” with several exceptions not relevant to Care International’s work. 26 U.S.C. § 501(c)(3); see also C.F.R. §1.501(c)(3)-1(c)(1) (“An organization will be regarded as operated exclusively for one or more exempt purposes only if it engages primarily in activities which accomplish one or more of such exempt purposes specified in section 501(c)(3).”). Charitable organizations are defined as having primary missions, such as “relief of the poor and distressed or of the underprivileged; [or] advancement of religion,” among other relevant exemptstatus charitable activities. 26 C.F.R. § 1.501(c)(3)-1(d)(2).
52 Bench decision on Rule 29 motion for judgment of acquittal and Rule 31 motion for a new trial, United States v. Mubayyid et al., June 3, 2008, Crim. No. 05-40026-FDS (D. Mass. 2007) at 7.
53 Id. at 3 (“There was substantial evidence at the trial that all three defendants supported and promoted jihad and the mujahideen, that is, religious-based violence and people who engage in it through newsletters, financial donations, lectures and otherwise; although in fairness, there was no evidence that they provided lethal aid or similar support to any fighters.”)
54 Testimony of Marcus Owens, trial transcript in United States v. Mubayyid et al., December 17, 2007 (day 22), Crim. No. 05-40026-FDS (D. Mass. 2007) at 92.
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