Criminal Prohibitions on the Publication of
Classified Defense Information
Jennifer K. Elsea
Legislative Attorney
September 10October 18, 2010
Congressional Research Service
7-5700
www.crs.gov
R41404
CRS Report for Congress
Prepared for Members and Committees of Congress
Criminal Prohibitions on the Publication of Classified Defense Information
Summary
The recent online publication of classified defense documents by the organization WikileaksWikiLeaks and
subsequent reporting by the New York Times and other news media have focused attention on
whether such publication violates U.S. criminal law. The Attorney General has reportedly stated
that the Justice Department and Department of Defense are investigating the circumstances to
determine whether any prosecutions will be undertaken in connection with the disclosure.
TheThis report identifies some criminal statutes that may apply, but notes that these have been used
almost exclusively to prosecute individuals with access to classified information (and a
corresponding obligation to protect it) who make it available to foreign agents, or to foreign
agents who obtain classified information unlawfully while present in the United States. Leaks of
classified information to the press have only rarely been punished as crimes, and we are aware of
no case in which a publisher of information obtained through unauthorized disclosure by a
government employee has been prosecuted for publishing it. There may be First Amendment
implications that would make such a prosecution difficult, not to mention political ramifications
based on concerns about government censorship. To the extent that the investigation implicates
any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may
carry foreign policy implications related to the exercise of extraterritorial jurisdiction.
This report will discuss the statutory prohibitions that may be implicated, including the Espionage
Act; the extraterritorial application of such statutes; and the First Amendment implications related
to such prosecutions against domestic or foreign media organizations and associated individuals.
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Criminal Prohibitions on the Publication of Classified Defense Information
Contents
Background ................................................................................................................................1
Statutory Protection of Classified Information .............................................................................2
The Espionage Act ................................................................................................................2
Other Statutes .......................................................................................................................5
Analysis................................................................................................................................6
Jurisdictional Reach of Relevant Statutes ....................................................................................7
Constitutional Issues ...................................................................................................................9
Conclusion................................................................................................................................ 1415
Contacts
Author Contact Information ...................................................................................................... 15
Congressional Research Service
Criminal Prohibitions on the Publication of Classified Defense Information
T
he recent online publication of classified defense documents by the organization Wikileaks
WikiLeaks and subsequent reporting by the New York Times, the Guardian (UK), and Der Spiegel
Spiegel (Germany) have focused attention on whether such publication violates U.S.
criminal law.
The Attorney General has reportedly stated that the Justice Department and
Department of
Defense are investigating the circumstances to determine whether any
prosecutions will be
undertaken in connection with the disclosure,1 but has not released sufficient
factual findings to
permit a full legal analysis. Accordingly, the following discussion will provide
a general overview
of the relevant law as it may apply to pertinent allegations reported in the
media, assuming them
to be true. The discussion should not be interpreted to confirm the truth of
any allegations or
establish that a particular statute has been violated.
Background
WikiLeaks.org describes itself as a “public service designed to protect whistle-blowers,
journalists and activists who have sensitive materials to communicate to the public.”2 Arguing
that “[p]rincipled leaking has changed the course of history for the better,” it states that its
purpose is to promote transparency in government and fight corporate fraud by publishing
information governments or corporations would prefer to keep secret, obtained from sources in
person, by means of postal drops, and by using “cutting-edge cryptographic technologies” to
receive material electronically.3 The organization promises contributors that their anonymity will
be protected.
According to press reports, WikileaksWikiLeaks obtained more than 91,000 secret U.S. military reports
related to the war in Afghanistan and posted the majority of them, unredacted, on its website in
late July, 2010, after first alerting the New York Times and two foreign newspapers, the Guardian
(London) and Der Spiegel (Germany), about the pending disclosure. 4 Military officials have
reportedly said they suspect an Army private, Bradley Manning, of having leaked the documents
to Wikileaks. WikiLeaks.5 Private Manning, a U.S. citizen, is already in military custody under suspicion of
having provided WikileaksWikiLeaks with video footage of an airstrike that resulted in the deaths of
civilians. 6 U.S. officials have condemned the leaks, predicting that the information disclosed
could lead to the loss of lives of U.S. soldiers in Afghanistan and Afghan citizens who have
1
Mahmoud Kassem, Attorney General Holder Says U.S. Probing Leaks of Afghanistan Documents, BLOOMBERG, July
28, 2010, available at http://www.bloomberg.com/news/2010-07-28/attorney-general-holder-says-u-s-probing-leaksof-afghanistan-documents.html.
2
http://www.wikileaks.org/wiki/WikiLeaks:About.
3
Id.
4
The New York Times published a series of articles under the headline “The War Logs,” which is available online at
http://www.nytimes.com/interactive/world/war-logs.html. The Times describes the leaked material as an archive
covering six years of incident reports and intelligence documents – —“usually spare summaries but sometimes detailed
narratives” – —that “illustrate[s] in mosaic detail why” the military effort in Afghanistan has not weakened the Taliban.
C. J. Chivers et al., The Afghan Struggle: A Secret Archive, N.Y. TIMES, July 26, 2010, at 1. The German periodical
Der Spiegel published a series of articles under the topic “Afghanistan Protocol,” which is available (in English) online
at http://www.spiegel.de/international/world/0,1518,708314,00.html. The Guardian (UK) published a series entitled
“Afghanistan: The War Logs,” which is available online at http://www.guardian.co.uk/world/the-war-logs.
5
Military airstrike video leak suspect in solitary confinement, CNN.com, Aug. 1, 2010, available at
http://www.cnn.com/2010/POLITICS/07/31/wikileaks.manning/index.html.
6
Id.
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Criminal Prohibitions on the Publication of Classified Defense Information
could lead to the loss of lives of U.S. soldiers in Afghanistan and Afghan citizens who have
provided them assistance. 7
The publication of the leaked documents by Wikileaks and the subsequent reporting of
provided them assistance. 7 Defense Secretary Robert M. Gates has informed Members of
Congress that a preliminary review of the disclosed information by the Defense Department
found that no sensitive information related to intelligence sources or methods was made public,
but reiterated that the release of Afghan informants’ names could have “potentially dramatic and
grievously harmful consequences.”8 In the coming weeks, WikiLeaks is expected to release up to
500,000 documents related to the war in Iraq.9
The publication of the leaked Afghanistan documents by WikiLeaks and the subsequent reporting
of information contained therein raise questions with respect to the possibility of bringing criminal
criminal charges for the dissemination of materials by media organizations following an unauthorized
unauthorized disclosure, in particular when done by non-U.S. nationals overseas. This report will
discuss the
statutory prohibitions that may be implicated; the extraterritorial application of such
statutes; and
the First Amendment implications related to such prosecutions against domestic or
foreign media
organizations and associated individuals.
Statutory Protection of Classified Information
While there is no one statute that criminalizes the unauthorized disclosure of any classified
information, a patchwork of statutes exists to protect information depending upon its nature, the
identity of the discloser and of those to whom it was disclosed, and the means by which it was
obtained. It seems likely that most of the information disclosed by WikileaksWikiLeaks falls under the
general rubric of information related to the national defense.
The Espionage Act
National defense information in general is protected by the Espionage Act,810 18 U.S.C. §§ 793 –
798, while other types of relevant information are covered elsewhere. Some provisions apply only
to government employees or others who have authorized access to sensitive government
information, 911 but the following provisions apply to all persons. 18 U.S.C. § 793 prohibits the
gathering, transmitting, or receipt of defense information with the intent or reason to believe the
information will be used against the United States or to the benefit of a foreign nation. Violators
are subject to a fine or up to 10 years imprisonment, or both.10 Persons who possess defense,12 as are those who conspire to
7
Admiral Michael Mullen, Chairman of the Joint Chiefs of Staff, on Meet the Press, Aug. 1, 2010, transcript available
at http://www.msnbc.msn.com/id/38487969/ns/meet_the_press-transcripts/.
8
See Elisabeth Bumiller, Gates Found Cost of Leaks Was Limited, NY TIMES, Oct. 17, 2010 (quoting letter to Senator
Levin from Secretary Gates).
9
See Phil Stewart, Pentagon Expects Release of Iraq Files, WASH. POST, Oct. 18, 2010, at A14.
10
Act of October 6, 1917, ch. 106, § 10(i), 40 Stat. 422.
911
E.g., 18 U.S.C. §§ 952 (prohibiting disclosure of diplomatic codes and correspondence), 1924 (unauthorized removal
and retention of classified documents or material); 50 U.S.C. § 783 (unauthorized disclosure of classified information
to an agent of a foreign government, unauthorized receipt by foreign government official) This report does not address
such prohibitions, nor prohibitions that apply to military personnel under the Uniform Code of Military Justice.
1012
18 U.S.C. § 793(a)-(c) provides:
(a) Whoever, for the purpose of obtaining information respecting the national defense with intent
or or
reason to believe that the information is to be used to the injury of the United States, or to the
advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information
concerning any vessel, aircraft, work of defense, [etc.], or any prohibited place so designated by the
President by proclamation in time of war or in case of national emergency in which anything for
the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as
to which prohibited place the President has determined would be prejudicial to the national defense;
or
(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes,
makes, or obtains, or attempts to copy, take, make, or obtain any sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of
anything connected with the national defense; or
(continued...)
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Criminal Prohibitions on the Publication of Classified Defense Information
violate the statute.13 Persons who possess defense information that they have reason to know
could be used to harm the national security, whether
the access is authorized or unauthorized, and
who disclose that information to any person not
entitled to receive it, or who willfully retain the information despite an orderfail to surrender it to an
the
information to an officer of the United States, are subject to the same penalty.1114 Although it is not
necessary that the
information be classified by a government agency, the courts seem to give
deference to the
executive determination of what constitutes “defense information.”1215 Information
that is made
available by the government to the public is not covered under the prohibition,
however, because
public availability of such information negates the bad-faith intent
requirement.13 16 On the other
hand, classified documents remain within the ambit of the statute
even if information contained
therein is made public by an unauthorized leak. 1417
18 U.S.C. § 794 (aiding foreign governments or communicating information to an enemy in time
of war) covers “classic spying” cases,1518 providing for imprisonment for any term of years or life,
or under certain circumstances, the death penalty. 16 The provision penalizes anyone who transmits
(...continued)
(...continued)
President by proclamation in time of war or in case of national emergency in which anything for
the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as
to which prohibited place the President has determined would be prejudicial to the national defense;
or
(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes,
makes, or obtains, or attempts to copy, take, make, or obtain any sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of
anything connected with the national defense; or
(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or
obtain from any person, or from any source whatever, any [protected thing] connected with the
national defense, knowing or having reason to believe ... that it has been or will be obtained, taken,
made, or disposed of by any person contrary to the provisions of this chapter [18 U.S.C. §§ 792 et
seq.]….
1113
18 U.S.C. § 793(e) provides:
(e) g) provides:
If two or more persons conspire to violate any of the foregoing provisions of this section, and one
or more of such persons do any act to effect the object of the conspiracy, each of the parties to such
conspiracy shall be subject to the punishment provided for the offense which is the object of such
conspiracy.
14
18 U.S.C. § 793(e) provides:
Whoever having unauthorized possession of, access to, or control over any document [or other
protected thing], or information relating to the national defense which information the possessor
has reason to believe could be used to the injury of the United States or to the advantage of any
foreign nation, willfully communicates, delivers, transmits ... to any person not entitled to receive
it, or willfully retains the same and fails to deliver it to the officer or employee of the United States
entitled to receive it; …Shall be fined under this title or imprisoned not more than ten years, or
both.
1215
The government must demonstrate that disclosure of the information is at least “potentially damaging” to the United
States or advantageous to a foreign government. See United States v. Morison, 844 F.2d 1057, 1072 (4th Cir.), cert.
denied, 488 U.S. (1988)(upholding conviction under 18 U.S.C. § 793 for delivery of classified photographs to
publisher). Whether the information is “related to the national defense” under this meaning is a question of fact for the
jury to decide. Id. at 1073.
1316
Gorin v. United States, 312, U.S. 9, 27-28 (1941) (“Where there is no occasion for secrecy, as with reports relating to
national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood
be no reasonable intent to give an advantage to a foreign government.”).
1417
United States v. Squillacote, 221 F.3d 542, 578 (4th Cir. 2000).
1518
Morison, 844 F.2d at 1064-65 (explaining that critical element distinguishing § 794 from § 793 is the requirement
that disclosure be made to an agent of a foreign government rather than anyone not entitled to receive it).
16
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Criminal Prohibitions on the Publication of Classified Defense Information
or under certain circumstances, the death penalty. 19 The provision penalizes anyone who transmits
defense information to a foreign government (or foreign political or military party) with the intent
or reason to believe it will be used against the United States. It also prohibits attempts to elicit
information related to the public defense “which might be useful to the enemy.”20 The death
penalty is available only upon a finding that the offense resulted in the death of a covert agent or
directly concerns nuclear weapons or other particularly sensitive types of information. The death
penalty is also available under § 794 for violators who gather, transmit or publish information
related to military plans or operations and the like during time of war, with the intent that the
information reach the enemy. 21 These penalties are available to punish any person who
participates in a conspiracy to violate the statute. Offenders are also subject to forfeiture of any
ill-gotten gains and property used to facilitate the offense. 22
The unauthorized creation, publication, sale or transfer of photographs or sketches of vital
defense installations or equipment as designated by the President is prohibited by 18 U.S.C.
§§ 795 and 797.23 Violators are subject to fine or imprisonment for not more than one year, or
both.
19
§ 794. Gathering or delivering defense information to aid foreign government
(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States
or to the advantage of a foreign nation, communicates, delivers, or transmits ... to any foreign
government, or to any faction or party or military or naval force within a foreign country, whether
recognized or unrecognized by the United States, or to any representative, officer, agent, employee,
subject, or citizen thereof, either directly or indirectly, any document [or other protected thing], or
information relating to the national defense, shall be punished by death or by imprisonment for any
term of years or for life, except that the sentence of death shall not be imposed unless the jury or ...
the court, further finds that the offense resulted in the identification by a foreign power (as defined
in section 101(a) of the Foreign Intelligence Surveillance Act of 1978 [50 U.C.S. § 1801(a)]) of an
individual acting as an agent of the United States and consequently in the death of that individual,
or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or
other means of defense or retaliation against large-scale attack; war plans; communications
intelligence or cryptographic information; or any other major weapons system or major element of
(continued...)
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defense information to a foreign government (or foreign political or military party) with the intent
or reason to believe it will be used against the United States. It also prohibits attempts to elicit
information related to the public defense “which might be useful to the enemy.”17 The death
penalty is available only upon a finding that the offense resulted in the death of a covert agent or
directly concerns nuclear weapons or other particularly sensitive types of information. The death
penalty is also available under §794 for violators who gather, transmit or publish information
related to military plans or operations and the like during time of war, with the intent that the
information reach the enemy. 18 These penalties are available to punish any person who
participates in a conspiracy to violate the statute. Offenders are also subject to forfeiture of any
ill-gotten gains and property used to facilitate the offense. 19
The unauthorized creation, publication, sale or transfer of photographs or sketches of vital
defense installations or equipment as designated by the President is prohibited by 18 U.S.C.
§§ 795 and 797.20 Violators are subject to fine or imprisonment for not more than one year, or
both.
(...continued)
defense strategy.
17defense strategy.
20
§ 794(b) provides:
(b) Whoever, in time of war, with intent that the same shall be communicated to the enemy,
collects, records, publishes, or communicates, or attempts to elicit any information with respect to
the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships,
aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed
plans or conduct of any naval or military operations, or with respect to any works or measures
undertaken for or connected with, or intended for the fortification or defense of any place, or any
other information relating to the public defense, which might be useful to the enemy, shall be
punished by death or by imprisonment for any term of years or for life....
1821
During time of war, any individual who communicates intelligence or any other information to the enemy may be
prosecuted by the military for aiding the enemy under Article 104 of the Uniform Code of Military Justice (UCMJ),
and if convicted, punished by “death or such other punishment as a court-martial or military commission may direct.”
10 U.S.C. § 904.
1922
18 U.S.C. § 794(d). Proceeds go to the Crime Victims Fund.
2023
§ 795. Photographing and sketching defense installations
(a) Whenever, in the interests of national defense, the President defines certain vital military and
naval installations or equipment as requiring protection against the general dissemination of
information relative thereto, it shall be unlawful to make any photograph, sketch, picture, drawing,
map, or graphical representation of such vital military and naval installations or equipment without
first obtaining permission of the commanding officer of the military or naval post, camp, or station,
or naval vessels, military and naval aircraft, and any separate military or naval command
concerned, or higher authority, and promptly submitting the product obtained to such commanding
officer or higher authority for censorship or such other action as he may deem necessary....
§ 797. Publication and sale of photographs of defense installations
On and after thirty days from the date upon which the President defines any vital military or naval
installation or equipment as being within the category contemplated under section 795 of this title
[18], whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing,
map, or graphical representation of the vital military or naval installations or equipment so defined,
without first obtaining permission of the commanding officer ... or higher authority, unless such
photograph, sketch, picture, drawing, map, or graphical representation has clearly indicated thereon
that it has been censored by the proper military or naval authority, shall be fined under this title or
imprisoned not more than one year, or both.(continued...)
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The knowing and willful disclosure of certain classified information is punishable under 18
U.S.C. § 798 by fine and/or imprisonment for not more than 10 years.2124 To incur a penalty, the
disclosure must be prejudicial to the safety or interests of the United States or work to the benefit
of any foreign government and to the detriment of the United States. The provision applies only
to information related to cryptographic systems and information related to communications
intelligence specially designated by a U.S. government agency for “limited or restricted
dissemination or distribution.”2225
Other Statutes
18 U.S.C. § 1030(a)(1) punishes the willful retention, communication, or transmission, etc., of
classified information retrieved by means of knowingly accessing a computer without (or in
excess of) authorization, with reason to believe that such information “could be used to the injury
of the United States, or to the advantage of any foreign nation.” Receipt of information procured
in violation of the statute is not addressed, but depending on the specific facts surrounding the
unauthorized access, criminal culpability might be asserted against persons who did not
themselves access a government computer as conspirators, aiders and abettors, or accessories
after the fact.2326 The provision imposes a fine or imprisonment for not more than ten10 years, or
both,
in the case of a first offense or attempted violation. Repeat offenses or attempts can incur a
prison prison
sentence of up to twenty years.
18 U.S.C. § 641 punishes the theft or conversion of government property or records for one’s own
use or the use of another. While this section does not explicitly prohibit disclosure of classified
information, it has been used to prosecute “leakers.”24 Violators may be fined, imprisoned for not
more than 10 years, or both, unless the value of the property does not exceed the sum of $100, in
which case the maximum prison term is one year. The statute also covers knowing receipt or
retention of stolen or converted property with the intent to convert it to the recipient’s own use. It
21
20 years.
(...continued)
officer or higher authority for censorship or such other action as he may deem necessary....
§ 797. Publication and sale of photographs of defense installations
On and after thirty days from the date upon which the President defines any vital military or naval
installation or equipment as being within the category contemplated under section 795 of this title
[18], whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing,
map, or graphical representation of the vital military or naval installations or equipment so defined,
without first obtaining permission of the commanding officer ... or higher authority, unless such
photograph, sketch, picture, drawing, map, or graphical representation has clearly indicated thereon
that it has been censored by the proper military or naval authority, shall be fined under this title or
imprisoned not more than one year, or both.
24
§ 798. 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 … or imprisoned not more than ten years, or both.
2225
18 U.S.C. § 798(b).
23
26
For more information about conspiracy law, see CRS Report R41223, Federal Conspiracy Law: A Brief Overview,
by Charles Doyle.
24
See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988)(photographs and reports were tangible property of the
government); United States v. Fowler, 932 F.2d 306 (4th Cir. 1991)(“information is a species of property and a thing of
value” such that “conversion and conveyance of governmental information can violate § 641,” citing United States v.
Jeter, 775 F.2d 670, 680-82 (6th Cir. 1985)); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir. 1979).
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18 U.S.C. § 641 punishes the theft or conversion of government property or records for one’s own
use or the use of another. While this section does not explicitly prohibit disclosure of classified
information, it has been used to prosecute “leakers.”27 Violators may be fined, imprisoned for not
more than 10 years, or both, unless the value of the property does not exceed the sum of $100, in
which case the maximum prison term is one year. The statute also covers knowing receipt or
retention of stolen or converted property with the intent to convert it to the recipient’s own use. It
does not appear to have been used to prosecute any recipients of classified information even
where the original discloser was charged under the statute.
50 U.S.C. § 421 provides for the protection of information concerning the identity of covert
intelligence agents. 2528 It generally covers persons authorized to know the identity of such agents,
but can also apply to a person who learns of the identity of a covert agent through a “pattern of
activities intended to identify and expose covert agents” and discloses the identity to any
individual not authorized access to classified information, with reason to believe that such
activities would impair U.S. foreign intelligence efforts. This crime is subject to a fine or
imprisonment for a term of not more than three years. To be convicted, a violator must have
knowledge that the information identifies a covert agent whose identity the United States is taking
affirmative measures to conceal. To date, there have been no prosecutions under the statute.reported cases interpreting the
statute, but it did result in one conviction pursuant to a guilty plea.29
Analysis
In light of the foregoing, it seems that there is ample statutory authority for prosecuting
individuals who elicit or disseminate the types of documents at issue, as long as the intent
element can be satisfied and potential damage to national security can be demonstrated.26 There is
some authority, however, for interpreting 18 U.S.C. § 793, which prohibits the communication,
transmission or delivery of protected information to anyone not entitled to possess it, to exclude
the “publication” of material by the media.27 Publication is not expressly proscribed in 18 U.S.C.
§ 794(a), either, although it is possible that publishing covered information in the media could be
construed as an “indirect” transmission of such information to a foreign party, as long as the
intent that the information reach said party can be demonstrated.28 The death penalty is available
under that subsection if the offense results in the identification and subsequent death of “an
25
30 There is
27
See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988)(photographs and reports were tangible property of the
government); United States v. Fowler, 932 F.2d 306 (4th Cir. 1991)(“information is a species of property and a thing of
value” such that “conversion and conveyance of governmental information can violate § 641,” citing United States v.
Jeter, 775 F.2d 670, 680-82 (6th Cir. 1985)); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir. 1979). The statute was
used to prosecute a DEA official for leaking unclassified but restricted documents pertinent to an agency investigation.
See Dan Eggen, If the Secret’s Spilled, Calling Leaker to Account Isn’t Easy, WASH. POST, Oct. 3, 2003, at A5
(reporting prosecution of Jonathan Randel under conversion statute for leaking government documents to journalist).
28
The Intelligence Identities and Protection Act of 1982, codified at 50 U.S.C. §§ 421-26. For more information, see
CRS Report RS21636, Intelligence Identities Protection Act, by Elizabeth B. Bazan. The term “covert agent” is defined
to include a non-U.S. citizen “whose past or present intelligence relationship to the United States is classified
information and who is a present or former agent of, or a present or former informant or source of operational
assistance to, an intelligence agency.” 50 U.S.C. § 426(4)(c). “Intelligence agency” is defined to include a “foreign
intelligence component of the Department of Defense”; informant means “any individual who furnishes information to
an intelligence agency in the course of a confidential relationship.” 50 U.S.C. § 426(5-6). The definitions suggest that
the act is intended to protect the identities of persons who provide intelligence information directly to a military
counterintelligence unit, but perhaps they can be read to cover those who provide information to military personnel
carrying out other functions who provide situation reports intended to reach an intelligence component. In any event,
the extraterritorial application of the statute is limited to U.S. citizens and permanent resident aliens. 50 U.S.C. § 424.
2629
See Richard B. Schmitt, Rare Statute Figures in Rove Case, LA TIMES, July 15, 2005, at A15 (reporting 1985
conviction of Sharon Scranage, a clerk for the CIA in Ghana, for disclosing identities of covert agents).
30
It appears the intent element is satisfied by proof that the material was obtained or disclosed “with intent or reason to
believe that the information is to be used [or could be used] to the injury of the United States, or to the advantage of
any foreign nation.” 18 U.S.C. §§ 793 and 794. This has been interpreted to require the prosecution to demonstrate a
“bad purpose.” See United States v. Morison, 844 F.2d 1057, 1071 (“An act is done willfully if it is done voluntarily
and intentionally and with the specific intent to do something that the law forbids. That is to say, with a bad purpose
either to disobey or to disregard the law.”). If any of the disclosed material involves communications intelligence as
described in 18 U.S.C. § 798, the conduct must be undertaken knowingly and willfully to meet the intent threshold.
27
See New York Times Co. v. United States, 403 U.S. 713, 721-22 (1971) (Douglas, J., concurring) (rejecting
government argument that term “communicate” should be read to include “publish,” based on conspicuous absence of
the term “publish” in that section of the Espionage Act and legislative history demonstrating Congress had rejected an
effort to reach publication).
28
See Harold Edgar and Benno C. Schmidt, Jr., Curtiss-Wright Comes Home: Executive Power and National Security
Secrecy, 21 HARV. C.R.-C.L. L. REV. 349, 395 (1986) (questioning whether Espionage Act can be construed to except
publication).
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individual acting as an agent of the United States,”29(continued...)
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some authority, however, for interpreting 18 U.S.C. § 793, which prohibits the communication,
transmission, or delivery of protected information to anyone not entitled to possess it, to exclude
the “publication” of material by the media.31 Publication is not expressly proscribed in 18 U.S.C.
§ 794(a), either, although it is possible that publishing covered information in the media could be
construed as an “indirect” transmission of such information to a foreign party, as long as the
intent that the information reach said party can be demonstrated.32 The death penalty is available
under that subsection if the offense results in the identification and subsequent death of “an
individual acting as an agent of the United States,”33 or the disclosure of information relating to
certain other broadly defined defense matters. The word “publishes” does appear in 18 U.S.C.
§ 794(b), which applies to wartime disclosures of information related to the “public defense” that
“might be useful to the enemy” and is in fact intended to be communicated to the enemy. The
types of information covered seem to be limited to military plans and information about
fortifications and the like, which may exclude data related to purely historical matters.
Moreover, the statutes described in the previous section have been used almost exclusively to
prosecute individuals with access to classified information (and a corresponding obligation to
protect it) who make it available to foreign agents, or to foreign agents who obtain classified
information unlawfully while present in the United States. Leaks of classified information to the
press have only rarely been punished as crimes, and we are aware of no case in which a publisher
of information obtained through unauthorized disclosure by a government employee has been
prosecuted for publishing it. There may be First Amendment implications that would make such a
prosecution difficult, not to mention political ramifications based on concerns about government
censorship. To the extent that the investigation implicates any foreign nationals whose conduct
occurred entirely overseas, any resulting prosecution may carry foreign policy implications
related to the exercise of extraterritorial jurisdiction.
Jurisdictional Reach of Relevant Statutes
The Espionage Act gives no express indication that it is intended to apply extraterritorially, but
courts have not been reluctant to apply it to overseas conduct of Americans, in particular because
Congress in 1961 eliminated a provision restricting the act to apply only “within the admiralty
and maritime jurisdiction of the United States and on the high seas, as well as within the United
States.”30 This does not answer the question whether the act is intended to apply to foreigners
outside the United States. Because espionage is recognized as a form of treason,31 which
generally applies only to persons who owe allegiance to the United States, it might be supposed
that Congress did not regard it as a crime that could be committed by aliens with no connection to
the United States. However, the only court that appears to have addressed the question concluded
otherwise. 32 A district court judge held in 1985 that a citizen of East Germany could be
prosecuted under §§ 793(b), 794(a) and 794(c) for having (1) unlawfully sought and obtained
information regarding the U.S. national defense, (2) delivered that information to his own
29
The data released by Wikileaks(...continued)
described in 18 U.S.C. § 798, the conduct must be undertaken knowingly and willfully to meet the intent threshold.
31
See New York Times Co. v. United States, 403 U.S. 713, 721-22 (1971) (Douglas, J., concurring) (rejecting
government argument that term “communicate” should be read to include “publish,” based on conspicuous absence of
the term “publish” in that section of the Espionage Act and legislative history demonstrating Congress had rejected an
effort to reach publication).
32
See Harold Edgar and Benno C. Schmidt, Jr., Curtiss-Wright Comes Home: Executive Power and National Security
Secrecy, 21 HARV. C.R.-C.L. L. REV. 349, 395 (1986) (questioning whether Espionage Act can be construed to except
publication).
33
The data released by WikiLeaks contains some names of Afghans who assisted Coalition Forces, leading to some
concern that the Taliban might use the information to seek out those individuals for retaliation. See Eric Schmitt and
David E. Sanger, Gates Cites Peril in Leak of Afghan War Logs, N.Y. TIMES, Aug. 2, 2010, at 4. The New York Times,
The Guardian, and Der Spiegel published excerpts of the database, but did not publish the names of individual
Afghans. Id. No deaths have yet been tied to the leaks. See Robert Burns, Pentagon Sees Deadly Risk in Wikileaks
Disclosures, AP NEWSWIRE, Aug. 17, 2010. There appears to be no court precedent interpreting “agent of the United
States” in the context of18 U.S.C. § 794(a).
30
See United States v. Zehe, 601 F. Supp. 196, 198 (D.C. Mass. 1985)(citing former 18 U.S.C. § 791 repealed by P.L.
87-369, 75 Stat. 795(1961)).
31
See 70 AM. JUR. 2D Sedition, Subversive Activities and Treason § 15 (2005). Courts have not been persuaded that the
Treason Clause of the Constitution requires the safeguards associated with treason apply also to similar crimes such as
espionage or levying war against the United States. See id., United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), cert.
denied, 344 U.S. 838 (1952)(espionage); United States v. Rodriguez, 803 F.2d 318 (7th Cir. ), cert. denied, 480 U.S.
908 (1986) (levying war).
32
Zehe at 198 (“Espionage against the United States, because it is a crime that by definition threatens this country’s
security, can therefore be punished by Congress even if committed by a noncitizen outside the United States.”).
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States.”34 This does not answer the question whether the act is intended to apply to foreigners
outside the United States. Because espionage is recognized as a form of treason,35 which
generally applies only to persons who owe allegiance to the United States, it might be supposed
that Congress did not regard it as a crime that could be committed by aliens with no connection to
the United States. However, the only court that appears to have addressed the question concluded
otherwise. 36 A district court judge held in 1985 that a citizen of East Germany could be
prosecuted under §§ 793(b), 794(a) and 794(c) for having (1) unlawfully sought and obtained
information regarding the U.S. national defense, (2) delivered that information to his own
government, and (3) conspired to do so with the intent that the information be used to the injury
of the United States or to the advantage of the German Democratic Republic, all of which
offenses were committed within East Germany or in Mexico. The court rejected the defendant’s
contention that construing the act to cover him would permit the prosecution of noncitizens “who
might merely have reviewed defense documents supplied to them by their respective
governments.”3337 The court considered the scenario unlikely, stating:
Under the statutorily defined crimes of espionage in §§ 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.3438
Under this construction, it is possible that noncitizens involved in publishing materials disclosed
to them by another would be subject to prosecution only if it can be demonstrated that they took
an active role in obtaining the information. The case was not appealed. The defendant, Dr. Alfred
Zehe, pleaded guilty in February, 1985 and was sentenced to eight years in prison, but was traded
as part of a “spy swap” with East Germany in June of that year.3539
Application of the Espionage Act to persons who do not hold a position of trust with the
government, outside of the classic espionage scenario (in which an agent of a foreign government
delivers damaging information to such hostile government), has been controversial. The only
known case of that type involved two Israelipro-Israel lobbyists in Washington, Steven J. Rosen and Keith
Keith Weissman, associated with the American Israel Public Affairs Committee (AIPAC), who were
were indicted in 2005 for conspiracy to disclose national security secrets to unauthorized
individuals,
including Israeli officials, other AIPAC personnel, and a reporter for the Washington
Post.3640 Their
part in the conspiracy amounted to receiving information from government
employees with
knowledge that the employees were not authorized to disclose it.37 The prosecution was criticized
for effectively “criminalizing the exchange of information,”38 based in part on the government’s
theory that the defendants were guilty of solicitation of classified information because they
inquired into matters they knew their government informant was not permitted to discuss,
something that many journalists consider to be an ordinary part of their job. 39 Charges were
eventually dropped, reportedly due to a judge’s ruling regarding the government’s burden of
33
Id. at 199.
Id.
35
Henry Giniger and Milt Freudenheim, Free to Spy Another Day?, NY TIMES, Jun 16, 1985, at A.4.
3641 The
34
See United States v. Zehe, 601 F. Supp. 196, 198 (D.C. Mass. 1985)(citing former 18 U.S.C. § 791 repealed by P.L.
87-369, 75 Stat. 795(1961)).
35
See 70 AM. JUR. 2D Sedition, Subversive Activities and Treason § 15 (2005). Courts have not been persuaded that the
Treason Clause of the Constitution requires the safeguards associated with treason apply also to similar crimes such as
espionage or levying war against the United States. See id., United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), cert.
denied, 344 U.S. 838 (1952)(espionage); United States v. Rodriguez, 803 F.2d 318 (7th Cir. ), cert. denied, 480 U.S.
908 (1986) (levying war).
36
Zehe at 198 (“Espionage against the United States, because it is a crime that by definition threatens this country’s
security, can therefore be punished by Congress even if committed by a noncitizen outside the United States.”).
37
Id. at 199.
38
Id.
39
Henry Giniger and Milt Freudenheim, Free to Spy Another Day?, NY TIMES, Jun 16, 1985, at A.4.
40
See United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006); Jerry Markon, U.S. Drops Case Against ExLobbyists, WASH. POST, May 2, 2009, at A1 (stating the case is the first prosecution under the Espionage Act against
civilians not employed by the government).
3741
See William E. Lee, Deep Background: Journalists, Sources, and the Perils of Leaking, 57 AM. U. L. REV. 1453,
1519 (2007) (opining that “the conspiracy charge especially threatens reporter-source transactions where the reporter
promises not to disclose the identity of the source”).
38
Time to Call It Quits, WASH. POST, March 11, 2009 (editorial urging Attorney General to drop charges).
34
39
See William E. Lee, Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes, 36 AM. J. CRIM.
L. 129, 132-34 (2009). The solicitation theory relied on a 2008 Supreme Court case finding that solicitation of an
illegal transaction is not speech deserving of First Amendment protection. United States v. Williams, 553 U.S. 285
(2008). See id. at 133 (citing Brief of the United States at 43-44, United States v. Rosen, 557 F.3d 192 (4th Cir. 2008)
(No. 08-4358)). Williams had to do with solicitation of child pornography, but Justice Scalia posed as a rhetorical
question whether Congress could criminalize solicitation of information thought to be covered by the Espionage Act:
Is Congress prohibited from punishing those who attempt to acquire what they believe to be
national-security documents, but which are actually fakes? To ask is to answer.
Williams at 304.
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proving the requisite intent and concerns that classified information would have to be disclosed at
trial.40(continued...)
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prosecution was criticized for effectively “criminalizing the exchange of information,”42 based in
part on the government’s theory that the defendants were guilty of solicitation of classified
information because they inquired into matters they knew their government informant was not
permitted to discuss, something that many journalists consider to be an ordinary part of their
job.43 Charges were eventually dropped, reportedly due to a judge’s ruling regarding the
government’s burden of proving the requisite intent and concerns that classified information
would have to be disclosed at trial.44
Constitutional Issues
The publication of information pertaining to the national defense may serve the public interest by
providing citizens with information necessary to shed light on the workings of government, but it
seems widely accepted that the public release of at least some defense information poses a
significant enough threat to the security of the nation that the public interest is better served by
keeping it secret. The Constitution protects the public right to access government information and
to express opinions regarding the functioning of the government, among other things, but it also
charges the government with “providing for the common defense.” Policymakers are faced with
the task of balancing these interests.
The First Amendment to the U.S. Constitution provides: “Congress shall make no law ...
abridging the freedom of speech, or of the press....”4145 Despite this absolute language, the Supreme
Court has held that “[t]he Government may ... regulate the content of constitutionally protected
speech in order to promote a compelling interest if it chooses the least restrictive means to further
the articulated interest.”42
Where speech is restricted based on its content, the Supreme Court generally applies “strict
scrutiny,” which means that it will uphold a content-based restriction only if it is necessary “to
promote a compelling interest,” and is “the least restrictive means to further the articulated
interest.”43 Protection of the national security from external threat is without doubt a compelling
government interest.44 It has long been accepted that the government has a compelling need to
suppress certain types of speech, particularly during time of war or heightened risk of hostilities. 45
Speech likely to incite immediate violence, for example, may be suppressed. 46 Speech that would
give military advantage to a foreign enemy is also susceptible to government regulation. 47
40
See Markon, supra footnote 3646
(...continued)
1519 (2007) (opining that “the conspiracy charge especially threatens reporter-source transactions where the reporter
promises not to disclose the identity of the source”).
42
Time to Call It Quits, WASH. POST, March 11, 2009 (editorial urging Attorney General to drop charges).
43
See William E. Lee, Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes, 36 AM. J. CRIM.
L. 129, 132-34 (2009). The solicitation theory relied on a 2008 Supreme Court case finding that solicitation of an
illegal transaction is not speech deserving of First Amendment protection. United States v. Williams, 553 U.S. 285
(2008). See id. at 133 (citing Brief of the United States at 43-44, United States v. Rosen, 557 F.3d 192 (4th Cir. 2008)
(No. 08-4358)). Williams had to do with solicitation of child pornography, but Justice Scalia posed as a rhetorical
question whether Congress could criminalize solicitation of information thought to be covered by the Espionage Act:
Is Congress prohibited from punishing those who attempt to acquire what they believe to be
national-security documents, but which are actually fakes? To ask is to answer.
Williams at 304.
44
See Markon, supra footnote 40 (quoting Dana J. Boente, the acting U.S. attorney in Alexandria, VA, where the trial
was scheduled to take place). The judge found the scienter requirement of 18 U.S.C. § 793 to require that the
defendants must have reason to believe the communication of the information at issue “could be used to the injury of
the United States or to the advantage of any foreign nation.” 445 F. Supp. 2d at 639. Moreover, the judge limited the
definition of “information related to the national defense” to information that is “potentially damaging to the United
States or ... useful to an enemy of the United States.” Id. (citing United States v. Morison, 844 F.2d 1057, 1084 (4th Cir.
1988) (Wilkinson, J., concurring)) .
4145
For an analysis of exceptions to the First Amendment, see CRS Report 95-815, Freedom of Speech and Press:
Exceptions to the First Amendment, by Kathleen Ann Ruane.
4246
Sable Communications of California v. Federal Communications Commission, 492 U.S. 115, 126 (1989).
43
Id.
44
See Haig v. Agee, 453 U.S. 280 (1981) (“It is ‘obvious and unarguable’ that no governmental interest is more
compelling than the security of the Nation.”)(citing Aptheker v. Secretary of State, 378 U.S. 500, 509; accord Cole v.
Young, 351 U.S. 536, 546 (1956)).
45
See Schenck v. United States, 249 U.S. 47 (1919) (formulating “clear and present danger” test).
46
Brandenburg v. Ohio, 395 U.S. 444 (1969).
47
Near v. Minnesota, 283 U.S. 697, 716 (1931) (“No one would question but that a government might prevent actual
obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of
troops.”).
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Where speech is restricted based on its content, the Supreme Court generally applies “strict
scrutiny,” which means that it will uphold a content-based restriction only if it is necessary “to
promote a compelling interest,” and is “the least restrictive means to further the articulated
interest.”47 Protection of the national security from external threat is without doubt a compelling
government interest.48 It has long been accepted that the government has a compelling need to
suppress certain types of speech, particularly during time of war or heightened risk of hostilities. 49
Speech likely to incite immediate violence, for example, may be suppressed. 50 Speech that would
give military advantage to a foreign enemy is also susceptible to government regulation. 51
Where First Amendment rights are implicated, it is the government’s burden to show that its
interest is sufficiently compelling to justify enforcement. Whether the government has a
compelling need to punish disclosures of classified information turns on whether the disclosure
has the potential of causing damage to the national defense or foreign relations of the United
States.4852 Actual damage need not be proved, but potential damage must be more than merely
speculative and incidental.4953 On the other hand, the Court has stated that “state action to punish
the publication of truthful information seldom can satisfy constitutional standards.”5054 And it has
described the constitutional purpose behind the guarantee of press freedom as the protection of
“the free discussion of governmental affairs.”51
Although information properly classified in accordance with statute or executive order carries by
definition, if disclosed to a person not authorized to receive it, the potential of causing at least
identifiable harm to the national security of the United States,52 it does not necessarily follow that
government classification by itself will be dispositive of the issue in the context of a criminal
48
55
47
Id.
See Haig v. Agee, 453 U.S. 280 (1981) (“It is ‘obvious and unarguable’ that no governmental interest is more
compelling than the security of the Nation.”)(citing Aptheker v. Secretary of State, 378 U.S. 500, 509; accord Cole v.
Young, 351 U.S. 536, 546 (1956)).
49
See Schenck v. United States, 249 U.S. 47 (1919) (formulating “clear and present danger” test).
50
Brandenburg v. Ohio, 395 U.S. 444 (1969).
51
Near v. Minnesota, 283 U.S. 697, 716 (1931) (“No one would question but that a government might prevent actual
obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of
troops.”).
52
“National Security” is defined as national defense and foreign relations. See Exec. Order No. 13,52613526, 75 Fed. Reg.
707 § 6.1(cc) (Jan. 5, 2010).
4953
See, e.g., New York Times Co. v. United States, 403 U.S. 713, 725 (1971) (Brennan, J., concurring) (rejecting as
insufficient government’s assertions that publication of Pentagon Papers “could,” “might,” or “may” prejudice the
national interest); Elrod v. Burns, 427 U.S. 347, 362 (1976) (“The interest advanced must be paramount, one of vital
importance, and the burden is on the government to show the existence of such an interest.”) (citing Buckley v. Valeo,
424 U.S. 1, 94(1976); Williams v. Rhodes, 393 U.S. 23, 31-33(1968); NAACP v. Button, 371 U.S. 38, 45 (1963); Bates
v. Little Rock, 361 U.S. 516, 524 (1960); NAACP v. Alabama, 357 U.S. 449, 464-466 (1958); Thomas v. Collins, 323
U.S. 516, 530 (1945)).
5054
Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (citing Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)).
51
48
55
Mills v. Alabama, 384 U.S. 214, 218 (1966). Because of the First Amendment purpose to protect the public’s ability
to discuss governmental affairs along with court decisions denying that it provides any special rights to journalists, e.g.,
Branzburg v. Hayes, 408 U.S. 665 (1972), it is not likely a plausible argument to posit that it does not apply to the
foreign press. See United States v. 18 Packages of Magazines 238 F. Supp. 846, 847-848 (D.C. Cal. 1964) (“Even if it
be conceded, arguendo, that the ‘foreign press’ is not a direct beneficiary of the Amendment, the concession gains
nought for the Government in this case. The First Amendment does protect the public of this country. … The First
Amendment surely was designed to protect the rights of readers and distributors of publications no less than those of
writers or printers. Indeed, the essence of the First Amendment right to freedom of the press is not so much the right to
print as it is the right to read. The rights of readers are not to be curtailed because of the geographical origin of printed
materials.”). Likewise, the fact that WikileaksWikiLeaks is not a typical newsgathering and publishing organization would likely
make little difference under First Amendment analysis. The Supreme Court has not established clear boundaries
between the protection of speech and that of the press, nor has it sought to develop criteria for identifying what
constitutes “the press” that might qualify its members for privileges not available to anyone else. See generally
CONGRESSIONAL RESEARCH SERVICE, THE CONSTITUTION OF THE UNITED STATES: ANALYSIS AND INTERPRETATION, SEN.
DOC. NO. 108-17, at 1083-86 (2002), available at http://crs.gov/conan/default.aspx?mode=topic&doc=
Amendment01.xml&t=2|3.
52
Exec. Order No. 12,958, 60 Fed. Reg.19,825 (Apr. 17, 1995)(“Classified National Security Information”).
Sec. 1.3 defines three levels of classification:
(1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause exceptionally grave damage to the national security that the original
classification authority is able to identify or describe.
(2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could
be expected to cause serious damage to the national security that the original classification
authority is able to identify or describe.
(3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause damage to the national security that the original classification authority
is able to identify or describe.
(Emphasis added). President Obama issued a new Executive Order late in 2009, but did not amend these definitions.
Exec. Order No. 13526, 75 Fed. Reg. 707 §1.2 (Jan. 5, 2010).
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(continued...)
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Although information properly classified in accordance with statute or executive order carries by
definition, if disclosed to a person not authorized to receive it, the potential of causing at least
identifiable harm to the national security of the United States,56 it does not necessarily follow that
government classification by itself will be dispositive of the issue in the context of a criminal
trial. However, courts have adopted as an element of the espionage statutes a requirement that the
information at issue must be “closely held.”5357 Government classification will likely serve as
strong evidence to support that contention, even if the information seems relatively innocuous or
does not contain much that is not already publicly known.5458 Typically, courts have been unwilling
to review decisions of the executive related to national security, or have made a strong
presumption that the material at issue is potentially damaging. 5559 Still, judges have recognized that
the government must make some showing that the release of specific national defense information
has the potential of harming U.S. interests, lest the Espionage Act become a means to punish
whistle-blowers who reveal information that poses more of a danger of embarrassing public
officials than of endangering national security.5660
The Supreme Court seems satisfied that national security is a vital interest sufficient to justify
some intrusion into activities that would otherwise be protected by the First Amendment—at least
with respect to federal employees. Although the Court has not held that government classification
of material is sufficient to show that its release is damaging to the national security,5761 it has
seemed to accept without much discussion the government’s assertion that the material in
question is damaging. It is unlikely that a defendant’s bare assertion that information poses no
danger to U.S. national security will be persuasive without some convincing evidence to that
effect, or proof that the information is not closely guarded by the government. 58
A challenge to the Espionage Act has reached the Supreme Court in only one instance. In Gorin v.
United States,59 the Court upheld portions of the act now codified as 18 U.S.C. §§ 793 and 794
against assertions of vagueness, but only because jury instructions properly established the
elements of the crimes, including the scienter requirement (proof of “guilty knowledge”) and a
definition of “national defense” that includes potential damage in case of unauthorized release of
protected information and materials. Gorin was a “classic case” of espionage, and did not involve
a challenge based on First Amendment right to free speech. The Court agreed with the
government that the term “national defense” was not vague; it was satisfied that the term
describes “a generic concept of broad connotations, referring to the military and naval
establishments and the related activities of national preparedness.”60 Whether information was
53
United States v. Heine, 151 F.2d 813 (2d Cir.1945)(...continued)
Amendment01.xml&t=2|3.
56
Exec. Order No. 13526, 75 Fed. Reg. 707 § 1.2 (Jan. 5, 2010) (“Classified National Security Information”).
Sec. 1.3 defines three levels of classification:
(1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause exceptionally grave damage to the national security that the original
classification authority is able to identify or describe.
(2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could
be expected to cause serious damage to the national security that the original classification
authority is able to identify or describe.
(3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause damage to the national security that the original classification authority
is able to identify or describe.
57
United States v. Heine, 151 F.2d 813 (2d Cir.1945) (information must be “closely held” to be considered “related to
the national defense” within the meaning of the espionage statutes).
5458
See, e.g., United States v. Abu-Jihaad 600 F.Supp.2d 362, 385 -386 (D. Conn. 2009) (although completely inaccurate
information might not be covered, information related to the scheduled movements of naval vessels was sufficient to
bring materials within the ambit of national defense information).
5559
See, e.g., Haig v. Agee, 453 U.S. 280, 291 (1981) (“Matters intimately related to foreign policy and national security
are rarely proper subjects for judicial intervention.”).
5660
See, e.g., United States v. Morison, , 844 F.2d 1057, 1086 (4th Cir. 1988) (Phillips, J., concurring) (“…I assume we
reaffirm today, that notwithstanding information may have been classified, the government must still be required to
prove that it was in fact ‘potentially damaging ... or useful,’ i.e., that the fact of classification is merely probative, not
conclusive, on that issue, though it must be conclusive on the question of authority to possess or receive the
information. This must be so to avoid converting the Espionage Act into the simple Government Secrets Act which
Congress has refused to enact.”) (emphasis in original).
5761
See, e.g., Scarbeck v. United States, 317 F.2d 546 (D.C. Cir. 1962) (holding government did not have to show
documents were properly classified “as affecting the national defense” to convict employee under 50 U.S.C. § 783,
which prohibits government employees from transmitting classified documents to foreign agents or entities).
58
See United States v. Dedeyan, 594 F.2d 36, 39 (4th Cir. 1978).
59
312 U.S. 19 (1941).
60
Id. at 28.
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“related to the national defense” was a question for the jury to decide,61 based on its
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danger to U.S. national security will be persuasive without some convincing evidence to that
effect, or proof that the information is not closely guarded by the government. 62
A challenge to the Espionage Act has reached the Supreme Court for decision in only one
instance. In Gorin v. United States,63 the Court upheld portions of the act now codified as 18
U.S.C. §§ 793 and 794 against assertions of vagueness, but only because jury instructions
properly established the elements of the crimes, including the scienter requirement (proof of
“guilty knowledge”) and a definition of “national defense” that includes potential damage in case
of unauthorized release of protected information and materials. Gorin was a “classic case” of
espionage, and did not involve a challenge based on the First Amendment right to free speech.
The Court agreed with the government that the term “national defense” was not vague; it was
satisfied that the term describes “a generic concept of broad connotations, referring to the military
and naval establishments and the related activities of national preparedness.”64 Whether
information was “related to the national defense” was a question for the jury to decide, 65 based on
its determination that the information “may relate or pertain to the usefulness, efficiency or
availability of any of the above places, instrumentalities or things for the defense of the United
States of America. The connection must not be a strained one nor an arbitrary one. The
relationship must be reasonable and direct.”6266 As long as the jury was properly instructed that
only information likely to cause damage meets the definition of information “related to the
national defense” for the purpose of the statute, the term was not unconstitutionally vague.
United States v. Morison63Morison67 is significant in that it represents the first case in which a person was
convicted for selling classified documents to the media. 6468 Samuel Loring Morison, charged with
providing classified satellite photographs to the British defense periodical Jane’s Defence Weekly,
argued that the espionage statutes did not apply to his conduct because he could not have had the
requisite intent to commit espionage. The Fourth Circuit rejected his appeal, finding the intent to
sell photographs that he clearly knew to be classified sufficient to satisfy the scienter requirement
under 18 U.S.C. § 793(d) (disclosure by lawful possessor of defense information to one not
entitled to receive it). The definition of “relating to the national defense” was not overbroad
because the jury had been instructed that the government had the burden of showing that the
information was so related. 6569 His assertedly laudable motive in permitting publication of the
photographs did not negate the element of intent.66
The fact that the Morison prosecution involved a leak to the media with no obvious intent to
transmit sensitive information to hostile intelligence services did not persuade the jury or the
judges involved that he lacked culpability, but the Justice Department did come under some
criticism on the basis that such prosecutions are so rare as to amount to a selective prosecution in
his case, and that it raised concerns about the chilling effect such prosecutions could have on
would-be whistle-blowers who could provide information embarrassing to the government but
vital to public discourse. 67 On leaving office, President Clinton pardoned Morison.68
6170
62
See United States v. Dedeyan, 594 F.2d 36, 39 (4th Cir. 1978).
312 U.S. 19 (1941).
64
Id. at 28.
65
Id. at 32. The information defendant was charged with passing to the Soviet government had to do with U.S.
intelligence on the activities of Japanese citizens in the United States.
6266
Id. at 31.
6367
844 F.2d 1057 (4th Cir.), cert. denied, 488 U.S. 908 (1988).
6468
Efforts to prosecute Daniel Ellsberg and Anthony Russo in connection with the disclosure of the Pentagon Papers
were unsuccessful after the judge dismissed them for prosecutorial misconduct. More recently, a Defense Department
employee pleaded guilty to charges under the Espionage Act for disclosing classified material to lobbyists and to
journalists. United States v. Franklin, Cr. No. 05-225 (E.D. Va., 2005). For a description of these and other relevant
cases, see Lee, supra footnote 37.
6541.
69
But see Scarbeck v. United States, 317 F.2d 546 (D.C. Cir. 1962) (holding that government did not need to prove
proper classification of documents to prove a violation).
6670
844 F.2d at 1073-74. Morison had stated that he sought the publication of the photos because they would
demonstrate to the public the gravity of the threat posed by the Soviet Union, which he hoped would result in an
increased defense budget. See P. Weiss, The Quiet Coup: U.S. v. Morison - A Victory for Secret Government,
HARPER’S, September 1989.
67
See Jack Nelson, U.S. Government Secrecy and the Current Crackdown on Leaks 8, The Joan Shorenstein Center on
the Press, Politics and Public Policy, Working Paper Series 2003-1 (2002), available at http://www.hks.harvard.edu/
presspol/publications/papers/working_papers/2003_01_nelson.pdf.
68
Valerie Strauss, Navy Analyst Morison Receives a Pardon, WASH. POST, Jan. 21, 2001, at A17. Senator Daniel
Patrick Moynihan wrote a letter in support of Morison’s pardon and explaining his view that “An evenhanded
prosecution of leakers could imperil an entire administration,” and that “[i]f ever there were to be widespread action
taken, it would significantly hamper the ability of the press to function.” Letter, Sen. Daniel Patrick Moynihan to
President Clinton, September 29, 1998, available at http://www.fas.org/sgp/news/2001/04/moynihan.html.
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The fact that the Morison prosecution involved a leak to the media with no obvious intent to
transmit sensitive information to hostile intelligence services did not persuade the jury or the
judges involved that he lacked culpability, but the Justice Department did come under some
criticism on the basis that such prosecutions are so rare as to amount to a selective prosecution in
his case, and that it raised concerns about the chilling effect such prosecutions could have on
would-be whistle-blowers who could provide information embarrassing to the government but
vital to public discourse. 71 On leaving office, President Clinton pardoned Morison.72
As far as the possible prosecution of the publisher of information leaked by a government
employee is concerned, the most relevant case is likely to be the Pentagon Papers case.6973 To be
sure, the case involved an injunction against publication rather than a prosecution for having
published information, but the rationale for protecting such disclosure may nevertheless inform
any decision involving a conviction. In a per curiam opinion accompanied by nine concurring or
dissenting opinions, the U.S. Supreme Court refused to grant the government’s request for an
injunction to prevent the New York Times and the Washington Post from printing a classified
study of the U.S. involvement in Vietnam. The Court explained:
prior restraints are the most serious and least tolerable infringement on First Amendment
rights.... A prior restraint, ... by definition, has an immediate and irreversible sanction. If it
can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior
restraint “freezes” it at least for the time. The damage can be particularly great when the
prior restraint falls upon the communication of news and commentary on current events.7074
A majority of the justices suggested in separate dicta, that the newspapers—along with the former
government employee who leaked the documents to the press—could be prosecuted under the
Espionage Act.7175 Still, in later cases the Court stressed that any prosecution of a publisher for
what has already been printed would have to overcome only slightly less insurmountable
hurdles.72 Moreover, if national security interests were not sufficient to outweigh the First
Amendment principles implicated in the prior restraint of pure speech related to the public
interest, as in the Pentagon Papers case, 73 it is difficult to discern an obvious rationale for finding
that punishing that same speech after it has already been disseminated nevertheless tilts the
balance in favor of the government’s interest in protecting sensitive information.
The publication of truthful information that is lawfully acquired enjoys considerable First
Amendment protection.74 The Court has not resolved the question “whether, in cases where
information has been acquired unlawfully by a newspaper or by a source, government may ever
punish not only the unlawful acquisition, but the ensuing publication as well.”75 (The Pentagon
Papers Court did not consider whether the newspapers’ receipt of the classified document was in
69
New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).
76 Moreover, if national security interests were not sufficient to outweigh the First
(...continued)
HARPER’S, September 1989.
71
See Jack Nelson, U.S. Government Secrecy and the Current Crackdown on Leaks 8, The Joan Shorenstein Center on
the Press, Politics and Public Policy, Working Paper Series 2003-1 (2002), available at http://www.hks.harvard.edu/
presspol/publications/papers/working_papers/2003_01_nelson.pdf.
72
Valerie Strauss, Navy Analyst Morison Receives a Pardon, WASH. POST, Jan. 21, 2001, at A17. Senator Daniel
Patrick Moynihan wrote a letter in support of Morison’s pardon and explaining his view that “An evenhanded
prosecution of leakers could imperil an entire administration,” and that “[i]f ever there were to be widespread action
taken, it would significantly hamper the ability of the press to function.” Letter, Sen. Daniel Patrick Moynihan to
President Clinton, September 29, 1998, available at http://www.fas.org/sgp/news/2001/04/moynihan.html.
73
New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).
74
Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court order restraining the
publication or broadcast of accounts of confessions or admissions made by the defendant at a criminal trial).
7175
403 U.S. at 734-40 (White, J. with Stewart, J. concurring); id. at 745-47 (Marshall, J., concurring); id. at 752 (Burger,
C.J., dissenting); id. at 752-59 (Harlan, J., joined by Burger, C.J. and Blackmun, J., dissenting). See David Topol, Note,
United States v. Morison: A Threat to the First Amendment Right to Publish Security Information, 43 S.C. L. REV. 581,
586 (noting that three concurring justices suggested that the government could convict the newspapers under the
Espionage Act even though it could not enjoin them from printing the documents, while the three dissenting justices
thought the injunction should issue).
7276
Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102-03 (1979) (“Whether we view the statute as a prior restraint or
as a penal sanction for publishing lawfully obtained, truthful in-formation is not dispositive because even the latter
action requires the highest form of state interest to sustain its validity.”) The case involved the prosecution of a
newspaper for publishing the name of a juvenile defendant without court permission, in violation of state law.
73
For a list of the types of damage the government argued would ensue if its efforts to enjoin publication failed, see
William H. Freivogel, Publishing National Security Secrets: The Case for “Benign Indeterminacy,” 3 J. NAT’L
SECURITY L. & POL’Y 95, 112-13 (2009).
74
See, e.g., Landmark Commc’ns. v. Virginia, 435 U.S. 829, 837 (1978).
75
Florida Star v. B.J.F. 491 U.S. 524, 535 (1989) . The Court also questioned whether the receipt of information can
ever constitutionally be proscribed. Id. at 536.
70
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Amendment principles implicated in the prior restraint of pure speech related to the public
interest, as in the Pentagon Papers case, 77 it is difficult to discern an obvious rationale for finding
that punishing that same speech after it has already been disseminated nevertheless tilts the
balance in favor of the government’s interest in protecting sensitive information.
The publication of truthful information that is lawfully acquired enjoys considerable First
Amendment protection.78 The Court has not resolved the question “whether, in cases where
information has been acquired unlawfully by a newspaper or by a source, government may ever
punish not only the unlawful acquisition, but the ensuing publication as well.”79 (The Pentagon
Papers Court did not consider whether the newspapers’ receipt of the classified document was in
itself unlawful, although it appeared to accept that the documents had been unlawfully taken from
the government by their source).
The Court has established that “routine newsgathering” is presumptively lawful acquisition, the
fruits of which may be published without fear of government retribution. 7680 However, what
constitutes “routine newsgathering” has not been further elucidated. In the 2001 case Bartnicki v.
Vopper, the Court cited the Pentagon Papers case to hold that media organizations cannot be
punished (albeit in the context of civil damages) for divulging information on the basis that it had
been obtained unlawfully by a third party.7781 The holding suggests that recipients of unlawfully
disclosed information cannot be considered to have obtained such material unlawfully based
solely on their knowledge (or “reason to know”) that the discloser acted unlawfully. Under such
circumstances, disclosure of the information by the innocent recipient would be covered by the
First Amendment, although a wrongful disclosure by a person in violation of an obligation of trust
would receive no First Amendment protection, regardless of whether the information was
obtained lawfully.7882
Bartnicki had to do with the disclosure of illegally intercepted communications in violation of
federal and state wiretap laws, which prohibited disclosure of such information by anyone who
knew or had reason to know that it was the product of an unlawful interception, but did not
prohibit the receipt of such information. The Espionage Act, by contrast, does expressly prohibit
the receipt of any national defense material with knowledge or reason to believe that it “is to be
used to the injury of the United States, or to the advantage of any foreign nation” and that it was
disclosed contrary to the provisions of the Espionage Act.7983 This distinction could possibly affect
whether a court would view the information as having been lawfully acquired; although the
Bartnicki opinion seems to establish that knowledge that the information was unlawfully
disclosed by the initial leaker cannot by itself make receipt or subsequent publication unlawful, it
does not directly address whether knowledge of the nature of the information received would
bring about a different result.
Conclusion
The Espionage Act on its face applies to the receipt and unauthorized dissemination of national
defense information, which has been interpreted broadly to cover closely-held government
materials related to U.S. military operations, facilities, and personnel. It has been interpreted to
cover the activities of foreign nationals overseas, at least when they take an active part in seeking
out information. Although cases involving disclosures of classified information to the press have
been rare, it seems clear that courts have regarded such disclosures by government employees to
be conduct that enjoys no First Amendment protection, regardless of the motives of the divulger
or the value the release of such information might impart to public discourse.80 The Supreme
76
77
77
For a list of the types of damage the government argued would ensue if its efforts to enjoin publication failed, see
William H. Freivogel, Publishing National Security Secrets: The Case for “Benign Indeterminacy,” 3 J. NAT’L
SECURITY L. & POL’Y 95, 112-13 (2009).
78
See, e.g., Landmark Commc’ns. v. Virginia, 435 U.S. 829, 837 (1978).
79
Florida Star v. B.J.F. 491 U.S. 524, 535 (1989) . The Court also questioned whether the receipt of information can
ever constitutionally be proscribed. Id. at 536.
80
Daily Mail, 443 U.S at 103. Here, routine newsgathering consisted of perusing publicly available court records.
81
532 U.S. 514 (2001).
78
82
See Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007) (en banc) (Congressman, bound by Ethics Committee
rules not to disclose certain information, had no First Amendment right to disclose to press contents of tape recording
illegally made by third party).
79
18 U.S.C. § 793(c).
80
The courts have permitted government agencies to enjoin their employees and former employees from publishing
information they learned on the job, United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063
(continued...)
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83
18 U.S.C. § 793(c).
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does not directly address whether knowledge of the nature of the information received would
bring about a different result.
Conclusion
The Espionage Act on its face applies to the receipt and unauthorized dissemination of national
defense information, which has been interpreted broadly to cover closely held government
materials related to U.S. military operations, facilities, and personnel. It has been interpreted to
cover the activities of foreign nationals overseas, at least when they take an active part in seeking
out information. Although cases involving disclosures of classified information to the press have
been rare, it seems clear that courts have regarded such disclosures by government employees to
be conduct that enjoys no First Amendment protection, regardless of the motives of the divulger
or the value the release of such information might impart to public discourse.84 The Supreme
Court has stated, however, that the question remains open whether the publication of unlawfully
obtained information by the media can be punished consistent with the First Amendment. Thus,
although unlawful acquisition of information might be subject to criminal prosecution with few
First Amendment implications, the , the
publication of that information remains protected. Whether the
publication of national security
information can be punished likely turns on the value of the
information to the public weighed
against the likelihood of identifiable harm to the national
security, arguably a more difficult case
for prosecutors to make.
Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
(...continued)84
The courts have permitted government agencies to enjoin their employees and former employees from publishing
information they learned on the job, United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063
(1972), and permitted harsh sanctions against employees who publish even unclassified information in violation of an
obligation to obtain pre-publication clearance, Snepp v. United States, 444 U.S. 507 (1980).
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