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JohnJStephens
10-08-2005, 09:26 PM
Following consulations with a forum moderator, I was given the go-ahead to post this question. Full responsibility for this is, of course, mine.

The Pentagon Papers, a top secret United States Department of Defence document, was leaked to the New York Times in 1971 (see http://en.wikipedia.org/wiki/Pentagon_Papers for further details). The New York Times and Washington Post subsequently published excerpts. The aforementioned Wikipedia article describes all the legal wrangles that took place before the newspapers' right to publish was upheld.

My question is, what are the general principles behind the publication of leaked documents which were intended to be kept secret? Does the law distinguish between, say, Department of Defence, Police and Military Documents, for example?

Also, do the circumstances behind the leak play a part? If, for example, a journalist broke the law to obtain the documents, would that prevent the publication of the leaked documents?

In a similar vein, are there any special rules of evidence related to such documents, in a civil case such as a libel action? In what circumstances would evidence, based on such documents, be ruled inadmissable?

Richard
10-08-2005, 10:31 PM
If you don't have permission to publish, you've got to make a really, really, really good claim of public interest to even think about getting away with it.

JohnJStephens
10-08-2005, 11:35 PM
Richard, I see that you are based in the U.K. like me. Just to avoid any misunderstandings (and I should have made this clear) I am only concerned about U.S. law here. Although I am not a lawyer, I know that prior restraint (such as a U.K. style injunction for breach of confidence) is rarely imposed in the U.S, because of First Amendment implications. I am just wondering what the rules are.

Jaws
10-09-2005, 07:09 PM
I'm not going to comment substantively on this. The most balanced and complete discussion for non-lawyers is probably Prados & Porter's Inside the Pentagon Papers (http://www.kansaspress.ku.edu/prains.html)—but it assumes a pretty high level of legal sophistication for nonlawyers!

These are always fact-bound inquiries, and drawing a "rule" from one set of circumstances and applying it to another is fraught with peril and not for the amateur. This is actually one of the most difficult areas of First Amendment law—and it is certainly the area of First Amendment law on which there is the least coherent philosophy, in terms of either the philosophy itself or consensus.

JohnJStephens
10-09-2005, 08:44 PM
Thanks Jaws.
I understand your caution, and fully appreciate that this is not an area for an amateur. But I'm a curious sort of guy, even though I'm a Brit non-lawyer, and I do not easily let go :-)
I would be interested to see one single U.S. case (anywhere!) in which a prior restraint application was upheld, simply because the material to be published was based on ilegally leaked documents, as opposed to (say) national security or obsenity considerations.
Please do not think I am seeking to undermine your warnings about this being fraught with peril, and not for the amateur. I am not, and as a Brit non-lawyer I would be totally insane to do so.
Maybe I'm just too curious for my own good :-)
But I fully appreciate your concern for non-lawyers who might over-rely on this discussion, so it is probably best to discontinue the thread at this point.

PhosphurBurnedEyes
10-10-2005, 02:46 AM
Looked like an interesting thread to me shame you're cutting and running from researching such an interesting plot detail. ;-)
Are all the parties US citizens resident in the US?

JohnJStephens
10-10-2005, 10:35 AM
It's not a plot detail. I am very curious about the status of leaked files in the U.S. because I am seeking a publisher for a book that is based on these files. At one point Jaws cut off a previous thread because, apart from other things, he was concerned that I was somehow incriminating myself. This is not the case, as explained below.

The case files in question are not in my possession; they are in the hands of journalists in Belgium. This is not a secret. The leak (actually two distinct leaks) were discovered and the policeman responsible for the first leak, was convicted of a serious criminal offence, and was lucky to escape jail. The leaks were a major story in themselves in Belgium. That the leaks took place, with the documents now in the hands of journalists, and the name of the policeman responsible of at least one of the leaks, are therefore facts in the public domain. The journalists in Belgium committed no crime, under Belgian law, because they had not incited the policeman in any way. They have since gone on to quote verbatim from the case file, and provide precise references to the document quoted, in a series of newspaper articles, because nothing in Belgian law prevents this.

But my personal situation here is tricky. Not from the Belgian point of view. I do not live there for a start, and my Belgian wife (who is a lawyer) keeps me on the straight and narrow as far as Belgian law is concerned. But I want the book to be published in the U.S. and the case file, and my access to it, is the query letter 'hook' which will (hopefully) get agents/publishers interested. It also provides the proof for the claims that I make in the book.

If I, or a publisher, could be prevented from quoting extensively from the case files, then my book project is dead in the water.

This is, of course, entirely separate from any libel issues which might arise from publication. Just because no-one can prevent you from publishing, does not mean that you escape the legal consequences of your actions.

PhosphurBurnedEyes
10-11-2005, 03:27 AM
It's not a plot detail. I am very curious about the status of leaked files in the U.S. because I am seeking a publisher for a book that is based on these files. At one point Jaws cut off a previous thread because, apart from other things, he was concerned that I was somehow incriminating myself. This is not the case, as explained below.


Well that was my too subtle hint that you could just suggest it was a plot detail to avoid any incrimination.



The case files in question are not in my possession; they are in the hands of journalists in Belgium. This is not a secret. The leak (actually two distinct leaks) were discovered and the policeman responsible for the first leak, was convicted of a serious criminal offence, and was lucky to escape jail. The leaks were a major story in themselves in Belgium. That the leaks took place, with the documents now in the hands of journalists, and the name of the policeman responsible of at least one of the leaks, are therefore facts in the public domain. The journalists in Belgium committed no crime, under Belgian law, because they had not incited the policeman in any way. They have since gone on to quote verbatim from the case file, and provide precise references to the document quoted, in a series of newspaper articles, because nothing in Belgian law prevents this.

But my personal situation here is tricky. Not from the Belgian point of view. I do not live there for a start, and my Belgian wife (who is a lawyer) keeps me on the straight and narrow as far as Belgian law is concerned. But I want the book to be published in the U.S. and the case file, and my access to it, is the query letter 'hook' which will (hopefully) get agents/publishers interested. It also provides the proof for the claims that I make in the book.

If I, or a publisher, could be prevented from quoting extensively from the case files, then my book project is dead in the water.

This is, of course, entirely separate from any libel issues which might arise from publication. Just because no-one can prevent you from publishing, does not mean that you escape the legal consequences of your actions.

Ah this is the Dutroux book which sounds fascinating BTW.

Have the Belgium journos ever had any threat of legal action, complaint, etc, in their quoting of this file? Or just for possessing it?
Who do you believe would be the most likely parties to try and prevent this quoting? Actually answer that one vaguely, no names, but location please.
Didn't the domestic Belgium response to this oust everyone responsible?

As you've noticed it's complicated, but I have some chums who might be able to find a proper legal response to this, if they can I'll share it with you. My skimpy first thoughts would be to identify who might get litigious and then try to find out if they would. IME most legal threats are sabre rattling and there's no harm in having sabres of your own ready. With chums in Belgian journalism I'd say you could manage this project without danger of legal action. Sounds like a publishers PR dream the more I humbly consider it.

AdamMac
10-11-2005, 07:31 AM
Hi.


I don't think you have any serious legal problems - especially if you're using leaked documents that have already been published to some degree.

Valerie Plame was an undercover CIA agent. There. I said it. It was leaked (and leaked and leaked) and the leakers are the subject of an ongoing high-level investigation in the United States. Nobody's gonna sue me. She has been outed and the focus now is on how it happened.

Also, your case sounds like the leak had some justification. One could argue it was in the public interest and not simply a settling of scores.

I'm a journalist (a Canadian working for US media) and we usually leave such fine-tuning to the lawyers who will peruse our writing before publication.

Your case doesn't even ring alarm bells for me. Ask a lawyer, by all means, but I think you're fine.

By the way, I think your book can be great. I'll buy it.

Adam

JohnJStephens
10-11-2005, 12:16 PM
Well that was my too subtle hint that you could just suggest it was a plot detail to avoid any incrimination.And a very good hint it is, looking at it now. My problem is that I am as subtle as a brick :-(

JohnJStephens
10-11-2005, 01:34 PM
Have the Belgium journos ever had any threat of legal action, complaint, etc, in their quoting of this file? Or just for possessing it?No, the legal position in Belgium is quite clear. A criminal investigation is led by an investigating magistrate. While the investigation is taking place a legal notion called (in French) 'le secret d'instruction' applies. In French 'instruction' means 'investigation', in this context. Once the investigation is complete different rules apply, even if the subsequent trial has not yet taken place. These rules are unambiguous; no crime was committed by the journalists for mere possession, or quoting from the files. The only case of prior restraint which was applied (ie a UK-style court injunction) was when a Brussels based publication called 'The Sprout' went ahead and printed post-mortem photos of two of the dead children. The Belgian authorities made a successful application to prevent the publication going on sale, a decision I wholeheartedly applaud.


Who do you believe would be the most likely parties to try and prevent this quoting? Actually answer that one vaguely, no names, but location please. As I said, preventing quoting has not been an issue in Belgium, as far as the law is concerned. Libel laws are a different kettle of fish, of course. Even though the laws in Belgium are far from draconian, no-one has stuck their neck out when it came to the 'big names.' I do not believe that there is a conspiracy here, however (although some people do). Most Belgian publications are running at a loss or are barely break-even, and this makes them risk-averse.


Who do you believe would be the most likely parties to try and prevent this quoting?The most black and white case relates to a certain individual and his brother. This individual is also the one I worry about most, when it comes to seeking publication in the U.S. He is an extremely wealthy man in his own right, is chairman of one of Europe's largest financial institutions, received a hereditary title from the king (who is a personal friend) and enjoys enormous power and influence worldwide. He has attended at least one Bilderberg meeting (I mention this merely to show how well connected he is, I have little time for all the Bilderberg conspiracies). He is a close (and I mean, really close) personal friend of the chairman of the Bilderberg group.

This individual, and his brother, were the subject of very serious allegations. These allegations were made by independent witnesses, who did not know each other. What the case files reveal is that the brothers were being thoroughly investigated for a time, but this investigation was suspended because the policemen leading the enquiry were accused of a lack of professionalism. What makes the case like something out of Kafka, is the fact that the policemen were cleared of these accusations, after a lengthy enquiry during which the investigation remained suspended. They were even congratulated for their outstanding professionalism; all charges against them were without foundation.

Now these brothers were, in a sense, very unlucky. Their alleged activities came to light when all hell was let loose in Belgium, following the arrest of Marc Dutroux. The detectives were given, in the first few weeks, unprecedented powers, and they used them. And it just so happened that they looked under one particular nasty rock, and these brothers, together with their influential friends, crawled out...

Did the brothers call upon every favour they were owed? Pull every string? Use every weapon in their very considerable armoury to ensure that the investigation crawled to a halt? There is no proof of that, but what is certain is that it was outrageous that pure logic was not applied after the policemen, who led the enquiry into the brothers, were cleared of wrongdoing. The investigation was, after all, only suspended while policemen themselves were under scrutiny. But it is still suspended today, gathering dust...

The case is not closed, because even the Belgian authorities would not dare do that, so it remains in suspended animation, in the cellar of a courthouse of a small town in southern Belgium.

And no-one would have been any the wiser until a profoundly upset policeman made the most fateful decision of his life, and leaked a copy of the case file to journalists...


Didn't the domestic Belgium response to this oust everyone responsible?The really important details of the case files never came out. The newspapers printed extracts, sure, but they were generally 'safe' ones. The photos of the police reconstructions, with Marc Dutroux acting as himself, with actresses or dummies playing his victims, were splashed over the front pages of all Belgian newspapers. But there was very little reporting of the scandals that the case files revealed. The two brothers were not even mentioned indirectly in the Belgian press.

One enormous advantages of going the U.S. route, I have been told, is that this individual will be considered a public figure as far as U.S. libel laws are concerned. Even though a judge has to decide if he qualifies (an element of uncertainty, admittedly) there is no doubt whatsoever that my guy fits the bill. Which means that he could only sue if he proves that I am publishing a deliberate falsehood, or am reckless as to its truth. This is a very difficult thing to prove, and is emphatically not the case anyway.

It must not be forgotten, however, that wholesale reforms of the criminal justice system did take place, following the Dutroux debacle. The police were reformed from top to bottom, for example. But only two ministerial resignations took place, and this was when Marc Dutroux escaped from prison (by a stroke of luck he was rearrested a few hours later). The trouble is that, although the Belgian police were sometime guilty of spectacular incompetence, they served as a highly convenient, and universal, scapegoat.


By the way, I think your book can be great. I'll buy it.Well thanks, Adam :-) I hope I will at least get past the query letter stage. As for the perceived quality of the ms itself, I will just have to wait and see.

Jaws
10-11-2005, 06:59 PM
This thread has morphed back into the one I recommended be shut down. And I recommend that for precisely the same reasons.

Bluntly (and I don't particularly care if someone is offended): Mr Stephens's position is of some interest, but it doesn't belong here. Not only is he harming his own legal interests by telling his side of the story, he is potentially making AW subject to at minimum a subpoena for its facilitation of a potentially unlawful disclosure through hosting the discussion—under Belgian law. (Contrary to Mr Stephens's assertions, prior restraint is far from uncommon under Belgian law; it appears that he doesn't know where to look.)

Please do not try to resurrect this discussion under another topic or heading. Please do not accuse me of wanting to suppress the story; I just want it in its place (a place that harms nobody's interests for merely displaying the story). This entire inquiry belongs inside attorney-client privilege, and nowhere else.

JohnJStephens
10-11-2005, 08:04 PM
OK Jaws, point taken. But I don't care who I offend either, so please take note of the following.

1. I repeat AGAIN that I am perfectly well aware of my legal position, from a Belgian point of view. I repeat, no law has been broken, apart from by the person who leaked the documents in the first place. This is not my personal view, it is based on legal advice. From lawyers. If you don't want to believe me, fine.

2. Where did I claim that prior restraint is unusual under Belgian law? As far as I am aware, I only made such a claim about U.S. law. I pointed out that, as far as the Dutroux case files was concerned, only one such case arose, but that is not the same as maintaining that it is unusual under Belgian law. For your information, Belgium falls between the U.S. (unusual) and the U.K. (common).

3. It is a very difficult balancing act to decide when to suppress a thread because non-experts might get the wrong end of the stick.

4. I disagree with you that general questions regarding prior restraint, in cases of leaked documents, should necessarily be in an attorney-client relationship. You may not wish to answer, but there are general principles at stake here, and I (or anybody else) am entitled to ask them. Michael Jackson's mug shot and leaked documents, during the trial, made many U.K. commentators ask the question 'what is going on here? this would be impossible in the UK!' The answer, of course, comes down to the First Amendment. Sure, there are client specific aspects. No-one is suggesting that everyone discards their lawyers! But this does not means that people may not enquire about the underlying principles.

And this does not mean that this is in any way reckless on my part. I run a multinational software company which I built up from scratch. It has taken me a long time to do it. Neither I, nor my company, have ever been sued. Nor do I have a criminal record. While not being a lawyer, the nature of my work means that I spend a great deal of time with them. And one thing I learnt was that by developing a respect for the law, learning as much about the law as possible, but recognizing when you cannot call the shots yourself (and therefore need professional advice) gives you an enormous commercial advantage. And although it superficially seems that the subject of my book has nothing to do with my professional life, this is not entirely true. This is one subject, however, in which I cannot go into details.

But your point about a potential subpoena hits home perfectly. I would never want to course any trouble to AW. So we will stop there, unless your care to reply. It will not be resurrected (by me, at least).