All American citizens and resident aliens (legal or illegal), and all corporations and unincorporated associations doing business in the United States, who publish classified information, which a reasonable person would consider to be classified, will be strictly (this one is critical – it eliminates the need to prove causation), jointly and severally liable for civil damages (payable to the victims who would have a private right of action) caused by ALL subsequent acts of terrorism occurring WITHIN the United States (not those occurring outside the U.S.) under the following circumstances:

a) The publication must have taken place during a period of hostilities authorized or recognized by Congress. There must have been at least a Congressional resolution authorizing the President to use military force – hostilities initiated and conducted by the President without Congressional approval will be insufficient – see The Powers of War and Peace by John Yoo. Publication of classified information in peacetime would not create liability.

b) The damage must have been caused by an individual who is not an American citizen, or a group acting in concert of which at least one individual is not an American citizen. Purely domestic terrorism would not trigger liability, even if the individuals involved are Muslim American citizens. It must be act of war or foreign terrorism in some fashion.

c) The acts causing the damage must constitute an act of war or terrorism as defined by statute. I believe there already are such statutes whose definitions can be incorporated within this legislation. This will exclude acts by the insane that use Islam as their excuse instead of receiving messages from Mars. As examples, the foreign Muslim student who drove his car into a North Carolina crowd to run down people is probably insane, while the Egyptian who attacked an El Al ticket counter in the Los Angeles airport was found, I believe, to be a terrorist. The plaintiffs bringing such lawsuits would have the burden of proving that they were injured by an act of terrorism. A formal designation by the U.S. government that a given act was a terrorist act, or act of war, would create a conclusive presumption that it was one but, in the absence of a federal designation, plaintiffs would still be able to prove that in court.

d) The President must have certified, prior to the acts of terrorism or war causing the damage (though certification can occur after the unauthorized disclosure), that the classified information published was material to national security and that its disclosure was unauthorized. There is a problem with overclassification (i.e., the adage that “classifying the time of day doesn’t make it a secret”), while federal officials often disclose classified information, with the intent that it be published, as part of their official duties. A requirement that the President certify that a given publication of classified information is or was material to national security will limit the reach of liability under this statute. Defendants would have an affirmative defense that disclosure and publication was authorized even if a President certifies that it wasn't, but may not dispute its materiality.

e) Punitive damages would be awardable based on findings of reckless disregard of the risk of injury to third parties (in addition to malice). A request by the President that the information not be published would create liability for punitive damages.

f) Judgments against corporations and unincorporated associations would not be dischargeable in bankruptcy, but those against individuals, including officers and directors of corporations and unincorporated associations, would be dischargeable in bankruptcy, i.e., offending businesses could not seek reorganization in bankruptcy. Judgments against those who disclose the classified information, i.e., those who signed an agreement giving them access to classified information, would not be dischargeable. Note that intentional torts are not dischargeable in bankruptcy. This statute would require a separate finding that the acts creating liability were done with malice or with reckless disregard of the consequences for punitive damage purposes, such that an award of punitive damages would result in the entire judgment being non-dischargeable

g) Liability would be retroactive to January 1, 2005, i.e., the New York Times’ publication of classified information in 2005 and 2006 will make it liable for any future acts of terrorism in the U.S. The Times has become an imminent threat to the lives of all Americans and its actions must be treated accordingly before it kills more of us. Times delenda est. This provision would be severable.

h) The statute of limitations would be ten years. I would specifically borrow the California rule that civil conspiracy tolls limitations – Wyatt v. Union Mortgage (1979) 24 Cal.3d 773, 786-789 – as conspiracy does not normally toll limitations under federal law.

i) There is a major problem with free speech – it is necessary to deny liability under this statute when the classified information is already public knowledge (once the New York Times publishes a given item of classified information, anyone else can republish it, link to it, etc., without the liability risk the Times runs). I would deal with this by giving corporations and unincorporated associations an affirmative defense that the classified information was already a matter of WIDESPREAD public knowledge (there are many secrets in classified documents which are publicly accessible in some fashion, but are not known, or little known, to terrorists who continue to act as though we aren’t intercepting their communications, tracking their financial transactions, etc.), while requiring that plaintiffs suing individuals prove in their case in chief that the classified information was in fact secret. This part of the statute will not be easy to write as individuals working in concert with news organizations, including their own employees, could misuse the additional protection given them here by publishing classified information first, and then have the news organizations repeat it under the guise of reporting public information. This is why civil conspiracy rules will be important, and quite possibly require changes to the normal rule that corporate employees cannot conspire with their corporate employer.

j) The free speech problem is worse than that given the known tactic of suing people to discourage them from speaking up on public issues, commonly called a Strategic Lawsuit against Public Participation (SLAPP). California resolves this with its Code of Civil Procedure section 425.16 – a special motion to strike with an attorney fee and cost-shifting clause. I would borrow this, with significant modifications, on the prior publication defense. This will probably be the most difficult part of the statute to write, and I won’t go into the details as this is not a legal blog. Federal officials who disclose classified information within the course and scope of their employment would be immune to liability, and would have a related special motion to strike with a similar attorney fee and cost-shifting clause.

In legal terms, the duty is defined as one not to publish classified information during a period of hostilities authorized by Congress, the breach of duty is the unauthorized intentional publication of classified information during that period (intentional = reasonable grounds to believe it is classified), proximate cause is created by this statute rather than normal civil tort principles, the scope of liability is created by this statute; and damages are defined as those inflicted within the United States by foreign enemies of the United States.

To survive attack on Constitutional grounds, there must be Congressional findings that it is difficult or impossible to show probable cause between publication of any given item of classified information and a specific act of war and terrorism, while publication of classified information does in fact enable foreign enemies to attack the United States.

This proposed statute is specifically intended to create a “chilling deterrent effect” on publication of classified information in wartime while being limited to foreign attacks in the United States. The New York Times would risk all its shareholders’ equity when publishing classified information that is material to national security, but only to those injured by subsequent acts of war or terrorism.

I’ve left out an enormous amount, but this is enough to start a discussion. I believe such a statute would withstand attack on Constitutional grounds. Its political feasibility is another matter, but a Congressional debate and votes on it would have significant political/electoral effects as well as having the desired chilling deterrent effect on news organizations’ publication of classified information. That is a good thing in wartime.