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That's not what that doctrine means; information being classified and individuals having a duty to protect it are two distinctly different things. Imposing a du

That's not what that doctrine means; information being classified and individuals having a duty to protect it are two distinctly different things. Imposing a duty to protect classified information on Americans who have not signed a national security NDA would be a breach of their first amendment rights. The rules are obviously totally different for people who hold or have held a clearance, but the legal basis for those rules is the NDA signed by those people. This is fundamentally different than e.g. the British approach, where the official secrets act applies to everyone whether or not they have signed it. It's also the case that while the doctrine of born secret has not been tested in court, it is generally regarded as unconstitutional and likely to be struck down by the courts of they are given the opportunity.

pyuser583 5y ago
Everything I’ve ever read about the “born secret” doctrine says that it obliges non-cleared people to keep secrets. Most of what I’ve read emphasized how controversial this is. As you said, there are severe first amendment implications. Yet the law ignores these implications. It is probably unconstitutional, but the SCOTUS has never ruled on it. I hate to be the guy saying “cite your sources,” but I have quite a few sources that say “born secret” applies to everyone. Can you show me some evidence it doesn’t? This source is about a related, but distinct, topic. It contains numerous example of the US government attempting to obligate non-cleared people to keep official secrets: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9475&context=penn_law_review https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl... This source is a Wikipedia page, but it describes the government attempting to use “born secret” to censor a newspaper: https://en.m.wikipedia.org/wiki/United_States_v._Progressive,_Inc https://en.m.wikipedia.org/wiki/United_States_v._Progressive.... PS: From the first source: In 1978, journalist James Bamford sent a Freedom of Information Act (FOIA) request to the Justice Department. He wanted documents related to the Department’s investigation of illegal wiretapping performed by the NSA. Among the surveillance programs the Justice Department investigated was Operation MINARET, which spied on Martin Luther King, Jr., Jane Fonda, and other opponents of the Vietnam War. The chief of the Justice Department’s special litigation unit, the unit that led the investigation into the NSA, took ten months to review the request. In the end, the Justice Department declassified and released 250 pages of documents to Bamford. When the NSA found out about the disclosure, however, it argued that the documents should never have been released and demanded that the Justice Department label them as classified. The Justice Department refused. Two years later, with a new administration in the White House and new leaders atop the two agencies, the NSA tried again. This time, the Attorney General agreed. Bamford recalled a meeting with NSA and Justice Department officials. “They threatened to use the espionage statute against me,” Bamford recounted, “if I continued to refuse to return the documents.” A letter from the Justice Department soon followed: “You are currently in possession of classified information that requires protection against unauthorized disclosure,” it said, adding that Bamford should be aware of his “continuing obligation not to publish or communicate the information.”Keeping quiet was not enough for the Justice Department, however. “It is . . . your duty and obligation as a United States citizen to return this information to the Department of Justice,” the letter insisted.
- akiselev 5y ago
  > Yet the law ignores these implications. Is that surprising? There's no physical law forcing legislators to write Constitutional laws or the executive branch to enforce them. They're just empty words until people actually implement them and then it's up to the Judiciary to review those implementations and resolve the ambiguities and inconsistencies between the laws and the real world. Unfortunately, there's nothing stopping bad laws from destroying lives on their way through courts, which often takes decades. The Supreme Court hasn't decided the constitutionality of the born secret doctrine because the real world hasn't presented an opportunity. A core constitutional restriction of the courts is that they can't legislate, only rule on the cases that go before them. The doctrine has been abandoned by the government when push came to shove, likely because it knew the doctrine is indefensible before SCOTUS and only useful for the threat of litigation and criminal charges against civilians.
- Godel_unicode 5y ago
  > I have quite a few sources that say “born secret” applies to everyone No, you don't. The government can ask you to do a great many things. They can use big, scary words that are designed to coerce you to do it. But that's not the same thing as being legally compelled to do it. No charges were filed, there was no prosecution, and he's not in jail. Strongly worded letters are worth approximately the paper they're written on.

pyuser583 5y ago

Everything I’ve ever read about the “born secret” doctrine says that it obliges non-cleared people to keep secrets. Most of what I’ve read emphasized how controversial this is. As you said, there are severe first amendment implications. Yet the law ignores these implications. It is probably unconstitutional, but the SCOTUS has never ruled on it. I hate to be the guy saying “cite your sources,” but I have quite a few sources that say “born secret” applies to everyone. Can you show me some evidence it doesn’t? This source is about a related, but distinct, topic. It contains numerous example of the US government attempting to obligate non-cleared people to keep official secrets: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9475&context=penn_law_review https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl... This source is a Wikipedia page, but it describes the government attempting to use “born secret” to censor a newspaper: https://en.m.wikipedia.org/wiki/United_States_v._Progressive,_Inc https://en.m.wikipedia.org/wiki/United_States_v._Progressive.... PS: From the first source: In 1978, journalist James Bamford sent a Freedom of Information Act (FOIA) request to the Justice Department. He wanted documents related to the Department’s investigation of illegal wiretapping performed by the NSA. Among the surveillance programs the Justice Department investigated was Operation MINARET, which spied on Martin Luther King, Jr., Jane Fonda, and other opponents of the Vietnam War. The chief of the Justice Department’s special litigation unit, the unit that led the investigation into the NSA, took ten months to review the request. In the end, the Justice Department declassified and released 250 pages of documents to Bamford. When the NSA found out about the disclosure, however, it argued that the documents should never have been released and demanded that the Justice Department label them as classified. The Justice Department refused. Two years later, with a new administration in the White House and new leaders atop the two agencies, the NSA tried again. This time, the Attorney General agreed. Bamford recalled a meeting with NSA and Justice Department officials. “They threatened to use the espionage statute against me,” Bamford recounted, “if I continued to refuse to return the documents.” A letter from the Justice Department soon followed: “You are currently in possession of classified information that requires protection against unauthorized disclosure,” it said, adding that Bamford should be aware of his “continuing obligation not to publish or communicate the information.”Keeping quiet was not enough for the Justice Department, however. “It is . . . your duty and obligation as a United States citizen to return this information to the Department of Justice,” the letter insisted.

akiselev 5y ago
> Yet the law ignores these implications. Is that surprising? There's no physical law forcing legislators to write Constitutional laws or the executive branch to enforce them. They're just empty words until people actually implement them and then it's up to the Judiciary to review those implementations and resolve the ambiguities and inconsistencies between the laws and the real world. Unfortunately, there's nothing stopping bad laws from destroying lives on their way through courts, which often takes decades. The Supreme Court hasn't decided the constitutionality of the born secret doctrine because the real world hasn't presented an opportunity. A core constitutional restriction of the courts is that they can't legislate, only rule on the cases that go before them. The doctrine has been abandoned by the government when push came to shove, likely because it knew the doctrine is indefensible before SCOTUS and only useful for the threat of litigation and criminal charges against civilians.
Godel_unicode 5y ago
> I have quite a few sources that say “born secret” applies to everyone No, you don't. The government can ask you to do a great many things. They can use big, scary words that are designed to coerce you to do it. But that's not the same thing as being legally compelled to do it. No charges were filed, there was no prosecution, and he's not in jail. Strongly worded letters are worth approximately the paper they're written on.