Inquisition Two

June 12, 2012 § Leave a comment

I think the GOP is hoping to convert the search for the Phantom Leaker into a Watergate scandal.  After I expressed my initial reaction to this, I noticed a NY Times article that added more evidence that this effort is not focused on rooting out and punishing criminal behavior.  Here is a link to the article:  Classified Information.  It turns out (I didn’t know this) that disclosing “classified information” is not a crime.

Designating information as “classified” is a discretionary function of the executive branch.  Because it is not based on a law, violating limitations on its disclosure is not a crime.  So all this breathless demand for appointing an “independent counsel” to track down the traitorous wretch who babbled to a reporter is mostly BS.

If the disclosure was done to arm a hostile nation with information potentially harmful to the security of the United States, then and only then is it a crime because it would then violate the Espionage Act, which is designed to punish foreign agents or domestic traitors who try to undermine or threaten the safety of our country.

That’s why “classified information” is often leaked but seldom prosecuted.  The reason is simple:  the leak is seldom likely to threaten the security of the U.S. and, even if it is, proving that its disclosure was intended to do that or so likely to do that that the leaker surely knew that it would have that result,  is usually impossible for the simple reason that that it is usually not true.

The old WWII slogan, “A Slip of the Lip Can Sink a Ship” with an accompanying graphic of a torpedoed US war ship does not apply.

So prosecutors, goaded to file a criminal charge without evidence to support it, fall back on the “deposition trap”:  Just interview enough hapless government employees  and one or more of them, either from nervousness or a misguided effort to protect some friend or avoid some embarrassment that might result in a public reprimand and, hence, sink future promotional opportunities, will make an inaccurate statement and, thereby, subject themselves to prosecution.  When that trap has been sprung, the victim can often be pressured into a guilty plea in exchange for avoiding jail or the expense and collateral damage of a criminal trial.

I know there are good reasons to protect classified information, but I still believe that we suffer more from too much secrecy than we do from too much disclosure.  And I don’t like the “bank shot” strategy that typifies these prosecutions.

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