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Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information

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Criminal Prohibitions on the PublicationLeaks and Other Disclosures of Classified Defense Information

August 29, 2016March 7, 2017 (R41404)
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Summary

The publication of large quantities of classified information by certain organizations and news outlets in recent years has received Congress's attention. Press reports describing classified U.S. operations abroad have led to calls from Congress for an investigation into the source of the leaks, and in 2012, then-Attorney General Holder appointed two special prosecutors to look into the matter. The online publication of classified defense documents and diplomatic cables in 2010 by the organization WikiLeaks, and subsequent reporting by The New York Times and other news media, had already focused attention on whether such publication violates U.S. criminal law. The source of the WikiLeaks material, Army Private Bradley Manning (now known as Chelsea Manning), has been sentenced to 35 years of imprisonment for a number of offenses under the Uniform Code of Military Justice (UCMJ), but was not convicted of aiding the enemy. A grand jury in Virginia was empanelled to decide whether to recommend indictment of any civilians in connection with the disclosure. It remains to be seen what related grand jury indictments may have been returned under seal. A number of other cases involving charges under the Espionage Act, including efforts to extradite Edward Snowden in connection with the leak of National Security Agency (NSA) documents pertaining to certain surveillance programs, seemingly demonstrate the Obama Administration's policy with respect to the prosecution of persons suspected of leaking classified information to the media.

This report identifies some criminal statutes that may apply to the publication of classified defense information, noting 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. While prosecutions appear to be on the rise, leaks of classified information to the press have relatively infrequently been punished as crimes, and there appears to be 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 WikiLeaks 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 and whether suspected persons may be extradited to the United States under applicable treaty provisions.

This report discusses the statutory prohibitions that may be implicated by the unauthorized release of classified defense information, 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. The report provides a summary of previous legislative efforts to criminalize the unauthorized disclosure of classified information.


Criminal Prohibitions on the Publication of Classified Defense Information

The online publication of classified defense documents and diplomatic cables in 2010 by the organization WikiLeaks and subsequent reporting by The New York Times, The Guardian (UK), and Der Spiegel (Germany), among others, focused attention on whether such publication violates U.S. criminal law. The source of the material, Army Private Bradley Manning (now known as Chelsea Manning), has been sentenced to 35 years of imprisonment for a number of offenses under the Uniform Code of Military Justice (UCMJ). A grand jury empanelled in Alexandria, VA, investigated civilian involvement in the matter,1 but information regarding the targets of the investigation and the prosecution's theory of the case remains under seal.2

Another set of newspaper articles in 2012 reporting on U.S. covert or clandestine operations overseas led to calls for the appointment of a special prosecutor to investigate executive branch leaks.3 In June 2012, then-Attorney General Eric Holder appointed two U.S. Attorneys to lead FBI investigations into certain possible unauthorized disclosures, but did not reveal which news stories were thought to have reported leaked material.4 The Federal Bureau of Investigation (FBI) had reportedly opened investigations into the disclosure of information leading to a news story about the United States' alleged involvement in deploying a computer virus to damage uranium enrichment facilities in Iran5 and another to look into a report about a foiled terrorist plot.6 Other news accounts regarding, for example, the use of unmanned aerial vehicles (also known as drones) for targeted killings abroad7 have likewise given rise to questions about whether White House officials discussed classified information with journalists, but the scope of the investigations remains unclear.

The publication of classified information related to National Security Agency (NSA) surveillance activity in 2013 was another major leak to the press that has garnered Congress's attention. Little public information is available regarding these investigations, however. Accordingly, the following discussion provides 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

The WikiLeaks Releases

WikiLeaks.org has described itself as a "public service designed to protect whistleblowers, journalists and activists who have sensitive materials to communicate to the public."8 Arguing that "[p]rincipled leaking has changed the course of history for the better," it stated that its purpose is to promote transparency in government and fight corporate fraud by publishing information governments or corporations would prefer to keep secret. WikiLeaks obtains its postings from sources in person, by means of postal drops, and by using "cutting-edge cryptographic technologies" to receive material electronically.9 The organization has promised contributors that their anonymity will be protected.

According to press reports, WikiLeaks 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.10 Military officials charged an Army private, Chelsea Manning, for offenses related to the provision of documents to WikiLeaks.11 Private Manning, a dual U.S.-British citizen, was already in military custody under suspicion of having provided WikiLeaks with video footage of an airstrike that resulted in the deaths of civilians.12 She was convicted by court-martial and sentenced to 35 years of imprisonment, reduction in rank, forfeiture of pay, and a dishonorable discharge.13

Private Manning was acquitted of the most serious charge she faced, aiding the enemy in violation of UCMJ Article 104.14 The violation is a capital offense, but prosecutors did not seek the death penalty.15 Aiding the enemy is also one of two offenses under the UCMJ that apply to "any person," rather than "any person subject to [chapter 47 of Title 10, U.S. Code]" as defined in UCMJ Article 2,16 which might have raised the possibility that civilians who are not connected with the military could be similarly charged. There has been no suggestion that court-martial of any civilians has been considered in connection with the disclosure, and such a prosecution would likely be subject to constitutional challenge. Private Manning had pleaded guilty to some lesser offenses without the benefit of a plea agreement with prosecutors17 and defended her actions as motivated by a desire to enlighten the public.18

U.S. officials 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 provided them assistance.19 In 2010, then-Defense Secretary Robert M. Gates informed Members of Congress that a preliminary review of the disclosed information by the Department of Defense (DOD) 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."20 WikiLeaks subsequently released some 400,000 documents related to the war in Iraq,21 this time with names of informants apparently redacted.22

In late November 2010, WikiLeaks began publishing what the New York Times calls a "mammoth cache of a quarter-million confidential American diplomatic cables," dated for the most part from 2008 to 2010.23 WikiLeaks.org posted 220 cables on November 28, 2010, as a first installment, some of which were redacted to protect diplomatic sources. The most recent documents in the collection are reportedly dated February 2010,24 but some of them apparently go back several decades.25

The United States government was aware of the impending disclosure, although not apparently directly informed by the web-based anti-secrecy organization (or given access to the documents to be released). WikiLeaks Editor in Chief Julian Assange, in a letter sent to the U.S. Ambassador to the United Kingdom, Louis Susman, offered to consider any U.S. requests to protect specific information that the government believes could, if published, put any individuals at significant risk of harm.26 The State Department's Legal Adviser responded in a letter to Mr. Assange's attorney that the publication of classified materials violates U.S. law, that the United States will not negotiate with WikiLeaks with respect to the publication of illegally obtained classified documents, and that WikiLeaks should cease these activities and return all documents, as well as delete any classified U.S. government material in its possession from its databases.27 Mr. Assange responded by accusing the United States of adopting a confrontational stance and indicating an intent to continue publishing the materials, subject to the checks WikiLeaks and its media partners planned to implement to reduce any risk to individuals.28

After learning the classified cables were to be published, the DOD notified the U.S. Senate and House Armed Services Committees in general terms about what to expect.29 The DOD explained that "State Department cables by their nature contain everyday analysis and candid assessments that any government engages in as part of effective foreign relations" and predicted that the publication of the classified cables, which were described as intended to "wreak havoc and destabilize global security," could potentially jeopardize lives.30 A State Department spokesman told Bloomberg that the State Department was "assessing the possible impact on our on-going diplomatic activity and notifying both Congress and other governments what may occur."31 The White House issued a statement condemning the activities of WikiLeaks32 and ordered all agencies to conduct reviews of their information security policies and programs.33

As of early January 2011, about 1% of the cables had been published, with WikiLeaks.org posting only those cables that had already been released by the newspapers, as redacted by the newspapers.34 The State Department warned human rights activists, foreign government officials, and businesspeople who are identified in the diplomatic cables that they may be at risk, although their names had not been published thus far, and the State Department relocated a few of them for their safety.35 The cables continued to be released at an apparently steady rate,36 until it was discovered in late August 2011 that the entire unredacted file had been published on the web along with the password needed to access the data.37 WikiLeaks then began publishing the remaining documents at a much faster pace, so that all of the more than 250,000 diplomatic cables are accessible without redactions on the Internet.38

Other Recent Leaks Prosecutions

The Obama Administration seemingly has generally taken a relatively hardline stance with respect to those suspected of leaking classified information to the press, with seven prosecutions currently underway or completed (including Chelsea Manning).39 Another pair of prosecutions involving mishandling of classified information, albeit not involving the news media, adds to the tally of prosecutions.

A former National Security Agency (NSA) official, Thomas A. Drake, agreed to plead guilty to exceeding authorized use of a government computer in violation of 18 U.S.C. Section 1030(a)(2)(B) (a misdemeanor), after the government dropped more serious charges under the Espionage Act, among other offenses.40 Mr. Drake was initially investigated beginning in 2007 in connection with the New York Times' revelations regarding the Bush Administration's warrantless surveillance program, but was eventually charged in connection with providing classified information that revealed alleged NSA mismanagement to the Baltimore Sun.41 Prosecutors eventually dropped these charges after the judge ruled that the government's proposed substitutions for documentary evidence it sought to introduce would not provide an adequate opportunity for the defendant to present his case.42 After calling the government's treatment of the defendant in the case "unconscionable" and declining to impose a fine, the court sentenced Mr. Drake to one year probation and 240 hours of community service.43

A guilty plea was also secured in a case against an FBI contract linguist accused of providing secret documents to a blogger.44 The defendant, Shamai Kedem Leibowitz, was sentenced to 20 months in prison for violation of 18 U.S.C. Section 798 by passing five documents classified at the "secret" level in relation to communications intelligence.45

The Obama Administration sought to compel New York Times reporter James Risen to testify at the trial of former Central Intelligence Agency (CIA) officer Jeffrey Sterling, who was convicted and sentenced to 42 months' imprisonment for providing classified information to Mr. Risen that formed the basis of part of a book.46 The judge ruled, however, that Mr. Risen need only testify about certain non-privileged information and need not identify the source of the material in question.47 The government asked the court to reconsider the ruling, arguing that the reporter's testimony is "qualitatively different" from the circumstantial evidence the judge thought would suffice to establish the same facts,48 but the court declined to reconsider. The U.S. Court of Appeals for the Fourth Circuit reversed the ruling on appeal,49 holding there is neither a First Amendment privilege nor a federal common-law privilege protecting journalists from being compelled to testify. Ultimately, however, the government did not call Mr. Risen to testify at the jury trial.50

Another prosecution involved a former State Department contractor who was indicted in 2010 for disclosing national defense information to Fox News reporter James Rosen, related to intelligence regarding North Korea's nuclear weapons program.51 Mr. Rosen was apparently also investigated and named as a co-conspirator in the indictment, but was not himself indicted for his role.52 The contractor, Stephen Kim, was at the time of the disclosure a senior adviser for intelligence detailed to the State Department's arms control compliance bureau.53 The court denied the defendant's motions to dismiss the espionage charges based on the Constitution's Treason Clause as well as the First and Fifth Amendments.54 Mr. Kim subsequently entered a guilty plea and was sentenced to 13 months in prison.55

A former CIA officer, John Kiriakou, was charged for the unauthorized disclosure of classified information to a journalist. Because the disclosures were alleged to have included the identities of covert CIA employees, he was also charged under the rarely used Intelligence Identities Protection Act.56 After the judge rejected his Espionage Act defense based on the lack of intent to harm the United States or give advantage to a foreign nation,57 Mr. Kiriakou pleaded guilty to violating the Intelligence Identities Protection Act58 and was sentenced to 30 months' imprisonment.59

In 2013 Edward Snowden, a former contractor working as a computer system administrator at an NSA facility in Hawaii, was charged in connection with leaking top secret documents related to certain NSA programs to the Guardian (UK) and the Washington Post.60 He permitted the newspapers to publish his name, but fled to Hong Kong before he could be taken into custody. He reportedly sought asylum in Ecuador but remains at large under temporary asylum in Russia.61 The criminal complaint against him charges two violations of the Espionage Act and theft of government property.62

Other notable cases involving espionage charges, but which did not implicate the direct publication of classified information, include then-CIA Director David H. Petraeus, who pleaded guilty to a misdemeanor for providing his biographer with notebooks containing classified information and was sentenced to two years' probation along with a $100,000 fine;63 and James Hitselberger, a Navy contract linguist who was initially charged with unlawful retention of national defense information under the Espionage Act after providing secret military reports to a think tank. Hitselberger eventually pleaded guilty to a misdemeanor violation of unlawfully removing and retaining classified information.64

The publication of the leaked documents by WikiLeaks and the subsequent reporting of information contained therein, as well as other publications of "leaked" classified information, raise questions with respect to the possibility of bringing criminal charges for the dissemination of materials by media organizations following an unauthorized disclosure, in particular when done by non-U.S. nationals overseas. This report discusses 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 WikiLeaks that was obtained from Department of Defense databases falls under the general rubric of information related to the national defense. The diplomatic cables obtained from State Department channels may also contain information relating to the national defense and thus be covered under the Espionage Act, but otherwise their disclosure by persons who are not government employees does not appear to be directly proscribed.65 It is possible that some of the government information disclosed in any of the releases does not fall under the express protection of any statute, despite its classified status.

The Espionage Act

National defense information in general is protected by the Espionage Act,66 18 U.S.C. Sections 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,67 but many apply to all persons. 18 U.S.C. Section 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 of imprisonment, or both,68 as are those who conspire to violate the statute.69 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 fail to surrender the information to an officer of the United States, are subject to the same penalty.70 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."71 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.72 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.73

18 U.S.C. Section 794 (aiding foreign governments or communicating information to an enemy in time of war) covers "classic spying" cases,74 providing for imprisonment for any term of years or life, or under certain circumstances, the death penalty.75 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."76 The death penalty is available only Statutory Protection of Classified Information

  • The Espionage Act
  • Section 793: General Protection of National Defense Information
  • Section 794: "Classic Spying" Cases
  • Sections 795-797: Images of Defense Installations and Equipment
  • Section 798: Certain Classified Information and Cryptographic Systems
  • Criminal Prohibitions Under the Uniform Code of Military Justice
  • Other Relevant Statutes
  • Mens Rea Requirements
  • Mens Rea and the Espionage Act
  • Other Mens Rea Requirements
  • The First Amendment Framework
  • Prosecution of Leaks and Disclosures to the Press
  • The Criminal Prosecution for the Pentagon Papers Leak
  • Samuel Loring Morison and Jane's Defence Weekly
  • Lawrence Franklin and the AIPAC Disclosure
  • Shamai Leibowitz, Leaked Transcripts of Calls with the Israeli Embassy
  • Thomas Drake, NSA Disclosures to the Baltimore Sun
  • Jeffrey Sterling, CIA Disclosures to New York Times Reporter James Risen
  • Stephen Jim-Woo Kim, State Department Disclosure to Fox News Correspondent James Rosen
  • Private Manning and WikiLeaks
  • John Kirakou, Violation of the Intelligence Identities Protection Act
  • James Hitselberger, Navy Linguist Disclosure to the Hoover Institution
  • Donald Sachtleben, Disclosure of Foiled Bomb Plot to the Associated Press
  • Edward Snowden, National Security Agency Data-Collection Programs
  • Unauthorized Disclosure by General David Petraeus
  • Legal Proceedings Involving the Press or Other Recipients of Unlawful Disclosures
  • Criminal Prosecution of AIPAC Lobbyists in United States v. Rosen
  • The Civil Litigation in the Pentagon Papers Case
  • Gathering Evidence from the Press
  • The Classified Information Protection Act of 2001
  • Conclusion
  • Summary

    Recent unauthorized disclosures of information concerning activities in the White House, and the publication of large quantities of classified information by WikiLeaks and other organizations and news outlets, have prompted congressional interest in criminal prohibitions on disclosure of classified information. While some have described recent leaks of classified information as "illegal" and "criminal," there is no single statute that criminalizes any unauthorized disclosure of classified information. Instead, the legal framework is based on a complex and often overlapping set of statutes with provisions that differ depending on, among other factors, what information was disclosed, to whom it was given, and the intentions of the discloser. This report identifies statutory prohibitions that may be implicated by the unauthorized release of classified information, and it examines the elements necessary to secure a conviction under the Espionage Act and applicable statutes.

    Historically, the Espionage Act and other relevant statutes have been used almost exclusively to prosecute (1) individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, and (2) foreign agents who obtain classified information unlawfully while present in the United States. While prosecutions appear to be on the rise, disclosures of classified information to the press have been punished as crimes less frequently, and the government has never prosecuted a traditional news organization for publishing classified information that it received as a result of a leak.

    This report examines prosecutions of individuals who leak information to the press or policy organizations, such as lobbying groups and think tanks, as well as civil and criminal actions that have been brought against the recipients of leaked information—often the press. Because these cases implicate unique First Amendment concerns regarding freedom of speech and freedom of the press, the constitutional framework relevant to prosecutions and other legal proceedings filed as a result of leaked classified information is also analyzed in this report.

    Lastly, this report provides a summary of previous legislative efforts to criminalize the unauthorized disclosure of classified information and to address potential gaps or ambiguities in current statutes.

    Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information
    Recent unauthorized disclosures to the press concerning activities in the White House,1 and the publication of large quantities of classified information by WikiLeaks and other organizations and news outlets,2 has prompted congressional interest in criminal prohibitions on disclosure of classified information. While President Trump3 and certain media outlets have described certain White House leaks as "criminal"4 and "illegal,"5 there is no single statute that criminalizes any unauthorized disclosure of classified information.6 Instead, criminal prohibitions on unauthorized disclosure of classified information are based on a complex and often overlapping set of statutes with provisions that differ depending on, among other factors, what material was leaked, to whom it was given, and the intent of the discloser.7 The most recent large-scale unauthorized disclosure occurred on March 7, 2017, when WikiLeaks published a collection of what it claims is the "largest ever publication of confidential documents" from the Central Intelligence Agency (CIA).8 This material, dubbed "Vault 7" by WikiLeaks, has been reported to expose classified information9 concerning, among other things, the CIA's technical capabilities to bypass encryption on certain phone and messaging services, to use "smart" televisions as listening devices, and to engage in certain types of cyberattacks.10 In a press release, WikiLeaks claimed that its source for the classified material "wishes to initiate a public debate about the security, creation, use, proliferation and democratic control of cyberweapons."11 This latest disclosure has prompted renewed questions regarding the government's ability to prosecute WikiLeaks and its founder, Julian Assange, for their role in the publication of classified material.12 Historically, the criminal statutes prohibiting the disclosure of protected information have been used almost exclusively to prosecute (1) individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents and (2) foreign agents who obtain classified information unlawfully while present in the United States. In recent years, however, government officials have utilized the Espionage Act and other relevant statutes to prosecute individuals for providing classified information to news outlets and other organizations, including WikiLeaks, even when the accused claims to have a salutary motive of influencing public opinion or exposing potentially useful information about government programs. These prosecutions and the related proceedings that have been filed against members of the press who receive leaked information implicate unique constitutional considerations concerning the scope of First Amendment rights to freedom of speech and freedom of the press.13 Statutory Protection of Classified Information While there is no single 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, the purpose of disclosure, and the means by which the information was obtained.14 One broad category of information—national defense information—is protected by the Espionage Act,15 while other types of relevant information are covered elsewhere in various provisions of the U.S. Code.16 Some provisions apply only to government employees or others who have authorized access to sensitive government information,17 but many apply to all persons.18 Analysis of which statutory authorities are applicable to an unauthorized disclosure of classified information is likely to depend on the precise circumstances of the disclosure.19 The Espionage Act Originally enacted upon the United States' entry into World War I,20 the Espionage Act is one of the U.S. government's primary statutory vehicles for addressing the disclosure of classified information.21 The act is now codified as amended, in relevant part, in 18 U.S.C. Sections 793-798.22 Each section provides for criminal prohibitions on gathering, handling, or transmitting information or other material "relating to the national defense"23—commonly referred to as national defense information24—and other protected classes of documents, material, or information defined by statute.25

    The Espionage Act does not expressly address what constitutes information that is sufficiently related to national defense to fall within its ambit. However, in a 1941 decision, Gorin v. United States,26 the Supreme Court explained that "national defense" is a "generic concept of broad connotations, relating to the military and naval establishments and the related activities of national preparedness."27 While it is not necessary that a government agency mark information as classified in order for it to be protected under the Espionage Act, courts seem to give deference to the executive determination of what constitutes national defense information.28 The act has been challenged on several occasions under the theory that the term national defense information is unconstitutionally vague and overbroad,29 but the Gorin Court held that the mental state or mens rea requirements in the act, discussed below,30 had a "delimiting" effect that gave what were otherwise potentially problematic terms sufficient definitiveness to pass constitutional muster.31    

    Section 793: General Protection of National Defense Information

    The first provision of the Espionage Act, 18 U.S.C. Section 793, prohibits certain activities related to gathering, receiving, or transmitting national defense information to "one not entitled to receive it."32 Section 793(a) prohibits obtaining information concerning a series of national defense installations (i.e., physical places) "with intent 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[.]"33 Similarly, Section 793(b) prohibits individuals with "like intent or reason to believe" from obtaining or duplicating any "sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense."34

    Subsection (c) of Section 793 creates criminal liability for an individual who "receives or obtains, or agrees or attempts to receive or obtain" certain material related to national defense when the individual knows or has reason to believe that the material has been or will be "obtained, taken, made, or disposed of by any person contrary to the provisions of the [Espionage Act]."35 Thus, whereas subsections (a) and (b) criminalize collecting or copying national defense information, subsection (c) prohibits its receipt so long as the recipient has (or should have) knowledge that the source violated another provision of the Espionage Act in the course of obtaining the information.36

    Subsections (d) and (f) of Section 793 prohibit the dissemination of certain material and information relating to the national defense that is in the lawful possession of the individual who disseminates it. Subsection (d) prohibits willful dissemination,37 and subsection (f) prohibits dissemination or mishandling through gross negligence.38 Subsection (f) also applies when the lawful possessor of national defense information "fails to make prompt report" of its loss or theft.39 When an individual has unauthorized possession of certain material or information related to the national defense, Section 793(e) prohibits its willful disclosure.40

    Violators of any provision in Section 793 are subject to a fine or up to 10 years of imprisonment, or both,41 as are those who conspire to violate the statute.42

    Section 794: "Classic Spying" Cases

    18 U.S.C. Section 794 covers so-called "classic spying" cases in which a defendant gathers or delivers national defense information or materials for use by foreign governments.43 More specifically, Section 794 penalizes anyone who transmits information or certain material related to the national defense to a foreign government or foreign political or military party with the intent or reason to believe it will be used to the injury of the United States or the advantage of a foreign nation.44 Section 794 thus differs in primary respect from Section 793 in that it focuses on a more limited category of recipients—agents of foreign governments.45 Section 794(b), which is applicable only "in time of war," further prohibits attempts to elicit information related to the public defense "which might be useful to the enemy[.]"46 Subsection (c) makes it a crime to conspire to violate the provisions of Section 794.47

    A violation of Section 794 is punishable by imprisonment for any term of years or life, or under certain circumstances, by a sentence of death.48 The death penalty is available 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.49upon 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 Section 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 reachreaches the enemy.77 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.78

    50 Offenders are also subject to forfeiture of any ill-gotten gains and property used to facilitate the offense.51 In sum, Section 794 treats the transmission of national security information with intent to aid the enemy or a foreign government more severely than other types of disclosures.52 Sections 795-797: Images of Defense Installations and Equipment

    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. Sections 795 79553 and 797.54 Similarly, Section 796 prohibits the use of an aircraft for the purpose of capturing images of a vital defense installation or equipment.55 Violators are subject to fine or imprisonment for not more than one year, or both.56 Section 798: Certain Classified Information and Cryptographic Systems 18 U.S.C. Section 798 provides that the knowing and willful disclosure of certain specified types of classified information (as opposed to national defense information) is punishable by fine and/or imprisonment for not more than 10 years.57 The provision applies only to certain categories of classified information, such as information concerning codes, ciphers, cryptographic systems, or other communications intelligence activities.58 And the term "classified information" is limited to information that was classified "for reasons of national security[.]"59 and 797.79 Violators are subject to fine or imprisonment for not more than one year, or both.

    The knowing and willful disclosure of certain classified information is punishable under 18 U.S.C. Section 798 by fine and/or imprisonment for not more than 10 years.80 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 or communications intelligence that is specially designated by a U.S. government agency for "limited or restricted dissemination or distribution."81

    60 Criminal Prohibitions Under the Uniform Code of Military Justice

    Members of the military8261 who commit espionage, defined similarly akin to the conduct prohibited in 18 U.S.C. Section 794, may be tried by court-martial for violating Article 106a of the Uniform Code of Military Justice (UCMJ)8362 and sentenced to death if certain aggravating factors are found by unanimous determination of the panel.84.63 Unlike offenses under Section 794, Article 106a offenses need not have resulted in the death of a covert agent or involve military operations during war to incur the death penalty. One of the aggravating factors enabling the imposition of the death penalty under Article 106a is that "[t]he accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute."

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    However, the government is not limited to charging the offense of espionage under Article 106a, discussed above. Members could also be tried by court-martial for violations of Article 92, failure to obey order or regulation;8565 Article 104, aiding the enemy;8666 or under the general article, Article 134.8767 Article 134 offenses include "all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital"8868 that are not enumerated elsewhere in the UCMJ. Specifically, clause 3 of Article 134 (crimes and offenses not capital) may be utilized to try a member of the military for a violation of applicable federal law, such as 18 U.S.C. Section 1030(a), discussed below, not addressed by the UCMJ.

    Other Relevant Statutes In addition to the Espionage Act and its UCMJ counterparts, other criminal prohibitions in the U.S. Code have been or potentially could be utilized to prosecute the disclosure of classified information. Statutes

    18 U.S.C. Section 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."69 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.8970 The provision imposes a fine or imprisonment for not more than 10 years, or both, in the case of a first offense or attempted violation.71 Repeat offenses or attempts can incur a prison sentence of up to 20 years.

    72

    18 U.S.C. Section 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 explicitlyexpressly prohibit disclosure of classified information, it has been used to prosecute "leakers."9073 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.74 It does not appear to have been used to prosecute any recipients of classified information even when the original discloser was charged under the statute.

    The Intelligence Identities Protection Act, 50 U.S.C. Section 3121 (Intelligence Identities Protection Act), provides for the protection of information concerning the identity of covert intelligence agents.9175 It generally covers persons authorized to know the identity of such agents or who learn the identity of covert agents as a result of their general access to classified information,9276 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 toto access classified information with reason to believe that such activitiesdisclosures would impair U.S. foreign intelligence efforts.77 For those without authorized access, the crime is subject to a fine or imprisonment for a term of not more than three years.78 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.79 To date, there have been no reported cases interpreting the statute, but two convictions pursuant to guilty pleas have resulted from the statute.93

    80

    18 U.S.C. Section 1924 prohibits the unauthorized removal of classified material by government employees, contractors, and consultants who come into possession of the material by virtue of their employment by the government.9481 The provision imposes a fine of up to $1,000 and a prison term of up to one year for offenders who knowingly remove material classified pursuant to government regulations concerning the national defense or foreign relations of the United States, with the intent of retaining the materials at an unauthorized location.95

    There appears to be no statute that generally proscribes the acquisition or publication of diplomatic cables, although government employees who disclose such information without proper authority may be subject to prosecution. 82 18 U.S.C. Section 952 punishes employees of the United States who, without authorization, willfully publish or furnish to another any official diplomatic code or material prepared in such a code by imposing a fine, a prison sentence (up to 10 years), or both. The same punishment applies for materials "obtained while in the process of transmission between any foreign government and its diplomatic mission in the United States,"9683 but not, apparently, for materials obtained during transmission from U.S. diplomatic missions abroad to the State Department or vice versa.9784 The removal of classified material concerning foreign relations with the intent to store themit at an unauthorized location is a misdemeanor under 18 U.S.C. Section 1924, which also applies only to U.S. government employees.

    85

    50 U.S.C. Section 783 penalizes government officers or employees who, without proper authority, communicate classified information to a person whomwho the employee has reason to suspect is an agent or representative of a foreign government.9886 It is also unlawful for the representative or agent of the foreign government to receive classified information.9987 Violation of either of these provisions is punishable by a fine of up to $10,000 or imprisonment for not more than 10 years.10088 Violators are thereafter prohibited from holding federal public office.10189 Violators must forfeit all property derived directly or indirectly from the offense and any property that was used or intended to be used to facilitate the violation.102

    Analysis

    In light of the foregoing, it seems that there is ample statutory authority for prosecuting individuals who elicit or disseminate documents similar to those at issue in the Wikileaks release, as long as the intent element can be satisfied and potential damage to national security can be demonstrated.103 There is some authority, however, for interpreting 18 U.S.C. Section 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.104 Publication is not expressly proscribed in 18 U.S.C. Section 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.105 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,"106 or the disclosure of information relating to certain other broadly defined defense matters. The word "publishes" does appear in 18 U.S.C. Section 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. While prosecutions appear to be on the rise, leaks of classified information to the press have not often been punished as crimes. CRS is 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 and whether suspected persons may be extradited to the United States under applicable treaty provisions.

    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."107 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,108 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.109 In United States v. Zehe, a district court judge held in 1985 that a citizen of East Germany could be prosecuted under Sections 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 were committed within East Germany or in Mexico.110 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."111 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."112

    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 could 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.113

    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 limited. The only known case of that type involved two pro-Israel lobbyists in Washington, Steven J. Rosen and Keith Weissman, employed by the American Israel Public Affairs Committee (AIPAC), who 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.114 Their part in the conspiracy included receiving information from government employees with knowledge that the employees were not authorized to disclose it and disclosing that information to others.115 The prosecution was criticized for effectively "criminalizing the exchange of information,"116 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.117 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.118 With respect to the intent requirement, the judge interpreted the term "willfully" in connection with the phrase "reason to believe could be used to the injury of the United States" to require that the prosecution must prove that the defendant disclosed the information "with a bad faith purpose to either harm the United States or to aid a foreign government."119 Later courts confronting the intent issue have differentiated this case to conclude that the "reason to believe" standard does not require an intent to do harm.120

    Extradition Issues121

    There may be several legal obstacles to the extradition of a U.S. citizen or a foreign national to the United States to face charges under the Espionage Act,122 including the possibility that the crime constitutes a political offense for which extradition is unavailable. Extradition to or from the United States is almost exclusively a creature of treaty. The United States has extradition treaties with more than 100 countries, although there are many countries with which it does not.123 In addition to providing an explicit list of crimes for which extradition may be granted, most modern extradition treaties also identify various classes of offenses and situations for which extradition may or must be denied.

    The "political offense" exception has been a common feature of extradition treaties for almost a century and a half, and the exception appears to be contained in every modern U.S. extradition treaty.124 A political offense may be characterized as a pure political offense, or one that is directed singularly at a sovereign entity and does not have the features of an ordinary crime (e.g., there is no violation of the private rights of individuals).125 It may also be characterized as a relative political offense, meaning an "otherwise common crime[] committed in connection with a political act … or common crimes … committed for political motives or in a political context."126

    The political offense exception may pose a significant obstacle to the extradition of a person to the United States to face charges under the Espionage Act. Espionage, along with treason and sedition, has been recognized as a quintessential example of a purely political offense,127 although this recognition may arguably apply only to the "classic case" of espionage on behalf of a foreign government by one who owes allegiance to the aggrieved government.128 Even if the political offense exception applies to the unauthorized disclosure of national defense information, however, the United States could still seek the extradition of a suspect to face other criminal charges (though it would likely be unable to try the fugitive for an offense other than the one for which he was extradited),129 although extradition might be refused if the charged conduct is deemed to have been committed in furtherance of an act of espionage (or other political offense).130

    Extradition is also generally limited to crimes identified in the relevant treaty. Early extradition treaties concluded by the United States typically listed specific crimes constituting extraditable offenses.131 Due in part to their vintage, these agreements did not address criminal offenses related to the dissemination or misuse of defense information. More recent agreements often adopt a dual criminality approach, in which extradition is available when each party recognizes a particular form of misconduct as a punishable offense (subject to other limitations found elsewhere in the applicable extradition treaty).132 No U.S. extradition treaty currently in force lists espionage as an extraditable offense.133 Assuming for the sake of argument that certain offenses under the Espionage Act are not per se political offenses for which extradition may not be granted, it would appear that the United States could only seek the extradition of a person for an espionage offense if the applicable treaty authorized extradition in cases of dual criminality, and the requested state recognized espionage (or perhaps unauthorized receipt or disclosure of protected government information) as a criminal offense under its domestic laws.

    Whether extradition is available for an offense occurring outside the United States may depend in part upon whether the applicable treaty covers extraterritorial offenses. As a general rule, crimes are defined by the laws of the place where they are committed.134 Nations have always been understood to have authority to outlaw and punish conduct occurring outside the confines of their own territory under some circumstances, but the United States now claims more sweeping extraterritorial application for some of its criminal laws than is recognized either in its more historic treaties or by many of today's governments.135 This may complicate any extradition efforts because many U.S. extradition treaties apply only to crimes "committed within the [territorial] jurisdiction" of the country seeking extradition.136 Some contemporary treaties call for extradition regardless of where the offense was committed, while perhaps an equal number permit or require denial of an extradition request that falls within an area where the countries hold conflicting views on extraterritorial jurisdiction.137

    The extradition of a foreign national to the United States to face criminal charges may be impeded by nationality provisions contained in extradition treaties with many countries, which recognize the right of a requested party to refuse to extradite its own nationals. U.S. extradition agreements generally are either silent with respect to nationality, in which case all persons are subject to extradition without regard to their nationality, or they contain a nationality clause that specifies that parties are not bound to deliver up their own nationals, in some cases leaving room for executive discretion.138 Some newer treaties declare that "extradition shall not be refused based on the nationality of the person sought," while others limit the nationality exemption to nonviolent crimes or bar nationality from serving as the basis to deny extradition when the fugitive is sought in connection with a listed offense. In some instances, an extradition treaty does expressly allow a country to refuse to extradite its nationals, but subsequent changes to a party's domestic laws have barred it from honoring requests for the extradition of its subjects.

    The ability of the United States to obtain the extradition of a fugitive for a criminal offense may also be impacted by the existence of competing extradition requests made by other states. The criteria used by a requested state to determine the precedence given to competing extradition requests may be established either by its domestic laws or via its extradition treaties with the requesting countries.139 If the requested state opts to give priority to the extradition request of another country, it might still be possible for the United States to obtain the extradition of the fugitive at a later date. Whether a fugitive extradited to one state can thereafter be extradited to a third country may depend upon the applicable treaties between the relevant states. Some extradition agreements authorize the requesting state to re-extradite a person to a third country in certain circumstances. Generally, re-extradition is only permitted when the state from whom extradition was initially obtained consents to the re-extradition of the fugitive, or the fugitive voluntarily remains in the state where he was initially extradited for a specified period after having been released from custody.140

    Constitutional Issues

    The publication of information pertaining to the national defense or foreign policy 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 of such 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...."141 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."142 Protection of the national security from external threat is without doubt a compelling government interest.143 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.144 Speech likely to incite immediate violence, for example, may be suppressed.145 Speech that would give military advantage to a foreign enemy is also susceptible to government regulation.146

    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.147 Actual damage need not be proved, but potential damage must be more than merely speculative and incidental.148 On the other hand, the Court has stated that "state action to punish the publication of truthful information seldom can satisfy constitutional standards."149 And it has described the constitutional purpose behind the guarantee of press freedom as the protection of "the free discussion of governmental affairs."150

    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,151 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."152 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.153 Typically, courts have been unwilling to review decisions of the executive related to national security or have relied on a strong presumption that the material at issue is potentially damaging.154 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 whistleblowers who reveal information that poses more of a danger of embarrassing public officials than of endangering national security.155

    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 courts have not held that government classification of material is sufficient to show that its release is damaging to the national security,156 courts seem 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.157

    A challenge to the Espionage Act has reached the Supreme Court for decision in only one instance. In Gorin v. United States,158 the Court upheld portions of the act now codified as 18 U.S.C. Sections 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 included 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; the Court 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."159 Whether information was "related to the national defense" was a question for the jury to decide160 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."161 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. Morison162 is significant in that it represents the first case in which a person was convicted for selling classified documents to the media.163 Samuel Loring Morison—charged with providing classified satellite photographs of a Soviet naval vessel 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, that is, he transmitted the photographs to a news organization and not to an agent of a foreign power.164 The U.S. Court of Appeals for 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. Section 793(d) (disclosure by lawful possessor of defense information to one not entitled to receive it).165 The definition of "relating to the national defense" was held not to be overbroad because the jury had been instructed that the government had the burden of showing that the information was so related.166 His motive in permitting publication of the photographs was not found to negate the element of intent.167

    The fact that the Morison prosecution involved a leak to the media, with seemingly no obvious intent to transmit sensitive information to hostile intelligence services, did not persuade the jury nor the courts involved that he lacked culpability. The Justice Department did, however, come under some criticism on the basis that such prosecutions are so rare as to amount to a selective prosecution in his case, raising concerns about the chilling effect such prosecutions could have on would-be whistleblowers who could provide information embarrassing to the government but vital to public discourse.168 On leaving office, President Clinton pardoned Morison.169

    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.170 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.171

    Several 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.172 Still, in a later case, the Court stressed that any prosecution of a publisher for what has already been printed would have to overcome only slightly less insurmountable hurdles.173

    The publication of truthful information that is lawfully acquired enjoys considerable First Amendment protection.174 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."175 (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.176 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.177 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.178

    Bartnicki concerned 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.179 The Espionage Act, by contrast, in some sections, does expressly prohibit the receipt of certain national defense material with knowledge or reason to believe that it "has been or will be obtained, taken, made, or disposed of" contrary to the provisions of the act.180 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.90

    The Atomic Energy Act of 1954, 42 U.S.C. Section 2274, prohibits disclosure of information relating to nuclear energy and weapons. The act creates criminal penalties for anyone who "communicates, transmits, or discloses" documents or information "involving or incorporating Restricted Data" with the "intent to injure the United States" or advantage a foreign nation,91 or who has "reason to believe such data" would have that effect.92

    Finally, 18 U.S.C. Section 2381 creates a criminal prohibition on treason punishable by death, imprisonment, or fine.93 The statute applies when a person "owing allegiance to the United States" levies war against the country or gives its enemies "aid and comfort"94—a term which has been interpreted to include transmitting information to foreign agents.95

    Mens Rea Requirements One of the principal—and most complex—distinguishing factors among statutory prohibitions on the disclosure of protected information, particularly among the various sections of the Espionage Act, is the use of differing mens rea requirements.96 Latin for "guilty mind," the term mens rea refers to the defendant's mental state of culpability that the government must prove in order to secure a conviction.97 For instance, some laws require that the prosecution demonstrates that the defendant intentionally committed the act in question—that is, committed the act with the conscious desire for the harmful conduct to occur—while others require that the act be done with a lesser mens rea (e.g., willfully, knowingly, or negligently).98 Mens Rea and the Espionage Act

    Sections 793(a-c) and 794 of the Espionage Act require the defendant to have acted with "intent or reason to believe" that the national defense information at issue "is to be used to the injury of the United States, or to the advantage of any foreign nation[.]"99 In Gorin, the Supreme Court concluded that this provision requires the defendant to have acted in bad faith against the United States.100

    Sections 793(d-e) and 798 contain dual mens rea elements in certain cases: the defendant must have (1) acted willfully in the act of disclosing the information and (2) with reason to believe the information could be used to injure the United States or to advantage a foreign nation.101 The Supreme Court has described the "willful" standard in the criminal context as generally requiring that the accused was aware her conduct violated the law.102 But, further adding to the complexity of the Espionage Act, the second prong of the mens rea requirements under Sections 793(d-e) does not apply to the disclosure of national-security-related documents and other physical material—only national security information.103 Consequently, an additional burden of proof may be imposed when an individual communicates information to an unauthorized source rather than disclosing the document or other tangible material containing the information.104

    Section 793(f) of the Espionage Act is unique in that it punishes the loss or removal of national defense information resulting from "gross negligence."105 This standard has been described in other contexts as "the failure to exercise even a slight degree of care."106 Prosecutions under the gross negligence provision of 18 U.S.C. Section 793(f) appear to be rare,107 but at least two servicemembers were convicted under this provision, as applied through the UMCJ, for removing classified materials from a government workplace and failing to report or return the material upon discovering it had been removed.108

    Other Mens Rea Requirements

    Apart from the Espionage Act, 18 U.S.C. Section 1924 punishes the knowing removal of classified information by a government employee or contractor, with the intent to retain the information in an unauthorized location. A "knowing" mens rea generally requires the defendant to have been aware that his conduct amounted to criminal behavior.109 Other prohibitions on the disclosure of protected information incorporate the knowing standard either in conjunction with other mens rea requirements110 or standing alone.111

    In some cases, the available punishment depends on the defendant's mental state. For example, under the Atomic Energy Act of 1954, those who disclose documents or information with "intent" to advantage a foreign nation or harm the United States face possible life imprisonment and a $100,000 fine, but those who act with a "reason to believe" information could advantage a foreign nation face a maximum of 10 years in jail and a $50,000 fine.112 Separate provisions apply when government employees, contractors, or military officials disclose restricted information identified in the Atomic Energy Act.113

    Although some modern statutes create what are known as strict liability offenses that require no mens rea at all,114 no current statutes appear to impose strict liability for the unauthorized disclosure or mishandling of classified information.

    The First Amendment Framework

    The publication of information pertaining to the national defense or foreign policy may serve the public interest by providing citizens with information that sheds light on the workings of government, but it seems widely accepted that the public release of at least some of this information poses a significant enough threat to national security 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 "provid[ing] for the common defense."115 Policymakers are faced with the task of balancing these interests within the framework created by the Constitution.

    The First Amendment to the U.S. Constitution provides that "Congress shall make no law ... abridging the freedom of speech, or of the press[.]"116 Where speech is restricted based on its content, the Supreme Court generally applies "strict scrutiny," meaning 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."117 The Supreme Court has described protection of the nation's security from external threat as a classic example of a compelling government interest.118 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.119 Speech likely to incite immediate violence, for example, may be suppressed.120 Speech that would give military advantage to a foreign enemy is also susceptible to government regulation.121

    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 to cause damage to the national defense or foreign relations of the United States.122 Actual damage need not be proved, but potential damage must be more than merely speculative and incidental.123 On the other hand, the Court has stated that "state action to punish the publication of truthful information seldom can satisfy constitutional standards."124 And it has described the constitutional purpose behind the guarantee of press freedom as the protection of "the free discussion of governmental affairs."125

    Although information properly classified in accordance with statute or executive order, if disclosed to a person not authorized to receive it, carries by definition the potential of causing at least identifiable harm to the national security of the United States,126 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 be "closely held."127 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.128 Typically, courts have been unwilling to review decisions of the executive related to national security, or have relied on a strong presumption that the material at issue is potentially damaging.129 Still, judges have recognized that the government must make some showing that the release of specific national defense information has the potential to harm U.S. interests, lest the Espionage Act become a means to punish whistleblowers who reveal information that poses more of a danger of embarrassing public officials than of endangering national security.130

    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 courts have not held that government classification of material is sufficient to show that its release is damaging to national security,131 courts seem 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 such information poses no danger to U.S. national security would be persuasive without some convincing evidence to that effect or proof that the information is not closely guarded by the government.132

    Prosecution of Leaks and Disclosures to the Press

    Although the criminal statutes prohibiting the disclosure of protected information have historically been used to prosecute individuals who made protected information available to foreign governments or against the agents of foreign governments themselves, courts have held that the Espionage Act is not limited to such "classic spying" cases involving foreign governments.133 In some cases, criminal defendants have been successfully prosecuted even when claiming to have an altruistic desire to expose—i.e., leak134—potentially important information regarding government activities to the press or public policy advocacy organizations. And while there have been cases in which the government has been unable to secure convictions or has dropped or significantly reduced criminal charges against alleged leakers,135 no individual has ever been acquitted based on a finding that the public interest in the released information was so great that it justified an otherwise unlawful disclosure. The following section discusses notable criminal prosecutions, both successful and unsuccessful, for leaks to the press or policy advocacy groups.136

    The Criminal Prosecution for the Pentagon Papers Leak The first notable instance of a prosecution for leaked information occurred in 1971 when two analysts at the Rand Corporation, Daniel Ellsberg and Anthony Russo, were indicted for disclosing a classified study prepared by the Department of Defense, which came to be known as the Pentagon Papers, on the role of the United States in the Vietnam War.137 Ellsberg claimed he orchestrated the leak in an effort to influence public opinion and help bring about an end to the Vietnam War.138 In addition to filing a civil action to block the New York Times and Washington Post from publishing the Pentagon Papers, discussed below,139 the government brought criminal charges against Ellsberg and Russo for violations of Section 793 of the Espionage Act, conversion of government property, and conspiracy.140 After more than two months of trial, revelations of government misconduct—including undisclosed wiretaps, a government-ordered break-in at Ellsberg's psychiatrist's office, and destruction of evidence—led the court to order a mistrial and the prosecution to drop its charges.141 Samuel Loring Morison and Jane's Defence Weekly

    In 1985, Samuel Loring Morison became the first person to be convicted for selling classified documents to the media, and the litigation arising from his prosecution, United States v. Morison, remains an important opinion on the requirements for conviction under the Espionage Act.142 Charged with violating Section 793 of the Espionage Act and converting government property by providing classified satellite photographs of a Soviet naval vessel to the British defense periodical Jane's Defence Weekly, Morison argued that he lacked the requisite intent to commit espionage because he transmitted the photographs to a news organization and not to an agent of a foreign power.143 The U.S. Court of Appeals for the Fourth Circuit rejected his appeal, finding the intent to sell photographs that he clearly knew to be classified sufficient to satisfy the mens rea requirement under 18 U.S.C. Section 793(d), which prohibits disclosure by a lawful possessor of defense information to one not entitled to receive it.144 Morison's claim of a salutary motive—he argued that publication of the photos would show the gravity of the threat posed by the Soviet Union and spur public demand for an increased defense budget145—was not found to negate the element of intent.146

    The fact that the Morison prosecution involved a leak to the media, with seemingly no obvious intent to transmit sensitive information to hostile intelligence services, did not persuade the jury, nor the courts, involved that he lacked culpability. The Justice Department did, however, come under some criticism on the basis that such prosecutions are so rare as to amount to a selective prosecution in his case, raising concerns about the chilling effect such prosecutions could have on would-be whistleblowers who could provide information embarrassing to the government but vital to public discourse.147 On leaving office, President Clinton pardoned Morison.148

    Lawrence Franklin and the AIPAC Disclosure

    In 2005, Lawrence Franklin, a defense analyst at the Office of the Secretary of the Department of Defense, was indicted for disclosing classified information regarding American forces in Iraq to an Israeli diplomat and two employees of the American Israel Public Affairs Committee (AIPAC), a lobbying group focused on U.S.-Israel relations.149 Franklin claimed he disclosed the information because he believed the threat to American security posed by Iran required more attention from officials in the National Security Council,150 but he ultimately pled guilty to one count under the Espionage Act and one count of conspiracy to communicate classified information to an agent of a foreign government.151 Franklin's case garnered significant attention when the government brought—and later dropped—charges against the AIPAC lobbyists who were on the receiving end of the leak, discussed below.152

    Shamai Leibowitz, Leaked Transcripts of Calls with the Israeli Embassy The first prosecution for unauthorized disclosure to the media during the Obama Administration occurred in 2009 against Shamai Leibowitz, a Hebrew translator working on contract for the FBI.153 The government accused Leibowitz of disclosing classified information to a blogger in violation of Section 798 of the Espionage Act, but it never publicly identified the exact information disclosed or the identity of the blogger.154 Media outlets reported that Leibowitz disclosed transcripts of conversations caught on FBI wiretaps of the Israeli Embassy in Washington, D.C.155 Leibowitz claimed that his intention was to expose official misconduct, not damage national security,156 but he ultimately pled guilty and was sentenced to 20 months in prison.157 Thomas Drake, NSA Disclosures to the Baltimore Sun In April 2010, following an investigation that began during the George W. Bush Administration, a grand jury indicted a senior official at the National Security Agency (NSA), Thomas Drake,158 on 10 felony charges for providing classified information regarding perceived mismanagement of NSA programs to the Baltimore Sun.159 Drake's original indictment included five counts under the Espionage Act,160 but the prosecution's case suffered setbacks after it was revealed that much of the information at issue was either not classified or had been publicly discussed by other government officials,161 and the court ruled that the government's proposed substitutions for documentary evidence it sought to introduce would not provide an adequate opportunity for the defendant to present his case.162 Drake eventually pled guilty to a single misdemeanor for exceeding his authorized use of an NSA computer.163 Prior to issuing its sentence of one year probation and 240 hours of community service, the court called the government's treatment of Drake in the case "unconscionable," and it declined to impose a fine.164 Jeffrey Sterling, CIA Disclosures to New York Times Reporter James Risen In a second investigation that began during the George W. Bush Administration and was carried into the Obama Administration, former CIA officer Jeffrey Sterling was indicted on December 22, 2010, for disclosing classified information about a covert CIA operation in which flawed nuclear blueprints were provided to Iran through a Russian scientist.165 Sterling disclosed information about the program, which became known as "Operation Merlin," to New York Times reporter James Risen, who discussed it in a 2006 book about the CIA.166 While some believe Sterling acted as a whistleblower about the dangers of Operation Merlin, especially because he raised concerns about the operation to the Senate Intelligence Committee, a jury found Sterling guilty on nine felony counts, including violations of the Espionage Act.167 He was sentenced to 42 months in prison.168 Stephen Jim-Woo Kim, State Department Disclosure to Fox News Correspondent James Rosen A State Department contract analyst, Stephen Jin-Woo Kim, was indicted in August 2010 for disclosing classified information about North Korea's plans to escalate its nuclear program to Fox News correspondent James Rosen.169 Kim faced one count of violating the Espionage Act and one count of making false statements to the FBI.170 After the court denied his motions to dismiss the espionage charges based on the Constitution's Treason Clause as well as the First and Fifth Amendments,171 Kim pled guilty to a single count of disclosing national defense information to a person not authorized to receive it in violation of Section 793(d) of the Espionage Act.172 He was sentenced to 13 months in prison.173 Private Manning and WikiLeaks While serving as an Army intelligence analyst in Baghdad, Private First Class Chelsea (formerly Bradley) Manning downloaded more than 250,000 U.S. State Department diplomatic cables, video footage of an airstrike that resulted in the deaths of civilians, and other classified material from the government's Secret Internet Protocol Router Network (SIPRNET) system.174 When materials were eventually disseminated and published through WikiLeaks, military officials charged Manning with numerous violations of the UCMJ, including aiding the enemy under UCMJ Article 104—a crime that carries a potential for capital punishment or life imprisonment175—and violating the Espionage Act as applied through Article 134 of the UCMJ.176

    Manning pled guilty to 10 charges, including all Espionage Act counts, but prosecutors pursued the remaining charges against him without seeking the death penalty.177 In 2013, Manning was convicted by court-martial of all charges except aiding the enemy, and was sentenced to 35 years of imprisonment, reduction in rank, forfeiture of pay, and a dishonorable discharge.178 On January 17, 2017, President Obama commuted Manning's sentence, which now expires on May 17, 2017.179

    In addition to the criminal prosecution of Manning, a grand jury empaneled in Alexandria, VA, investigated civilian involvement in the matter,180 but information regarding the targets of the investigation and the prosecution's theory of the case remains under seal.181 Although certain media outlets reported that WikiLeaks founder Julian Assange was the subject of a sealed indictment for his role in the disclosure,182 U.S. officials denied that a sealed indictment had been filed,183 and no public charges against Assange have been filed. John Kirakou, Violation of the Intelligence Identities Protection Act In April 2012, a grand jury indicted former CIA officer John Kirakou for charges arising from the alleged disclosure of classified information related to the CIA's detention and interrogation program to journalists.184 Kirakou was indicted on five felony counts: three violations of the Espionage Act, one count of making false statements to federal officials, and one count of violating the Intelligence Identities Protection Act185 for providing the name of a covert CIA operative to a reporter.186 While Kirkaou argued that he had been singled out for prosecution because of his earlier public criticism of the CIA,187 he pled guilty to violating the Intelligence Identities Protection Act,188 in a case that was reported to have been the first conviction under that law in 27 years.189 The remaining charges were dropped as part of his plea agreement, and he was sentenced to 30 months in prison.190 James Hitselberger, Navy Linguist Disclosure to the Hoover Institution

    In May 2012, a grand jury indicted a former Navy contract linguist in Bahrain, James Hitselberger, on three counts of violating the Espionage Act and three counts of unlawful removal of a public record in violation of 18 U.S.C. Section 2071(a)191 for providing certain classified information to the Hoover Institution,192 a public policy think tank at Stanford University. Hitselberger, who claimed that his case was "overcharged,"193 entered into a plea agreement in which all Espionage Act charges were dropped, and he pled guilty to a single misdemeanor count of unlawful removal of classified material under 18 U.S.C. Section 1924194 for attempting to take certain classified materials outside of a secure work area.195 He was sentenced to time served.196

    Donald Sachtleben, Disclosure of Foiled Bomb Plot to the Associated Press

    Donald Sachtleben, a former Special Agent Bomb Technician and then-contractor for the FBI, was charged with multiple counts of violating the Espionage Act in September 2013 for leaking classified information relating to a foiled suicide bombing attack on a U.S.-bound airliner by operatives of Al Qaeda in the Arabian Peninsula.197 Although the government filings did not publicly identify the recipient of the information, it was widely reported that Sachtleben leaked the information to the Associated Press (AP).198 The case garnered significant attention after it was made known that the government subpoenaed AP journalists' phone records for evidence against Sachtleben without advance notice to the targets of the subpoenas.199 Sachtleben ultimately pled guilty to two counts of violating the Espionage Act and was sentenced to 43 month of imprisonment.200

    Edward Snowden, National Security Agency Data-Collection Programs

    In 2013, Edward Snowden, a former contractor working as a computer systems administrator at an NSA facility in Hawaii, was charged in connection with leaking top-secret documents related to certain NSA data-collection programs201 to the Guardian (UK) and the Washington Post.202 Snowden permitted the newspapers to publish his name, but fled to Hong Kong before he could be taken into custody. Snowden reportedly sought asylum in Ecuador203 but remains at large under a temporary residency permit in Russia.204 A still-pending criminal complaint charges Snowden with violating Sections 793(d) and 798(a)(3) of the Espionage Act and theft of government property under 18 U.S.C. Section 641.205 Russia is reported to have declined U.S. requests for extradition.206

    Unauthorized Disclosure by General David Petraeus Former Army General and Director of the CIA David Petraeus was charged with misdemeanor removal of documents and materials containing classified information with intent to retain them at an unauthorized location in violation of 18 U.S.C. Section 1924 in March 2015.207 Petraeus was accused of disclosing classified information to an Army Reserve officer who was writing his biography and with whom Petraeus admitted to having been engaged in a romantic relationship.208 Although his case does not fit the common mold for a leak prosecution because Petraeus did not disclose information to the press or another public policy organization as part of an alleged effort to influence public opinion, his case still received significant public attention given his senior role in the government.209 Petraeus pled guilty to the misdemeanor charge, and prosecutors recommended a $40,000 fine as part of a plea agreement,210 but the court imposed the maximum $100,000 fine based on what it deemed to be the serious nature of the crime.211 Legal Proceedings Involving the Press or Other Recipients of Unlawful Disclosures While courts have held that the Espionage Act and other relevant statutes allow for convictions for leaks to the press,212 the government has never prosecuted a traditional news organization for its receipt of classified or other protected information.213 The plain terms of the Espionage Act, however, do not focus solely on the initial disclosure of national defense information.214 While there is some authority for interpreting portions of the Espionage Act as to exclude "publication" of material from the criminal provisions,215 some have argued that the act could be read to apply to anyone who, while meeting applicable mens rea requirements, disseminates, distributes, receives, or retains national defense information or material, even if such actions are taken as a member of the press.216 On one occasion, the government pursued (but later dropped) Espionage Act charges against two AIPAC lobbyists for their alleged role in receiving and further distributing national security information leaked by a government employee.217 And the role of the press in leak prosecutions became the subject of frequent discussion among legal and media commentators218 following a series of cases in which the government sought to gather evidence from the media about their sources through secret subpoenas that were not made known to their targets. The following section discusses these notable legal proceedings in which members of the press or other recipients of leaked information were implicated in legal proceedings either as the subject of a civil or criminal suit itself or as the target of the government's effort to gather and present evidence. Criminal Prosecution of AIPAC Lobbyists in United States v. Rosen

    The only known instance of criminal prosecution against the recipient of classified information in the context of a leak occurred in the case of Lawrence Franklin's disclosure of classified material to two AIPAC lobbyists, discussed above.219 The lobbyists, Steven J. Rosen and Keith Weissman, 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.220 Their part in the conspiracy included receiving information from government employees with knowledge that the employees were not authorized to disclose it and disclosing that information to others.221 The prosecution was criticized for effectively "criminalizing the exchange of information,"222 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.223

    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.224 With respect to the intent requirement under the Espionage Act, the judge interpreted the term "willfully" in connection with the phrase "reason to believe could be used to the injury of the United States" in Section 793 to require that the prosecution must prove that the defendant disclosed the information "with a bad faith purpose to either harm the United States or to aid a foreign government."225 Later courts confronting the intent issue have differentiated this case to conclude that the "reason to believe" standard does not require the intent to do harm.226

    The Civil Litigation in the Pentagon Papers Case

    With regard to the issue of possible prosecutions of the press for publishing information leaked by a government employee, the most relevant case is likely to be the Pentagon Papers case.227 In addition to the criminal prosecution of Daniel Ellsberg and Anthony Russo for disclosure of the Pentagon Papers, the Nixon Administration filed civil suits against the New York Times and Washington Post, seeking to prevent them from publishing the leaked documents.228 The consolidated case quickly reached the Supreme Court,229 which, in a terse per curiam opinion accompanied by a separate concurring or dissenting opinion by every member of the Court, rejected the government's request for a temporary restraining order and preliminary injunction barring publication.230 Although the fact that the case concerned an injunction against publication in civil suits rather than a prosecution for publication is a significant distinguishing factor, the Supreme Court recognized a high level of First Amendment protection afforded to the press in the Pentagon Papers case. Its decision to deny the injunction may inform decisions involving criminal prosecutions of the press or other media organizations.231

    The Supreme Court's Pentagon Papers decision does not, however, foreclose the possibility that a newspaper or other media outlet could be convicted of a criminal violation for publishing protected information. Several Justices suggested in separate dicta that the newspapers—along with the former government employee who leaked the documents to the press—could be criminally prosecuted under the Espionage Act even if an injunction was not available.232 Still, in a later case, the Court stressed that any prosecution of a publisher for what has already been printed would have to overcome only slightly less insurmountable hurdles.233

    The publication of truthful information that is lawfully acquired enjoys considerable First Amendment protection.234 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."235 (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.)

    In other First Amendment cases, the Supreme Court has established that "routine newsgathering" is presumptively lawful acquisition, the fruits of which may be published without fear of government retribution.236 However, what constitutes "routine newsgathering" has not been further elucidated. In a 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.237 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.238

    Gathering Evidence from the Press

    In most circumstances, no civil or criminal proceedings have been filed against members of the media that receive leaked information or documents during the course of their newsgathering activities, but there have been several cases in which legal disputes arose out of the government's efforts to obtain testimony or records from the members of the press as part of its prosecution of leakers.

    In the trial of former CIA officer Jeffrey Sterling,239 the Obama Administration sought to compel New York Times reporter James Risen to testify regarding classified information the prosecution believed Sterling had provided to Risen.240 Following Risen's motion to quash the trial subpoena, the district court concluded that, under the First Amendment, there is a qualified reporter's privilege241 that may be invoked when a subpoena seeks information about confidential sources or is intended to harass the journalist.242 The district court limited the scope of Risen's testimony such that he was not compelled to reveal his confidential source.243 On appeal, however, the U.S. Court of Appeals for the Fourth Circuit reversed the ruling, holding there is neither a First Amendment privilege nor a federal common-law privilege protecting journalists from being compelled to testify.244 Despite prevailing on appeal, the government did not call Mr. Risen to testify at the jury trial.245

    In the investigation of Donald Sachtleben over leaks of covert efforts to foil a bomb plot on a U.S.-bound airliner,246 the Department of Justice was reported to have been unable to identify the source of the leaks until it issued subpoenas to obtain the calling records for 20 telephone lines associated with AP bureaus and reporters.247 The targets of the subpoenas at the AP were not notified that their information was being collected, prompting criticism in the press of the government's evidence-gathering methods.248 Similarly, the case of former State Department contractor Stephen Jin-Woo Kim's disclosures to Fox News correspondent James Rosen generated attention when it was revealed that the Department of Justice subpoenaed Rosen's emails without notice.249 In its application for the search warrant, the government characterized Rosen as having acted "much like an intelligence officer would run an [sic] clandestine intelligence source,"250 and it asserted in a sworn statement that "there is probable cause to believe that the Reporter has committed a violation of 18 U.S.C. Sec. 793 (Unauthorized Disclosure of National Defense Information), at the very least, either as an aider, abettor, or co-conspirator of Mr. Kim."251 Although Rosen was never charged with a crime in connection with his alleged receipt of classified information, the affidavit's language suggesting he may be charged for violating the Espionage Act was met with considerable criticism in the press.252 The backlash was reported to have contributed to the Department of Justice's decision to revise its policies for investigating leaks.253 The new guidelines, issued in July 2013, provide that "members of the news media will not be subject to prosecution based solely on newsgathering activities."254 The Classified Information Protection Act of 2001 The current laws protecting classified information have been criticized by some as a patchwork of mostly outdated provisions that are vague and inconsistent,255 or that

    The Classified Information Protection Act of 2001

    The current laws protecting classified information have been criticized by some as a patchwork of mostly outdated provisions that are vague and inconsistent, or that they may not cover all the information the government legitimately needs to protect.181256 Conversely, others argue that the laws fail to take due consideration of the value of releasing to the public information that the government would prefer to keep out of view.182

    257

    In 2000, and again in 2001-2002, Congress sought to create 18 U.S.C. Section 798A, subsection (a) of which would have read as follows:

    Whoever, being an officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information, knowingly and willfully discloses, or attempts to disclose, any classified information acquired as a result of such person's authorized access to classified information to a person (other than an officer or employee of the United States) who is not authorized access to such classified information, knowing that the person is not authorized access to such classified information, shall be fined under this title, imprisoned not more than 3 years, or both.183

    258

    The proposed provision would have penalized the disclosure of any material designated as classified for any reason related to national security, regardless of whether the violator intended that the information be delivered to and used by foreign agents (in contrast to 50 U.S.C. Section 783). It would have been the first law to penalize disclosure of information to entities other than foreign governments or their equivalent solely because it is classified, without a more specific definition of the type of information covered.184259 In short, the provision would have made it a crime to disclose or attempt to disclose classified information185260 to any person who does not have authorized access to such information, with exceptions covering disclosures to Article III courts, or to the Senate or House committees or Members, and for authorized disclosures to persons acting on behalf of a foreign power (including an international organization). The provision would have amended the espionage laws in Title 18 by expanding the scope of information they cover. The proposed language was intended to make it easier for the government to prosecute unauthorized disclosures of classified information, or "leaks" of information, that might not amount to a violation of current statutes. The language was also intended to ease the government's burden of proof in such cases by eliminating the need "to prove that damage to the national security has or will result from the unauthorized disclosure,"186261 substituting a requirement to show that the unauthorized disclosure was of information that "is or has been properly classified" under a statute or executive order.

    The 106th Congress passed the measure as part of the Intelligence Authorization Act for Fiscal Year 2001.187262 President Clinton, however, vetoed it, calling it "well-intentioned" as an effort to deal with legitimate concerns about the damage caused by unauthorized disclosures, but "badly flawed" in that it was "overbroad" and posed a risk of "unnecessarily chill[ing] legitimate activities that are at the heart of a democracy."188263 President Clinton explained his view that:

    [a] desire to avoid the risk that their good faith choice of words—their exercise of judgment—could become the subject of a criminal referral for prosecution might discourage Government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities. Similarly, the legislation may unduly restrain the ability of former Government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues. Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive. In such circumstances, this criminal provision would, in my view, create an undue chilling effect.189

    264

    The 107th Congress considered passing an identical provision,190265 but instead directed the Attorney General and heads of other departments to undertake a review of the current protections against the unauthorized disclosure of classified information and to issue a report recommending legislative or administrative actions.191266 An identical measure was introduced late in the 109th Congress, but was not reported out of committee.192

    267

    The Attorney General, in his report to the 108th Congress, concluded thatthe following:

    Although there is no single statute that provides criminal penalties for all types of unauthorized disclosures of classified information, unauthorized disclosures of classified information fall within the scope of various current statutory criminal prohibitions. It must be acknowledged that there is no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information irrespective of the type of information or recipient involved. Given the nature of unauthorized disclosures of classified information that have occurred, however, I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified. It may be that carefully drafted legislation specifically tailored to unauthorized disclosures of classified information generally, rather than to espionage, could enhance our investigative efforts. The extent to which such a provision would yield any practical additional benefits to the government in terms of improving our ability to identify those who engage in unauthorized disclosures of classified information or deterring such activity is unclear, however.193

    268

    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 not been rarecommon, 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.194 The Supreme Court has stated, however, that the 269 The question remains open as to whether the publication of unlawfully obtained information by the media can be punished consistent with the First Amendment.270 Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remainsmay be protected. Whether the publication of national security information can be punished likely turnsmay turn 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

    [author name scrubbed], Legislative Attorney ([email address scrubbed], [phone number scrubbed])
    [author name scrubbed], Senior Specialist in American Public Law ([email address scrubbed], [phone number scrubbed])
    [author name scrubbed], Legislative Attorney ([email address scrubbed], [phone number scrubbed])

    Footnotes

    3. President Donald J. Trump, Feb. 16, 2017 Press Conference, transcript available athttp://www.cnn.com/2017/02/16/politics/donald-trump-news-conference-transcript/ ("I've actually called the Justice Department to look into the leaks. Those are criminal leaks."). 6. 8. 14. 25.

    See infra § "Mens Rea Requirements."

    .

    18 U.S.C. §793(b) (emphasis added). The full subsection criminalizes:

    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

    ....

    18 U.S.C. §793(c) creates criminal penalties for:

    (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]document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything 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.]....

    18 U.S.C. §793(d) creates criminal penalties for the following:

    Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense18 U.S.C. §793(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.

    18 U.S.C. §793(f) criminalizes:

    Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or

    (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of itshis trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer.

    [.]41. Id. §794(a) ("[T]he sentence of death shall not be imposed unless ... the offense resulted in the identification by a foreign power ... 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 defense strategy.

    ").

    18 U.S.C. §795 provides:

    (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

    18 U.S.C. §797 prohibits the publication and sale of photographs of defense installations, and provides that:

    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.

    18 U.S.C. §798 states:

    (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.

    61. Id. §892.

    70. 73. 75. 80. 86. 98. See Bryan v. United States, 524 U.S. 184, 192 (1998); Ratzlaf v. United States, 510 U.S. 135 (1994). See also United States v. Morison, 844 F.2d 1057, 1071 (4th Cir. 1998), cert denied, 488 U.S. 908 (1988); United States v. Truong Dinh Hung, 629 F.2d 908, 919 (4th Cir. 1980. 105.

    Conway v. O'Brien, 312 U.S. 492, 495 (1941) (quoting Shaw v. Moore, 104 Vt. 529, 531 (1932)).

    . See. 123. Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (citing Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)). 133. For a discussion of various definitions of the term "leak," see Pozen, id. (citing treason, sedition, and espionage as examples of purely political offenses); Bassiouni, supra note 1257, at 604521.

    See infra "The Civil Litigation in the Pentagon Papers Case." 152. Scott Shane, Leak Offers Look at Efforts by U.S. to Spy on Israel, N.Y. Times (Sep. 5, 2011), http://www.nytimes.com/2011/09/06/us/06leak.html?_r=2&hp=&pagewanted=all&See CRS Report 94-166, Extraterritorial Application of American Criminal Law, by [author name scrubbed].

    Josh Gerstein, Contractor Pleads Guilty in Leak Case, Politico (Feb. 7, 2014), http://www.politico.com/story/2014/02/stephen-kim-james-risen-state-department-fox-news-103265; Letter from US. Dep't of Justice to Counsel for Stephen Jim-Woo Kim (Feb. 2, 2014See CRS Report 98-958, Extradition To and From the United States: Overview of the Law and Recent Treaties, by [author name scrubbed] and [author name scrubbed]. Even among countries holding fairly expansive views of the extraterritorial jurisdiction, there may be substantial differences between the perceptions of common law countries and those of civil law countries. See Charles L. Blakesley, A Conceptual Framework for Extradition and Jurisdiction Over Extraterritorial Crimes, 1984 Utah L. Rev. 685 (1984).

    182. Ellen Barry and Peter Baker, Snowden, in Russia, Seeks Asylum in Ecuador, N.Y. Times, June 23, 2013, at A1. However, Ecuador later backed away from accepting Snowden. Juan Forero, Ecuador's Strange Journey from Embracing Snowden to Turning Him Away, Wash. Post (July 2, 2013), https://www.washingtonpost.com/news/worldviews/wp/2013/07/02/ecuadors-strange-journey-from-embracing-snowden-to-turning-him-away/. Snowden was originally granted temporary asylum in Russia, but was given a three-year residency permit beginning on August 1, 2014. See Joe Sterling, Russia Gives Snowden 3-Year Residency, CNN (Aug. 7, 2014), http://www.cnn.com/2014/08/07/world/europe/russia-snowden-residency/. 209. See Plea Agreement. 214. Editorial, Time to Call It Quits, Wash. Post, March 11, 2009 (editorial urging Attorney General to drop charges). See N.Y. Times, 403 U.S. at 714. See N.Y. Times Co., 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).

    See Affidavit in Support of Application for a Search Warrant, P 3, No. 10-291-M-01 (D. D.C. Nov. 7, 2011), available at http://apps.washingtonpost.com/g/page/local/affidavit-for-search-warrant/162/ n [hereinafter, "Rosen Warrant Affidavit"]; Charlie Savage, Ex-Contractor at State Dept. Pleads Guilty in Leak Case, N.Y. Times, Feb. 8, 2014, at A10. See also Amitai Etzioni, A Liberal Communitarian Approach to Security Limitations on the Freedom of the Press, 22 Wm. & Mary Bill Rts. J. 1141, 1143-44 (2014). H.R. 4392, 106th Cong. §304 (enrolled bill); H.R. 2943, 107th Cong. Previous unsuccessful bills to criminalize leaks of classified information by government officers and employees include H.R. 319, 104th Cong. (providing for prison term up to 20 years as well as possible fine); H.R. 271, 103d Cong. (same); H.R. 363, 102d Cong. (same); H.R. 279, 101st Cong.; H.R. 3066, 100th Cong.; H.R. 3468, 96th Cong. (would have excluded non-government employees from accomplice liability); H.R. 6057, 95th Cong.; H.R. 13602, 94th Cong.

    See § "The Civil Litigation in the Pentagon Papers Case."
    1.

    The Department of Justice cited an ongoing investigation into the disclosures as a reason to deny a request for information under the Freedom of Information Act (FOIA). See Government Motion for Summary Judgment, Manning v. U.S. Dep't of Justice, Case 1:15-cv-01654 (D.D.C. March 15, 2016).

    2.

    Based on a letter accompanying a grand jury subpoena, there was some speculation that federal prosecutors are pursuing a conspiracy theory under the Espionage Act of 1917, as well as laws prohibiting misuse of government computers and misappropriation of government property. See Ellen Nakashima and Jerry Markon, Documents Offer Hints of U.S. Legal Strategy in WikiLeaks Investigation, Wash. Post, April 29, 2011, at A3. It is believed that a conspiracy theory will permit prosecutors to pursue charges on the basis of activities not subject to First Amendment protection. See Scott Shane, Supporter of Leak Suspect Is Called Before Grand Jury, N.Y. Times, June 16, 2011, at 22. (quoting attorney Abbe D. Lowell).

    3See, e.g., Mark Hensch, WH to Probe Leak of Trump's Australia, Mexico Calls, The Hill (Feb. 3, 2017), http://thehill.com/homenews/administration/317887-wh-to-probe-leak-of-trumps-australia-mexico-calls; Paul Farhi, The Trump Administration has Sprung a Leak. Many of Them, In Fact, Wash. Post (Feb. 5, 2017), https://www.washingtonpost.com/lifestyle/style/the-trump-administration-has-sprung-a-leak-many-of-them-in-fact/2017/02/05/a13fad24-ebe2-11e6-b4ff-ac2cf509efe5_story.html?utm_term=.ef045235e744.
    2.

    See infra § "Private Manning and WikiLeaks" and § "Edward Snowden, National Security Agency Data-Collection Programs." See also Ewen MacAskill, Sam Thielman, & Philip Oltermann, WikiLeaks Publishes 'Biggest Ever Leak of Secret CIA Documents," Guardian (Mar. 7, 2016), https://www.theguardian.com/media/2017/mar/07/wikileaks-publishes-biggest-ever-leak-of-secret-cia-documents-hacking-surveillance.

    See Evan Perez, Holder Puts Top Prosecutors on Leak Probe, Wall St. J., June 9, 2012, at A6 (reporting some accusations that the Obama Administration has itself permitted selective leaks of classified information in order to enhance the President's reelection prospects).

    4.

    See Press Release, U.S. Department of Justice Office of Public Affairs, Assignment of U.S. Attorneys to Lead Investigations of Possible Unauthorized Disclosures of Classified Information (June 8, 2012), http://www.justice.gov/opa/pr/2012/June/12-ag-736.html.

    5.

    See David E. Sanger, Obama Order Sped Up Wave of Cyberattacks Against Iran, N.Y. Times, June 1, 2012, at A1, http://www.nytimes.com/2012/06/01/world/middleeast/obama-ordered-wave-of-cyberattacks-against-iran.html?pagewanted=1&_r=1&hp. The reporting was based, according to the author, "on interviews over the past 18 months with current and former American, European, and Israeli officials involved in the program" and other experts, none of whom were willing to allow names to be printed because of the classified nature of the program.

    6.

    President Donald J. Trump (@realDonaldTrump) (Feb. 16, 2017, 3:58 AM), https://twitter.com/realDonaldTrump/status/832197515248275456 ("Leaking, and even illegal classified leaking, has been a big problem in Washington for years. Failing @nytimes (and others) must apologize!").

    4.

    See Scott Shane and Eric Schmitt, Qaeda Foiled in Plot to Plant Redesigned Bomb on Plane, U.S. Officials Say, N.Y. Times, May 8, 2012, at A12.

    75.

    Jonathan S. Tobin, Trump's Flaws Don't Justify Illegal Leaks, Nat'l Rev. Online (Feb. 16, 2017), http://www.nationalreview.com/article/445011/.

    See, e.g., Jo Becker and Scott Shane, Secret 'Kill List' Proves a Test of Obama's Principles and Will, N.Y. Times, May 29, 2012, at A1.

    8.

    http://www.wikileaks.org/wiki/WikiLeaks:About.

    9.

    Id.

    .

    See infra § "Statutory Protection of Classified Information."

    107.

    Commentators frequently contrast the patchwork nature of U.S. law with the United Kingdom's Official Secrets Act, 1989, c. 6 (U.K.), which more broadly criminalizes the dissemination and retention of numerous classes of government information. See, e.g., David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 626 (2013); William E. Lee, Deep Background: Journalists, Sources, and the Perils of Leaking, 57 Am. U.L. Rev. 1453, 1466-67 (2008).

    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.

    11.

    See Ed Pilkington, Bradley Manning May Face Death Penalty, Guardian (UK), March 3, 2011, http://www.guardian.co.uk/world/2011/mar/03/bradley-manning-may-face-death-penalty (reporting that 22 new charges, including aiding the enemy, were added to the original twelve specifications). Press Release, Vault 7: CIA Hacking Tools Revealed, WikiLeaks (last visited Mar. 7, 2017), https://wikileaks.org/ciav7p1/#PRESS [hereinafter, "Vault 7 Press Release"].

    129.

    Military airstrike video leak suspect in solitary confinement, CNN.com, August 1, 2010, http://www.cnn.com/2010/POLITICS/07/31/wikileaks.manning/index.html.

    13.

    Charlie Savage and Emmarie Huetteman, Manning Sentenced to 35 Years for a Pivotal Leak of U.S. Files, N.Y. Times, August 21, 2013, at A1.

    14.

    10 U.S.C. §904.

    15.

    See Jim Miklaszewski and Courtney Kube, Manning faces new charges, possible death penalty, MSNBC.com, May 3, 2011, http://www.msnbc.msn.com/id/41876046/ns/us_news-security/.

    16.

    10 U.S.C. §802. The only UCMJ offense that applies more broadly than to persons subject to UCMJ jurisdiction under Article 2 is spying, Article 106 (10 U.S.C. §106), which applies to "any person ... in time of war."

    17.

    Charlie Savage, Private Accused of Leaks Offers Partial Guilty Plea, N.Y. Times, November 8, 2012.

    18.

    Charlie Savage, Soldier Admits Providing Files to Wikileaks, N.Y. Times, February 28, 2013.

    19.

    Admiral Michael Mullen, Chairman of the Joint Chiefs of Staff, on Meet the Press, August 1, 2010, transcript available at http://www.msnbc.msn.com/id/38487969/ns/meet_the_press-transcripts/.

    20Nicholas Weaver, The CIA's No Good, Very Bad, Totally Awful Tuesday, Lawfare (Mar. 7, 2017), https://www.lawfareblog.com/cias-no-good-very-bad-totally-awful-tuesday ("Two documents have Top Secret markings, which suggest either a mishandling of classified information or that the attacker managed to compromise a Top Secret CIA internal network.").
    10.

    See MacAskill et al. supra note 2; Scott Shane, Mark Mazetti, & Matthew Rosenberg, WikiLeaks Releases Trove of Alleged C.I.A. Documents, N.Y. Times (Mar. 7, 2017), https://www.nytimes.com/2017/03/07/world/europe/wikileaks-cia-hacking.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news.

    11.

    Vault 7 Press Release, supra note 8.

    12.

    See Seung Min Kim, Sasse to DOJ, Should Assange be in Prison? Politico (Mar. 9, 2017), http://www.politico.com/story/2017/03/ben-sasse-julian-assange-justice-department-235901.

    13.

    See U.S. Const. amend. I ("Congress shall make no law ... abridging the freedom of speech, or of the press[.]").

    See Elisabeth Bumiller, Gates Found Cost of Leaks Was Limited, N.Y. Times, October 17, 2010, at A8 (quoting letter to Senator Levin from Secretary Gates).

    21.

    See The Iraq Archive: The Strands of a War, N.Y. Times, at http://www.nytimes.com/2010/10/23/world/middleeast/23intro.html?_r=1.

    22.

    See Anna Mulrine, Wikileaks Iraq Documents not as Damaging as Pentagon FearedYet, Christian Science Monitor, October 25, 2010. The New York Times has stated it redacted names prior to publishing the leaked materials. See The Iraq Archive, supra note 21. See sources cited supra note 7.

    2315.

    Espionage Act of 1917, Ch. 30, 40 Stat. 217 (codified as amended, at 18 U.S.C. §§793-798).

    16.

    See infra § "Other Relevant Statutes."

    17.

    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).

    18.

    E.g., 18 U.S.C. §§793, 794, 798.

    19.

    See, e.g., Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 Colum. L. Rev. 929, 938-39 (1973) (identifying "major questions" must be answered before determining which statutory provisions may apply to the unauthorized disclosure of information: (1) the type of revelation or communication at issue, (2) the state of mind (or intent) of the person disclosing the information, and (3) the nature of the information that was communicated).

    20.

    See Stephen I. Vladeck, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 Harv. L. & Pol'y Rev. 219, 221 (2007). For much of the nation's history prior to World War I, disclosure of government secrets was prosecuted under more generally applicable statutes punishing treason, entry onto military bases, and theft of government property. United States v. Rosen, 445 F. Supp. 2d 602, 611 (E.D. Va. 2006) (citing Edgar & Schdmidt, supra note 19, at 940).

    21.

    See, e.g., Margaret B. Kwoka, Leaking and Legitimacy, 48 U.C. Davis. L. Rev. 1387, 1413-14 (2015); Pozen, supra note 7, at 554. For more discussion of legal issues and interpretation related to the Espionage Act, see Fern L. Kletter, Validity, Construction, and Application of the Federal Espionage Act, §§793 to 794, 59 A.L.R. Fed. 2d 303 (2016).

    22.

    18 U.S.C. §799, which was enacted as part of the National Aeronautics and Space Act of 1958, P.L. §85-568 §302(c), 72 Stat. 426, 434, is also included in the Espionage and Censorship chapter of the U.S. Code. This provision criminalizes certain violations of National Aeronautics and Space Administration (NASA) regulations related to protection or security of certain facilities, aircraft, spacecraft, and other property. See 18 U.S.C. §799.

    23.

    The statutes address "information respecting the national defense[,]" "information relating to the national defense[,]" and certain documents, maps, and other physical items "connected with the national defense[.]" 18 U.S.C. §§973(a)-(e); §794(a).

    24.

    See, e.g., United States v. Rosen, 445 F. Supp. 2d 602, 607 (E.D. Va. 2006); United States v. Safford, 40 C.M.R. 528, 532 (A.C.M.R. 1969); William E. Lee, Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes, 36 Am. J. Crim. L. 129, 168 (2009).

    State's Secrets, N.Y. Times , November 29, 2010, http://www.nytimes.com/interactive/world/statessecrets.html. According to the Guardian, the fact that most of the cables are dated from 2008 to 2009 is explained by the increase in the number of U.S. embassies linked to the military's secure computer network, SIPRNet, over the past decade. See The US embassy cables, Guardian (UK), http://www.guardian.co.uk/news/datablog/2010/nov/29/wikileaks-cables-data.

    24.

    Scott Shane and Andrew W. Lehren, Leaked Cables Offer Raw Look at U.S. Diplomacy, N.Y. Times, November 29, 2010, at A1.

    25.

    The Guardian states that the earliest of the cables is from 1966. See The US embassy cables, supra note 23.

    26.

    Letter to Ambassador Susman, November 26, 2010, http://documents.nytimes.com/letters-between-wikileaks-and-gov.

    27.

    Letter from State Department Legal Adviser Harold Hongju Koh to Jennifer Robinson, November 27, 2010, http://documents.nytimes.com/letters-between-wikileaks-and-gov.

    28.

    Letter to Ambassador Susman, November 28, 2010, http://documents.nytimes.com/letters-between-wikileaks-and-gov.

    29.

    Tony Capaccio, Pentagon Alerts House, Senate Panels to New Classified WikiLeaks Release, Bloomberg, November 24, 2010, http://www.bloomberg.com/news/2010-11-24/pentagon-warns-house-senate-defense-panels-of-more-wikileaks-documents.html.

    30.

    Id.

    31.

    Id.

    32.

    White House, Statement of the Press Secretary, November 28, 2010, at http://www.whitehouse.gov/the-press-office/2010/11/28/statement-press-secretary. The statement reads in full:

    We anticipate the release of what are claimed to be several hundred thousand classified State department cables on Sunday night that detail private diplomatic discussions with foreign governments. By its very nature, field reporting to Washington is candid and often incomplete information. It is not an expression of policy, nor does it always shape final policy decisions. Nevertheless, these cables could compromise private discussions with foreign governments and opposition leaders, and when the substance of private conversations is printed on the front pages of newspapers across the world, it can deeply impact not only US foreign policy interests, but those of our allies and friends around the world. To be clear—such disclosures put at risk our diplomats, intelligence professionals, and people around the world who come to the United States for assistance in promoting democracy and open government. These documents also may include named individuals who in many cases live and work under oppressive regimes and who are trying to create more open and free societies. President Obama supports responsible, accountable, and open government at home and around the world, but this reckless and dangerous action runs counter to that goal. By releasing stolen and classified documents, Wikileaks has put at risk not only the cause of human rights but also the lives and work of these individuals. We condemn in the strongest terms the unauthorized disclosure of classified documents and sensitive national security information.

    33.

    Memorandum from Jacob J. Lew, Director, Office of Management and Budget to Heads of Executive Departments and Agencies (November 28, 2010), at http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/m11-06.pdf. For other White House responses to the WikiLeaks disclosures, see FACT SHEET: Safeguarding the U.S. Government's Classified Information and Networks (October 7, 2011), at https://www.whitehouse.gov/the-press-office/2011/10/07/fact-sheet-safeguarding-us-governments-classified-information-and-networ.

    34.

    See Mark Landler and Scott Shane, U.S. Sends Warning to People Named in Cable Leaks, N.Y. Times, January 6, 2011.

    35.

    Id.

    36.

    For information related to the content of the cables, see Wikileaked: Inside the State Department's Secret Cables, Foreign Pol'y, http://wikileaks.foreignpolicy.com/; The US embassy cables, supra note 23.

    37.

    See Kim Zetter, U.S. Sources Exposed as Unredacted State Department Cables Are Unleashed Online, Threat Level (September 1, 2011, 3:22 PM), http://www.wired.com/threatlevel/2011/09/wikileaks-unredacted-cables/.

    38.

    See Scott Shane, Spread of Leaked Cables on Web Prompts Dispute, N.Y. Times, September 1, 2011, http://www.nytimes.com/2011/09/02/us/02wikileaks.html?_r=1.

    39.

    See Scott Shane, Ex-N.S.A. Official Takes Plea Deal, N.Y. Times, June 10, 2011, at A1, http://www.nytimes.com/2011/06/10/us/10leak.html?_r=1.

    40.

    See Ellen Nakashima, Ex-NSA official Thomas Drake to plead guilty to misdemeanor, Wash. Post, June 9, 2011, at http://www.washingtonpost.com/national/national-security/ex-nsa-manager-has-reportedly-twice-rejected-plea-bargains-in-espionage-act-case/2011/06/09/AG89ZHNH_story.html.

    41.

    See Jane Mayer, The Secret Sharer, New Yorker, May 23, 2011, http://www.newyorker.com/reporting/2011/05/23/110523fa_fact_mayer.

    42.

    United States v. Drake, No. 10-00181 (D. Md.) (Government Motion to Dismiss the Indictment at the Time of Sentencing) (filed June 10, 2011), http://www.fas.org/sgp/jud/drake/061011-dismiss.pdf.

    43.

    See Steven Aftergood, Handling of Drake Leak Case was "Unconscionable," Court Said, Secrecy News (July 29, 2011), http://www.fas.org/blog/secrecy/2011/07/drake_transcript.html.

    44.

    See Press Release, Department of Justice, Former FBI Contract Linguist Pleads Guilty to Leaking Classified Information to Blogger (December 17, 2009), http://www.justice.gov/opa/pr/2009/December/09-nsd-1361.html.

    45.

    Id.

    46.

    See Matt Apuzzo, Ex-C.I.A. Officer Sentenced in Leak Case Tied to Times Reporter, N.Y. Times, May 11, 2015, at http://www.nytimes.com/2015/05/12/us/ex-cia-officer-sentenced-in-leak-case-tied-to-times-reporter.html.

    47.

    Steven Aftergood, Reporter Risen Will Not Have to Identify Source in Leak Trial, Secrecy News (August 1, 2011), http://www.fas.org/blog/secrecy/2011/08/risen_off_hook.html. For an overview of the law regarding the reporter's privilege, see CRS Report RL34193, Journalists' Privilege: Overview of the Law and Legislation in the 113th Congress, by [author name scrubbed].

    48.

    See Government's Motion for Clarification and Reconsideration, United States v. Sterling, No. 1:10cr485 (E.D. Va. August 24, 2011), http://www.fas.org/sgp/jud/sterling/082411-recon.pdf.

    49.

    United States v. Sterling, 724 F.3d 482 (4th Cir. 2013), reh'g en banc denied, 732 F.3d 292, (4th Cir. 2013), cert. denied, 134 S. Ct. 2696 (2014).

    50.

    See Brief of Defendant-Appellant Jeffrey Alexander Sterling to the U.S. Court of Appeals for the Fourth Circuit, United States v. Sterling, No. 15-4297, filed Feb. 22, 2016, at 13, available at http://www.fas.org/sgp/jud/sterling.

    51.

    See Spencer S. Hsu, State Dept. contractor charged in leak to news organization, Wash. Post, August 28, 2010.

    52.

    Ann E. Marimow, A rare peek into a Justice Department leak probe, Wash. Post, May 19. 2013. Despite the fact that Mr. Rosen was not indicted, the DOJ's investigation into his activities—especially the seizure of his phone records—was widely criticized in the press as an overreach. See Amitai Etzioni, A Liberal Communitarian Approach to Security Limitations on the Freedom of the Press, 22 Wm. & Mary Bill Rts. J. 1141, 1143-44 (2014).

    53.

    See Hsu, supra, note 51.

    54.

    United States v. Kim, 808 F. Supp. 2d 44 (D.D.C. 2011).

    55.

    See Ann E. Marimow, Ex-State Department adviser Stephen J. Kim sentenced to 13 months in leak case, Wash Post, Apr. 2, 2014, at https://www.washingtonpost.com/world/national-security/ex-state-dept-adviser-stephen-j-kim-sentenced-to-13-months-in-leak-case/2014/04/02/f877be54-b9dd-11e3-96ae-f2c36d2b1245_story.html.

    56.

    50 U.S.C. §§3121-22. For more information about this statute, see CRS Report RS21636, Intelligence Identities Protection Act, by [author name scrubbed].

    57.

    United States v. Kiriakou, 898 F. Supp. 2d 921 (E.D. Va. 2012) (holding that the scienter requirement for violating the Espionage Act by disclosing intangible information requires the government to establish only that the possessor of the information had reason to believe that the information could be used to the injury of the United States or the advantage of any foreign nation).

    58.

    Press Release, U.S. Attorney for the Eastern District of Virginia, "Former CIA Officer John Kirakou Pleads Guilty to Disclosing Classified Information About CIA Officer," October 23, 2012, http://www.fbi.gov/washingtondc/press-releases/2012/former-cia-officer-john-kirakou-pleads-guilty-to-disclosing-classified-information-about-cia-officer.

    59.

    United States v. Kiriakou, No. 1:12CR00127-001 (E.D. Va. 2013) (Trial Order).

    60.

    Mark Mazzetti and Michael S. Schmidt, Ex-Worker at C.I.A. Says He disclosed U.S. Surveillance, N.Y. Times, June 10, 2013, at A1.

    61.

    Ellen Barry and Peter Baker, Snowden, in Russia, Seeks Asylum in Ecuador, N.Y. Times, June 23, 2013, at A1. However, Ecuador later backed away from accepting Snowden. Juan Forero, Ecuador's strange journey from embracing Snowden to turning him away, Wash. Post, July 2, 2013, at https://www.washingtonpost.com/news/worldviews/wp/2013/07/02/ecuadors-strange-journey-from-embracing-snowden-to-turning-him-away/.

    62.

    Peter Finn and Sari Horwitz, U.S. files charges against Snowden, Wash. Post, June 22, 2013, at A1 (reporting that DOJ officials have filed a criminal complaint).

    63.

    Adam Goldman, How David Petraeus avoided felony charges and possible prison time, Wash. Post, Jan. 25, 2016, at https://www.washingtonpost.com/world/national-security/how-david-petraeus-avoided-felony-charges-and-possible-prison-time/2016/01/25/d77628dc-bfab-11e5-83d4-42e3bceea902_story.html.

    64.

    Josh Gerstein, Ex-Navy linguist pleads guilty in secret documents case, Politico: Under the Radar (Apr. 25, 2014 1:18 PM EDT), http://www.politico.com/blogs/under-the-radar/2014/04/ex-navy-lingust-pleads-guilty-in-secret-documents-case-187436#ixzz4HczFbYCE.

    65.

    Although the Espionage Act is divided into discrete sections, observers have noted that its provisions can be seen as overlapping. See, e.g., Vladeck, supra note 20, at 222. Over the years, courts and commentators have criticized the Espionage Act as "excessively, complex, confusing, indeed impenetrable." Rosen, 445 F. Supp. 2d at 613 (citing various judicial opinions and scholarly commentaries).

    26.

    312 U.S. 19 (1941).

    27.

    Id. at 28.

    28.

    The government must demonstrate that disclosure of a document is at least "potentially damaging" to the United States or advantageous to a foreign government. See United States v. Morison, 844 F.2d 1057, 1073 (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. At least one judge has held that in the case of a disclosure of intangible information, the government needs to prove only that the defendant has reason to believe that such information is potentially damaging, which, in the case of a person with access to classified information, can largely be inferred from the fact that information is classified. See United States v. Kiriakou, 898 F.Supp. 2d 921, 922 (E.D. Va. 2012) (scienter requirement heightened in the case of disclosure of intangible national defense information); id. at 925 (noting that defendant was a "government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed").

    29.

    See, e.g., Gorin, 312 U.S. at 23; Morison, 844 F.2d at 1063.

    30.

    See 18 U.S.C. §952 (prohibiting the disclosure or publication of certain diplomatic material obtained "by virtue of … employment by the United States").

    6631.

    Act of October 6, 1917, ch. 106, §10(i), 40 Stat. 422.

    Gorin, 312 U.S. at 27-28.
    6732.

    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).

    18 U.S.C. §793.
    6833.

    18 U.S.C. §793(a)-(c) provides:

    creates criminal penalties for:

    (a) Whoever, for the purpose of obtaining information respecting the national defense with intent 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) ....

    34. 35.
    6936.

    Compare 18 U.S.C. §793(a)-(b) with id. §793(c). See also Vladeck, supra note 20, at 222-23.

    37.
    70.

    18 U.S.C. §793(e) provides:

    Whoever having unauthorized possession of, access to, or control over any document [or other protected thing related to the national defense], 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 ...or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand 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.

    Section 793(d) is identical to §794(e), except that it applies to persons with authorized access to the information at issue, in which case the failure to deliver offense applies to failure to turn the information over to a government official only if there was a demand for its return.

    Section 793(f) likewise applies only to those with authorized access to the covered materials, punishing those who

    [.]

    38.
    7139.

    Id.

    40.

    18 U.S.C. §793(e) creates penalties for:

    Whoever having unauthorized possession of, access to, or control over any document [or other protected thing related to the national defense], 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[.]

    The government must demonstrate that disclosure of a document 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.At least one judge has held that in the case of a disclosure of intangible information, the government needs to prove only that the defendant has reason to believe that such information is potentially damaging, which, in the case of a person with access to classified information, can largely be inferred from the fact that information is classified. See United States v. Kiriakou, 898 F.Supp. 2d 921, 922 (E.D. Va. 2012) (scienter requirement heightened in the case of disclosure of intangible national defense information); id. at 925 (noting that defendant was a "government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed").

    72.

    See 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."). While Gorin dealt with a violation that required reason to believe materials obtained or transmitted were to be used to harm the United States or benefit a foreign nation, it seems likely that the public nature of information would also negate a reason to believe that its disclosure could harm U.S. national security for the purposes of 18 U.S.C. §793(d-e).

    73.

    United States v. Squillacote, 221 F.3d 542, 578 (4th Cir. 2000).

    74.

    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).

    75.

    §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)]).

    18 U.S.C. §793(f).

    42.

    18 U.S.C. §793(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.

    43.

    United States v. Morison, 844 F.2d 1057, 1065 (4th Cir.), cert. denied, 488 U.S. (1988) ("Manifestly, section 794 is a far more serious offense than section 793(d); it covers the act of 'classic spying'; and, because of its seriousness, it authorizes a far more serious punishment than that provided for section 793(d).").

    44.

    18 U.S.C. §794.

    45.

    See Morison, 844 F.2d at 1065 ("The two statutes differ—and this is the critical point to note in analyzing the two statutes—in their identification of the person to whom disclosure is prohibited.").

    46.

    Id. §794(b).

    47.

    Id. §794(c).

    48.

    Id. §794(a)-(b).

    49.
    7650. See id. §794(b). In addition, during.

    Section 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....

    77.

    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.

    7851.

    18 U.S.C. §794(d). Proceeds go to the Crime Victims Fund.

    79.

    §795. Photographing and sketching defense installations

    52.

    Compare id. §794 with id. §793(h). Accord Mary-Rose Papandrea, National Security Information and the Role of Intent, 56 Wm. & Mary L. Rev. 1381, 1382-83 (2015).

    53. 54.
    80.

    §798. Disclosure of classified information

    55.

    See 18 U.S.C. §796 (Prohibiting "the use of an aircraft or any contrivance used, or designed for navigation or flight in the air, for the purpose of making a photograph, sketch, picture, drawing, map, or graphical representation of vital military or naval installations or equipment[.]").

    56.

    Id. §§795-797.

    57.
    8158.

    18 U.S.C. §798(b).

    82Id. §798(a-b).
    59.

    Id. §7998(b).

    60.

    Id. §7998(a).

    Persons subject to the UCMJ include members of regular components of the Armed Forces, cadets and midshipmen, members of reserve components while on training, members of the National Guard when in federal service, members of certain organizations when assigned to and serving the Armed Forces, prisoners of war, persons accompanying the Armed Forces in the field in time of war or a "contingency operation," and certain others with military status. 10 U.S.C. §802.

    8362.

    10 U.S.C. §906a(a) provides:

    Art. 106a. Espionage

    (a)(1) Any person subject to [the UCMJ, chapter 47 of title 10, U.S.C.] who, 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, or attempts to communicate, deliver, or transmit, to any entity described in paragraph (2), either directly or indirectly, anything described in paragraph (3) shall be punished as a court-martial may direct, except that if the accused is found guilty of an offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack, (B) war plans, (C) communications intelligence or cryptographic information, or (D) any other major weapons system or major element of defense strategy, the accused shall be punished by death or such other punishment as a court-martial may direct.

    (2) An entity referred to in paragraph (1) is—

    (A) a foreign government;

    (B) a faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States; or

    (C) a representative, officer, agent, employee, subject, or citizen of such a government, faction, party, or force.

    (3) A thing referred to in paragraph (1) is a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense.

    8463.

    10 U.S.C. §906a(b)-(c).

    8564.

    10 U.S.C.Id. §906a(c).

    65.
    8666.

    10 U.S.C. Id. §904.

    8767.

    10 U.S.C. Id. §934.

    8868.

    Id.

    8969.

    18 U.S.C. §1030(a)(1).

    Charges of conspiracy or aiding and abetting may be available with respect to any of the statutes summarized here, even if the statutes themselves do not mention such charges under the general conspiracy statute, 18 U.S.C. §371, or for aiding and abetting and the like under 18 U.S.C. §§2-4, unless otherwise made inapplicable. Some of the provisions that apply only to government employees or persons with authorized access to classified information may therefore be applied to a broader set of potential violators. For more information about conspiracy law, see CRS Report R41223, Federal Conspiracy Law: A Brief Overview, by [author name scrubbed].

    9071.

    10 U.S.C. §1030(c).

    72.

    Id. §1030(c)(1)(B).

    See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988), cert. denied, 488 U.S. 908 (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 Drug Enforcement Agency 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, October 3, 2003, at A5 (reporting prosecution of Jonathan Randel under conversion statute for leaking government documents to journalist).

    9174.

    18 U.S.C. §641.

    The Intelligence Identities and Protection Act of 1982, codified at 50 U.S.C. §§3121-26. For more information, see CRS Report RS21636, Intelligence Identities Protection Act, by [author name scrubbed]. 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. §3126(4)(c). "Intelligence agency" is defined as elements of the intelligence community, to include some offices within the Department of Defense, and intelligence elements of the Army, Navy, Air Force, Marine Corps, and Coast Guard; informant means "any individual who furnishes information to an intelligence agency in the course of a confidential relationship protecting the identity of such individual from public disclosure." 50 U.S.C. §3126(5-6). The definitions may 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 cancould 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. §3124.

    9276.

    Persons with direct access to information regarding the identities are subject to a prison term of not more than 15 years, while those who learn the identities through general access to classified information are subject to a term not greater than 10 years. 50 U.S.C. §3121. Charges of conspiracy, aiding and abetting, or misprision of felony are not available in connection with the offense, except in the case of a person who engaged in a pattern of activities to disclose the identities of covert agents or persons with authorized access to classified information. 50 U.S.C. §3122(b).

    9377.

    50 U.S.C. §3121.

    78.

    Id. §3121(c).

    79.

    Id. §3121(a)-(c).

    See Richard B. Schmitt, Rare Statute Figures in Rove Case, L.A. 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); Charlie Savage, Former C.I.A. Operative Pleads Guilty in Leak of Colleague's Name, N.Y. Times, October 23, 2012 (John Kiriakou pleaded guilty to disclosing a colleague's name to a journalist).

    9481.

    18 U.C.S. §1924 provides:

    (a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined not more than $ 1,000, or imprisoned for not more than one year, or both.

    (b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).

    (c) In this section, the term "classified information of the United States" means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.

    9582.

    Id.

    9683.

    18 U.S.C. §952.

    9784.

    Such transmissions may still be covered by the prohibition if the material was, or purports to have been, prepared using an official diplomatic code. It is unclear whether messages that are encrypted for transmission are covered.

    9885.

    See 18 U.S.C. §1924(a).

    50 U.S.C. §783(a) provides:

    Communication of classified information by Government officer or employee. It shall be unlawful for any officer or employee of the United States or of any department or agency thereof, or of any corporation the stock of which is owned in whole or in major part by the United States or any department or agency thereof, to communicate in any manner or by any means, to any other person whom such officer or employee knows or has reason to believe to be an agent or representative of any foreign government , any information of a kind which shall have been classified by the President (or by the head of any such department, agency, or corporation with the approval of the President) as affecting the security of the United States, knowing or having reason to know that such information has been so classified, unless such officer or employee shall have been specifically authorized by the President, or by the head of the department, agency, or corporation by which this officer or employee is employed, to make such disclosure of such information.

    9987.

    50 U.S.C. 783(b) provides:

    Receipt of, or attempt to receive, by foreign agent or member of Communist organization, classified information. It shall be unlawful for any agent or representative of any foreign government knowingly to obtain or receive, or attempt to obtain or receive, directly or indirectly, from any officer or employee of the United States or of any department or agency thereof or of any corporation the stock of which is owned in whole or in major part by the United States or any department or agency thereof, any information of a kind which shall have been classified by the President (or by the head of any such department, agency, or corporation with the approval of the President) as affecting the security of the United States, unless special authorization for such communication shall first have been obtained from the head of the department, agency, or corporation having custody of or control over such information.

    10088.

    50 U.S.C. §783(c).

    10189.

    Id.

    10290.

    50 U.S.C. §783(e).

    103.

    It appears the intent element varies depending on the provision. In general, it is satisfied by proof that the material was obtained or disclosed willfully "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.

    10491.

    42 U.S.C. §2274.

    92.

    Id. §2274(b).

    93.

    18 U.S.C. §2381. The treason statute is predicated on Article III, Section 3 of the Constitution, which states:

    Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

    94.

    18 U.S.C. §2381.

    95.

    See Chandler v. United States, 171 F.2d 921, 941 (1st Cir. 1948) (affirming conviction of defendant convicted of treason predicated on his radio broadcasting within the German Reich during World War II); United States v. Greathouse, 26 F. Cas. 18, 24 (C.C.N.D. Cal. 1863) ("[I]f a letter containing important intelligence for the insurgents be forwarded, the aid and comfort are given, though the letter be intercepted on its way.").

    96.

    For more background on mens rea requirements in federal criminal law, see CRS Report R44464, Mens Rea Reform: A Brief Overview, by [author name scrubbed]. For scholarly treatment of the complex intent requirements in applicable statutes, see Papandrea, supra note 52.

    97.

    Black's Law Dictionary (10th ed. 2014) ("The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.").

    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).

    105.

    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 the Espionage Act can be construed to except publication).

    106.

    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, August 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, August 17, 2010; Ed Pilkington, Bradley Manning leak did not result in deaths by enemy forces, court hears, The Guardian, July 13, 2013 (officer investigating impact of Wikileaks release says at Manning sentencing hearing there are no specific examples of deaths from the release). There appears to be no court precedent interpreting "agent of the United States" in the context of 18 U.S.C. §794(a).

    107.

    See CRS Report R44464, Mens Rea Reform: A Brief Overview, supra note 96, at 1. See also Model Penal Code §2.02 (defining "Kinds of Culpability").

    99.

    18 U.S.C. §§793(a-c); 794(a).

    100.

    United States v. Gorin, 312 U.S. 19, 27 (1941).

    101.

    At least one court has read these two elements together to require that the prosecution must prove that the defendant disclosed the information "with a bad faith purpose to either harm the United States or to aid a foreign government." United States v. Rosen, 445 F. Supp. 2d 602, 626 (E.D. Va. 2006). Later courts confronting the intent issue have differentiated this case to conclude that the "reason to believe" standard does not require an intent to do harm. See United States v. Drake, 818 F. Supp. 2d 909, 916 (D. Md. 2011) (distinguishing intent requirements between disclosures involving tangible documents and those involving intangible information); United States v. Kiriakou, 898 F. Supp. 2d 921, 924-27 (E.D. Va. 2012) (surveying case law and noting that a Fourth Circuit interlocutory appeal, United States v. Rosen, 557 F.3d 192, 194 (4th Cir. 2009), cast doubt on the district judge's interpretation).

    102.

    See United States v. Zehe, 601 F. Supp. 196, 198 (D. Mass. 1985) (citing former 18 U.S.C. §791 repealed by P.L. 87-369, 75 Stat. 795(1961)).

    108103.

    18 U.S.C. §793(d-e) prohibit disclosure of national defense information when the possessor has reason to believe the information "could be used to the injury of the United States or to the advantage of any foreign nation[,]" but they do not apply the same "reason to believe requirement" to the disclosure of documents and other physical items. See New York Times Company v. United States, 403 U.S. 713, 738 n. 9 (1971) (White, J. concurring); United States. v. Drake, 818 F. Supp. 2d 909, 916-18 (D. Md. 2011); Kiriakou, 898 F. Supp. 2d at 923. In other provisions of the Espionage Act, the same standards apply to disclosure of information and physical material. E.g. 18 U.S.C. §793(f).

    104.

    See, e.g., Drake, 818 F. Supp. 2d at 920-21 (distinguishing requirements for conviction under the Espionage Act when a "whistleblower" contacts the press about information that is believed to be of national concern versus when an individual retains a classified document relating to the national defense).

    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 also apply 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).

    109.

    Zehe, 601 F. Supp 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.").

    110.

    Id. at 197.

    111.

    18 U.S.C. §793(f) (providing for criminal penalties for "[w]hoever, being entrusted with or having lawful possession or control of any document, writing, code book ... or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed[.]").

    106.

    Id. at 199.

    112107.

    Id.

    113.

    Henry Giniger and Milt Freudenheim, Free to Spy Another Day?, N.Y. Times, Jun 16, 1985, at A.4.

    114Although there have been at least three charges under 18 U.S.C. §793(f) for unlawful transmission or retention of national defense information since January 1, 2000, CRS was able to identify only one charge under the gross negligence provision of this section. That charge was made against former FBI Agent James Smith, who was suspected of supplying classified information to a Chinese national over the course of a 20-year period. See Indictment, United States v. Smith, No. CR-03-4290M (C.D. Cal. May 7, 2003); Vincent J. Schodolski, Ex-FBI Agent Indicted in China Spy Case, Chi. Tribune (May 8, 2003), http://articles.chicagotribune.com/2003-05-08/news/0305080212_1_katrina-leung-los-angeles-fbi-chinese-fugitive. Smith ultimately pled guilty to the lesser charge of making false statements under 18 U.S.C. §1001. 108.

    United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006) (Rosen and Weissman were charged with conspiracy under 18 U.S.C. §793(g) to violate 18 U.S.C. §793 (d) & (e); Rosen was additionally charged with another violation of 18 U.S.C. §793(d)); see Jerry Markon, U.S. Drops Case Against Ex-Lobbyists, 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).

    115.

    Rosen, 445 F. Supp. 2d at 608; 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").

    116.

    Time to Call It Quits, Wash. Post, March 11, 2009 (editorial urging Attorney General to drop charges).

    117Gonzalez, 16 M.J. 428, 429 (C.M.A. 1983) (defendant "intermingled two classified messages with personal mail" which he removed from work before traveling to a friend's home where he left the materials in a desk drawer); United States v. Roller, 42 M.J. 264, 265 (C.A.A.F. 1995) (upon leaving his position at the Intelligence Division of the United States Marine Corps Headquarters, defendant placed classified material in a gym bag containing his personal effects and did not report the misplaced documents upon discovering them). For potential distinguishing characteristics between prosecutions for gross negligence under the UCMJ versus prosecutions against civilians, see John Ford, Why Intent, Not Gross Negligence, is the Standard in Clinton Case, War on the Rocks (July 14, 2016), https://warontherocks.com/2016/07/why-intent-not-gross-negligence-is-the-standard-in-clinton-case/.
    109.

    See Elonis v. United States, 135 S. Ct. 2001, 2011 (2015) (quoting Staples v. United States, 511 U.S. 600, 607 (U.S. 1994)) ("knowing" standard generally requires "awareness of some wrongdoing").

    110.

    See 50 U.S.C. §3121 (prohibiting the intentional disclosure of information identifying a covert agent while knowing that the information disclosed identifies the covert agent and the United States is taking affirmative measures to conceal the agent's status).

    111.

    See 50 U.S.C. §783 (penalizing government officers or employees who, without proper authority, communicate classified information to a person who the employee "knows or has reason to believe" is an agent or representative of a foreign government).

    112.

    42 U.S.C. §2274(a-b).

    113.

    See id. §2277.

    114.

    Liability, Black's Law Dictionary (10th ed. 2014).

    115.

    U.S. Const., pmbl.

    116.

    Id., amend. I. 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 [author name scrubbed].

    117.

    Sable Commc'ns of Cal. v. Fed. Commc'ns Comm'n, 492 U.S. 115, 126 (1989).

    118.

    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 (1964); accord Cole v. Young, 351 U.S. 536, 546 (1956)).

    119.

    See Schenck v. United States, 249 U.S. 47 (1919) (formulating "clear and present danger" test).

    120.

    Brandenburg v. Ohio, 395 U.S. 444 (1969).

    121.

    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.").

    122.

    "National Security" is defined as national defense and foreign relations. See Exec. Order No. 13526, 75 Fed. Reg. 707 §6.1(cc) (2010).

    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, 553 U.S. at 304.

    118.

    See Markon, supra note 114 (quoting Dana J. Boente, the then-Acting U.S. Attorney for the
    Eastern District of Virginia, 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." Rosen, 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)).

    119.

    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); see generally 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)).

    124.

    Rosen, 445 F. Supp. 2d at 625.

    120125.

    See United States v. Drake, 818 F. Supp. 2d 909, 916 (D. Md. 2011) (distinguishing intent requirements between disclosures involving tangible documents and those involving intangible information); United States v. Kiriakou, 898 F. Supp. 2d 921, 924-27 (E.D. Va. 2012) (surveying case law and noting that 4th Cir. interlocutory appeal in the Rosen case cast doubt on the district judge's interpretation).

    121.

    This section is contributed by [author name scrubbed], Legislative Attorney.

    122.

    For a discussion of these issues as they relate to the possible extradition of Edward Snowden, see CRS Legal Sidebar WSLG561, U.S. May Face Significant Obstacles in Attempt to Apprehend Edward Snowden, by [author name scrubbed] and [author name scrubbed].

    123.

    A current list of countries with which the United States has an extradition treaty is found in CRS Report 98-958, Extradition To and From the United States: Overview of the Law and Recent Treaties, by [author name scrubbed] and [author name scrubbed], at Appendix A.

    124Mills 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 likely an implausible argument to posit that the First Amendment 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."). The Supreme Court invalidated, on First Amendment grounds, a statute that required postal authorities to detain unsealed mail from abroad deemed to contain "communist political propaganda" unless the recipient affirms a desire to receive it. Lamont v. Postmaster General, 381 U.S. 301 (1965). Likewise, the fact that organizations like WikiLeaks are not typical newsgathering and publishing companies 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).
    126.

    Exec. Order No. 13526, 75 Fed. Reg. 707 §1.2 (2010) ("Classified National Security Information"). Section 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.

    127.

    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).

    128.

    See, e.g., United States v. Abu-Jihaad, 600 F.Supp.2d 362, 385-86 (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).

    129.

    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.").

    130.

    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), cert. denied, 488 U.S. 908 (1988).

    131.

    See, e.g., Scarbeck v. United States, 317 F.2d 546 (D.C. Cir. 1962) (holding that 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).

    132.

    See United States v. Dedeyan, 594 F.2d 36, 39 (4th Cir. 1978).

    See, e.g., Australian Extradition Treaty, art. VII(1), entered into force May 8, 1976, 27 U.S.T. 957 ("Extradition shall not be granted … when the offense in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offense of a political character."); Ecuadorian Extradition Treaty, art. 3, entered into force November 12, 1872, 18 Stat. 199 (similar); Norwegian Extradition Treaty, art. 7, entered into force March 7, 1980, 31 U.S.T. 5619 (similar); United Kingdom Extradition Treaty, art. 4, entered into force April 26, 2007, S. Treaty Doc. 108-23 ("Extradition shall not be granted if the offense for which extradition is requested is a political offense."); Swedish Extradition Treaty, art. 5, entered into force December 3, 1963, 14 U.S.T. 1845 ("Extradition shall not be granted....[i]f the offense is regarded by the requested State as a political offense or as an offense connected with a political offense.").

    125.

    Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir. 1986). See also M. Cherif Bassiouni, International Extradition: United States Law and Practice (Bassiouni) 604 (5th ed. 2007).604; Charles Cantrell, The Political Offense Exception to Extradition: A Comparison of the United States, Great Britain and the Republic of Ireland, 60 Marq. L. Rev. 777, 780 (1977).

    126.

    Quinn, 783 F.2d at 791 (internal citations omitted).

    127.

    See, , e.g., United States v. Morison, 844 F.2d 1063-70 (4th Cir. 1988), cert. denied, 488 U.S. 908 (1988); United States v. Rosen, 445 F. Supp. 2d 602, 627-29 (E.D. Va. 2006).

    134.
    128135.

    For example, the charges against the individuals allegedly responsible for the Pentagon Papers leak were dropped following evidence of government misconduct. See infra § "The Criminal Prosecution for the Pentagon Papers Leak." And the charges against Thomas Drake were reduced after it was discovered that much of the information disclosed had been previously made public. See infra § "Thomas Drake, NSA Disclosures to the Baltimore Sun."

    136.

    For an analysis of high-profile leak incidents that includes individuals who were not prosecuted, see Yochai Benkler, A Public Accountability Defense for National Security Leakers and Whistleblowers, 8 Harv. L. & Pol'y Rev. 281, 311-20 (2014).

    137.

    For background on and access to the Pentagon Papers as published by the National Archives, see Pentagon Papers, National Archives (Aug. 15, 2016), https://www.archives.gov/research/pentagon-papers.

    138.

    See generally Daniel Ellsberg, Secrets: A Memoir of Vietnam and the Pentagon Papers (2002).

    139.
    140.

    Ellsberg and Russo were charged with violating 18 U.S.C. §§371, 641, 793(c), (d), (e). See United States v. Russo, No. 9373-(WMB)-CD (filed Dec. 29, 1971), dismissed (C.D. Cal. May 11, 1973); Stephen I. Vladeck, Prosecuting Leaks under U.S. Law, in Whistleblowers, Leaks, and the Media: The First Amendment and National Security, 31 (Paul Rosenzweig et al., American Bar Association, 2014).

    141.

    For further background on the history of the case and the court's decision to declare a mistrial, see Melville B. Nimmer, National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case, 26 STAN. L. REV. 311 (1974); Martin Arnold, Pentagon Papers Charges are Dismissed; Judge Byrne Frees Ellsberg and Russo, Assails 'Improper Government Conduct', N.Y. Times, May 12, 1973, at A1, available at http://www.nytimes.com/learning/general/onthisday/big/0511.html#article.

    142.

    United States v. Morison, 844 F.2d 1057 (4th Cir. 1988), cert. denied, 488 U.S. 908 (1988).

    143.

    Morison, 844 F.2d at 1061-63.

    144.

    Id. at 1080.

    145.

    Id. at 1062. The government countered that his motive was to receive cash and employment from Jane's Defence Weekly. Id. at 1084-85 (Wilkinson, J., concurring). See also P. Weiss, The Quiet Coup: U.S. v. Morison - A Victory for Secret Government, Harper's, Sep. 1989.

    146.

    Morison, 844 F. 2d at 1073-74.

    147.

    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), http://www.hks.harvard.edu/presspol/publications/papers/working_papers/2003_01_nelson.pdf; Ben A. Franklin, Morison Receives 2-Year Jail Term, N.Y. Times, Dec. 5, 1985, at A1 (noting criticism of the prosecution as a threat to freedom of the press).

    148.

    Valerie Strauss, Navy Analyst Morison Receives a Pardon, Wash. Post, January 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 from Sen. Daniel Patrick Moynihan to President Clinton (Sep. 29, 1998), available at http://www.fas.org/sgp/news/2001/04/moynihan.html.

    149.

    For further detail on the AIPAC disclosure, see Lee, supra note 24, at 167-75.

    150.

    See id. at 167; Eric Lichtblau, Pentagon Analyst Admits He Shared Secret Information, N.Y. Times, Oct. 6, 2015, at A21.

    151.

    United States v. Rosen, 557 F.3d 192, 194 n.1 (4th Cir. 2009).

    It might be argued that certain offenses punishable under the Espionage Act do not fall under the traditional conception of "espionage" and should therefore not be deemed to be pure political offenses. See generally Pietro Verri, Dictionary of the International Law of Armed Conflict 47 (1992) (espionage is "commonly applied to the efforts made in territory under enemy control by a party to the conflict to collect all information on the enemy that may be useful to the conduct of the war in general and to that of hostilities in particular....The word espionage is also applied to the collection by States, in peacetime as well as in time of war, of political and military information regarding each other."); Lt. Col. Geoffrey B. Demarest, Espionage in International Law, 24 Denv. J. Int'l L. & Pol'y 321, 324 (1996) ("Throughout history, the terms 'espionage' and 'spying' have carried varying amounts of pejorative baggage. Therefore, any attempt at a precise definition is difficult."). Nonetheless, such an offense might still be deemed to be sufficiently related to political action or informed by political motivations so as to fall under the political offense exception.

    129.

    Under the doctrine of specialty, sometimes called specialty, "a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings." United States v. Alvarez-Machain, 504 U.S. 655, 661 (1992) (quoting United States v. Rauscher, 119 U.S. 407, 430 (1886)). This limitation is expressly included in many treaties.

    130.

    18 U.S.C. §641.

    131.

    E.g., Ecuadorian Extradition Treaty, art. 2, entered into force November 12, 1872, 18 Stat. 199, as modified by supplementary agreement, entered into force May 29, 1941, 55 Stat. 1196 (authorizing extradition for specific offenses).

    132.

    E.g., Extradition Agreement with the European Union, art. 4(1), entered into force February 1, 2010, S. Treaty Doc. 109-14 (applying in place of any provision in an earlier extradition agreement between the United States and an EU Member State which only authorized extradition for an exclusive list of offenses, and instead providing that "An offense shall be an extraditable offense if it is punishable under the laws of the requesting and requested States by deprivation of liberty for a maximum period of more than one year or by a more severe penalty"); Protocol to Australian Extradition Treaty, art. 1, entered into force December 21, 1992, S. Treaty Doc. 102-23 (replacing provision of earlier extradition agreement listing specific offenses where extradition was available with a provision requiring dual criminality).

    133.

    It should be noted, however, that extradition treaties may cover certain offenses that can constitute elements of the crime of espionage (e.g., knowingly receiving or fraudulently obtaining property). See, e.g., Extradition Treaty with Belize, appendix listing extraditable offenses, entered into force March 27, 2001, S. Treaty Doc. 106-38.

    134.

    See infra § "Criminal Prosecution of AIPAC Lobbyists in United States v. Rosen."

    153.
    135154.

    See Indictment of Shamai Leibowitz at 1, United States v. Leibowitz, No. AW09CR0632 (D. Md. Dec. 4, 2009), available at https://perma.cc/X559-4APF?type=pdf; Leonard Downie, Jr. & Sara Rafsky, The Obama Administration and the Press: Leak Investigations and Surveillance in post-9/11 America, Comm. to Protect Journalists (Oct. 10, 2013), https://perma.cc/D4YG-X6Q3?type=source. The district judge presiding over the case was reported to have stated: "All I know is that it's a serious case. I don't know what was divulged other than some documents, and how it compromised things, I have no idea." Shane, supra note 153.

    155.

    Scott Shane, Leak Offers Look at Efforts by U.S. to Spy on Israel, N.Y. Times (Sep. 5, 2011), http://www.nytimes.com/2011/09/06/us/06leak.html?_r=2&hp=&pagewanted=all&.

    156.

    See Steven Aftergood, Jail Sentence Imposed in Leak Case (May 25, 2010), Secrecy News, https://fas.org/blogs/secrecy/2010/05/jail_leak/.

    157.

    Id.; Vladeck, supra note 140, at 31.

    158.

    David Wise, Leaks and the Law: The Story of Thomas Drake, Smithsonian Magazine, Aug. 2011, available at http://www.smithsonianmag.com/history/leaks-and-the-law-the-story-of-thomas-drake-14796786/.

    159.

    Indictment of Thomas Drake, United States v. Drake, No. R0B18CR0181 (D. Md. Apr. 14, 2010), available at https://assets.documentcloud.org/documents/323707/drake-indictment.pdf.

    160.

    Id.

    161.

    Ex-Official for N.S.A. Accepts Deal in Leak Case, N.Y. Times (June 10, 2011), http://www.nytimes.com/2011/06/11/us/11justice.html; Downie & Rafsky, supra note 154.

    162.

    United States v. Drake, No. 10-00181 (D. Md.) (Government Motion to Dismiss the Indictment at the Time of Sentencing) (filed June 10, 2011), http://www.fas.org/sgp/jud/drake/061011-dismiss.pdf.

    163.

    See sources cited supra note 161.

    164.

    See Steven Aftergood, Handling of Drake Leak Case was "Unconscionable," Court Said, Secrecy News (July 29, 2011), http://www.fas.org/blog/secrecy/2011/07/drake_transcript.html.

    165.

    See United States v. Sterling, 724 F.3d 482, 488 (4th Cir. 2013), reh'g en banc denied, 732 F.3d 292, cert denied, 134 S. Ct. 2696 (2014) ; In re Grand Jury Subpoena to Risen, No. 1:10CR485, 2010 U.S. Dist. LEXIS 143340, *1-3 (E.D. Va. Nov. 30, 2010); Indictment of Jeffrey Sterling, United States v. Sterling, No. 1:10CR485 (LMB) (E.D. Va. Dec. 22, 2010), available at https://assets.documentcloud.org/documents/323711/sterling-indictment.pdf [hereinafter, "Sterling Indictment"].

    166.

    See James Risen, State of War: The Secret History of the CIA and the Bush Administration 193-218 (2006).

    167.

    See Mark Apuzzo, Ex-C.I.A. Officer Sentenced in Leak Case Tied to Times Reporter, N.Y. Times (May 11, 2015), https://www.nytimes.com/2015/05/12/us/ex-cia-officer-sentenced-in-leak-case-tied-to-times-reporter.html; Steven Nelson, Jeffrey Sterling Sentenced to 42 Months for Talking to Reporter, U.S. News & World Report (May 11, 2015), https://www.usnews.com/news/articles/2015/05/11/jeffrey-sterling-sentenced-to-42-months-for-talking-to-reporter.

    168.

    See sources cited supra note 167.

    169.

    See United States v. Jin-Woo Kim, 808 F. Supp. 2d 44, 47 (D.D.C. 2011); Ann E. Marimow, Ex-State Department Adviser Stephen J. Kim Sentenced to 13 Months in Leak Case, Wash. Post (Apr. 2, 2014), https://perma.cc/2QBB-36K9?type=source.

    170.

    Jin-Woo Kim, 808 F. Supp. 2d at 47.

    171.

    United States v. Kim, 808 F. Supp. 2d 44 (D.D.C. 2011).

    172.
    136.

    IV Michael Abbell & Bruno A. Ristau, International Judicial Assistance: Criminal 64-7 (1990). See, e.g., Ecuadorian Extradition Treaty, art. 1, entered into force November 12, 1872, 18 Stat. 199 (applying to offenses "committed within the jurisdiction of one of the contracting parties").

    137.

    For examples of specific treaties, see CRS Report 98-958, Extradition To and From the United States: Overview of the Law and Recent Treaties.

    138.

    Bassiouni, supra note 125, at 739.

    139.

    Extradition Agreement with the European Union, art. 10, entered into force February 1, 2010, S. Treaty Doc. 109-14 (describing factors to be considered by requested state when considering competing extradition requests from the United States or other EU Member States); Bolivian Extradition Treaty, art. X, entered into force November 21, 1996, S. Treaty Doc. 104-22.

    140.

    See, e.g., Swedish Extradition Treaty, art. IX, entered into force December 3, 1963, 14 U.S.T. 1845 ("A person extradited by virtue of this Convention may not be tried or punished by the requesting State for any offense committed prior to his extradition, other than that which gave rise to the request, nor may he be re-extradited by the requesting State to a third country which claims him, unless the surrendering State so agrees or unless the person extradited, having been set at liberty within the requesting State, remains voluntarily in the requesting State for more than 45 days from the date on which he was released. Upon such release, he shall be informed of the consequences to which his stay in the territory of the requesting State might subject him."); Turkish Extradition Treaty, art. 17, entered into force January 1, 1987, 32 UST 2111 (similar); Council of Europe, Convention on Extradition, art. 15, done December 13, 1957 (providing similar requirements for re-extradition among member States of the Council of Europe), available at http://conventions.coe.int/Treaty/EN/Treaties/Html/024.htm https://fas.org/sgp/jud/kim/plea.pdf.

    141173.

    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 [author name scrubbed].

    142.

    Sable Commc'ns of Cal. v. Fed. Commc'ns Comm'n, 492 U.S. 115, 126 (1989).

    143Marimox, supra note 169.
    174.

    See Tim Bakken, The Prosecution of Newspapers, Reporters, and Sources for Disclosing Classified Information: The Government's Softening of the First Amendment, 45 U. Tol. L. Rev. 1, 18 (2013).

    175.

    10 U.S.C. §904.

    176.

    10 U.S.C. §934. See also See Ed Pilkington, Bradley Manning May Face Death Penalty, Guardian (March 3, 2011), http://www.guardian.co.uk/world/2011/mar/03/bradley-manning-may-face-death-penalty (reporting that 22 new charges, including aiding the enemy, were added to the original 12 specifications).

    177.

    See Bakken, supra note 174; Katherine Feuer, Article: Protecting Government Secrets: A Comparison of the Espionage Act and the Official Secrets Act, 38 B.C. Int'l & Comp. L. Rev. 91, 104 (2015); Ed Pilkington, Bradley Manning Pleads Guilty to 10 Charges But Denies 'Aiding the Enemy,' Guardian (Feb. 28, 2013), https://www.theguardian.com/world/2013/feb/28/bradley-manning-pleads-aiding-enemy-trial.

    178.

    Charlie Savage and Emmarie Huetteman, Manning Sentenced to 35 Years for a Pivotal Leak of U.S. Files, N.Y. Times, August 21, 2013, at A1.

    179.

    The White House, Office of the Press Secretary, President Obama Grants Commutations and Pardons, Obama White House Archives (Jan. 17, 2017), https://obamawhitehouse.archives.gov/the-press-office/2017/01/17/president-obama-grants-commutations-and-pardons.

    180.

    The Department of Justice cited an ongoing investigation into the disclosures as a reason to deny a request for information under the Freedom of Information Act (FOIA). See Government Motion for Summary Judgment, Manning v. U.S. Dep't of Justice, No. 1:15-cv-01654 (D.D.C. March 15, 2016).

    181.

    Based on a letter accompanying a grand jury subpoena, there was some speculation that federal prosecutors are pursuing a conspiracy theory under the Espionage Act of 1917, as well as laws prohibiting misuse of government computers and misappropriation of government property. See Ellen Nakashima and Jerry Markon, Documents Offer Hints of U.S. Legal Strategy in WikiLeaks Investigation, Wash. Post, April 29, 2011, at A3. It was reported that a conspiracy theory could permit prosecutors to pursue charges on the basis of activities not subject to First Amendment protection. See Scott Shane, Supporter of Leak Suspect Is Called Before Grand Jury, N.Y. Times, June 16, 2011, at 22 (quoting attorney Abbe D. Lowell).

    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 (1964); accord Cole v. Young, 351 U.S. 536, 546 (1956)).

    144.

    See Schenck v. United States, 249 U.S. 47 (1919) (formulating "clear and present danger" test).

    145.

    Brandenburg v. Ohio, 395 U.S. 444 (1969).

    146.

    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.").

    147.

    "National Security" is defined as national defense and foreign relations. See Exec. Order No. 13526, 75 Federal Register 707 §6.1(cc) (January 5, 2010).

    148.

    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); see generally 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)).

    149.

    Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (citing Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)).

    150.

    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 likely an implausible argument to posit that the First Amendment 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."). The Supreme Court invalidated, on First Amendment grounds, a statute that required postal authorities to detain unsealed mail from abroad deemed to contain "communist political propaganda" unless the recipient affirms a desire to receive it. Lamont v. Postmaster General, 381 U.S. 301 (1965).

    Likewise, the fact that WikiLeaks 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).

    151.

    Exec. Order No. 13526, 75 Fed. Reg. 707 §1.2 (January 5, 2010) ("Classified National Security Information").

    Section 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.

    152.

    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).

    153e.g., Josh Gerstein, Report: WikiLeaks' Founder Julian Assange Indicted in U.S., Politico (Feb. 28, 2012), http://www.politico.com/blogs/under-the-radar/2012/02/report-wikileaks-founder-julian-assange-indicted-in-us-115779; Philip Dorling, Charges Against Assange Drawn Up in US, Says Email, Sydney Morning Herald (Feb. 29, 2012).
    183.

    Sari Horwitz, Assange Not Under Sealed Indictment, U.S. Officials Say, Wash. Post (Nov. 18, 2013), https://www.washingtonpost.com/world/national-security/assange-not-under-sealed-indictment-us-officials-say/2013/11/18/8a3cb2da-506c-11e3-a7f0-b790929232e1_story.html?utm_term=.dd07d17e561e.

    184.

    See Indictment of John Kiriakou, United States v. Kiriakou, No. 1:12cr127 (LMB) (E.D. Va. Apr. 5, 2012). See also Vladeck, supra note 140, at 33.

    185.

    50 U.S.C. §3121.

    186.

    See Dep't of Justice, Office of Public Affairs, Former CIA Officer John Kiriakou Indicted for Former CIA Officer John Kiriakou Indicted for Allegedly Disclosing Classified Information, Including Covert Officer's Identity, to Journalists and Lying to CIA's Publications Board, (Apr. 5, 2012), https://www.justice.gov/opa/pr/former-cia-officer-john-kiriakou-indicted-allegedly-disclosing-classified-information.

    187.

    See CIA 'Whistleblower' John Kiriakous Jailed for Two Years for Identity Leak, Guardian (Oct. 23, 2012), https://www.theguardian.com/world/2012/oct/23/cia-whistleblower-john-kiriakou-leak.

    188.

    Dep't of Justice, U.S. Attorney's Office, Former CIA Officer Sentenced to 30 Months for Revealing Identity of 20-Plus-Year Covert CIA Officer (Jan. 25, 2013), https://www.justice.gov/usao-edva/pr/former-cia-officer-sentenced-30-months-revealing-identity-20-plus-year-covert-cia.

    189.

    Justin Jouvenal, Former CIA Officer John Kiriakou is Sentenced to 30 Months in Prison for Leaks, Wash. Post. (Jan. 25, 2013), https://www.washingtonpost.com/local/former-cia-officer-john-kiriakou-sentenced-to-30-months-in-prison-for-leaks/2013/01/25/49ea0cc0-6704-11e2-9e1b-07db1d2ccd5b_story.html?utm_term=.63797e7c6995.

    190.

    Dep't of Justice, U.S. Attorney's Office, supra note 188; Charlie Savage, Former CIA Operative Pleads Guilty in Leak of Colleague's Name, N.Y. Times, Oct. 24, 2012, at A16.

    191.

    18 U.S.C. §2071(a) states:

    Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

    192.

    See Indictment, United States v. Hitselberger, No. 12-231 (D.D.C. filed Feb. 28, 2013); Vladeck, supra note 140, at 29 n.1. See also Josh Gerstein, Linguist Charged with Pilfering Records seeks Release, Politico (Dec. 4, 2012), http://www.politico.com/blogs/under-the-radar/2012/12/linguist-charged-with-pilfering-records-seeks-release-151097.

    193.

    Steven Aftergood, Espionage Act Case was "Overcharged" Defense Says, Secrecy News (June 30, 2014), https://fas.org/blogs/secrecy/2014/06/esp-act-overcharged/.

    194.

    For a summary of this statute, see § "Other Relevant Statutes."

    195.

    See Judgment, United States v. Hitselberger, No. 12-231 (D.D.C. filed July 18, 2014); Superseding Information, United States v. Hitselberger, No. 12-231 (D.D.C. filed Apr. 25, 2014); Josh Gerstein, Ex-Navy Linguist Pleads Guilty in Secret documents Case, Politico (Apr. 25, 2014), http://www.politico.com/blogs/under-the-radar/2014/04/ex-navy-lingust-pleads-guilty-in-secret-documents-case-187436.

    196.

    See Judgment, United States v. Hitselberger, No. 12-231 (D.D.C. filed July 18, 2014).

    197.

    Statement of Offense, United States v. Sachtleben, No. 1:13-cr-0200 WTL-TAB (S.D. In. filed Sep. 23, 2014).

    198.

    See, e.g., Josh Gerstein, Ex-FBI Agent Admits to AP Leak, Politico (Sep. 23, 2013), http://www.politico.com/story/2013/09/ex-fbi-agent-pleads-guilty-associated-press-leak-case-097226; Tim Evans, Ex-FBI Bob Tech's High-Profile Career Ends in Scandal, USA Today (Sep. 25, 2013), http://www.usatoday.com/story/news/nation/2013/09/25/fbi-bomb-tech-career-ends-in-scandal/2868499/.

    199.

    See Charlie Savage and Leslie Kaufman, Phone Records of Journalists Seized by U.S., N.Y. Times, May 14, 2013, at A1; Sari Horwitz, Justice Dept. Seized Phone Records of AP Journalists, Wash. Post, May 14, 2013, at A1.

    200.

    See Dep't of Justice, U.S. Attorney's Office, Former Federal Contractor Sentenced For Disclosing National Defense Information And Distributing Child Pornography (Nov. 14, 2013), https://www.justice.gov/usao-sdin/pr/former-federal-contractor-sentenced-disclosing-national-defense-information-and. Sachtleben simultaneously entered into a plea agreement and pled guilty to child pornography-related offenses uncovered in an unrelated investigation. Id.

    201.

    For background on changes to the NSA's telephony metadata program in the wake of the Snowden disclosures, see CRS Legal Sidebar WSLG794, President Obama Announces Changes to NSA Telephony Metadata Program, by [author name scrubbed].

    202.

    Mark Mazzetti and Michael S. Schmidt, Ex-Worker at C.I.A. Says He Disclosed U.S. Surveillance, N.Y. Times, June 10, 2013, at A1.

    203. 204.
    205.

    See Dep't of Justice, Office of Public Affairs, Justice Department Statement on the Request to Hong Kong for Edward Snowden's Provision Arrest (June 26, 2013), https://www.justice.gov/opa/pr/justice-department-statement-request-hong-kong-edward-snowden-s-provisional-arrest.

    206.

    See Tom McCarthy, Putin Confirms Snowden in Moscow Airport but Denies Extradition – As It Happened, Guardian (June 25, 2013), https://www.theguardian.com/world/2013/jun/25/edward-snowden-russia; Brian Ross et al., Vladimir Putin Defies U.S. on Edward Snowden Extradition, ABC News (June 25, 2013), http://abcnews.go.com/Blotter/edward-snowden-show-2nd-cuba-flight-russia-fires/story?id=19480761. For background on obstacles in the effort to extradite Snowden, see CRS Legal Sidebar WSLG561, U.S. May Face Significant Obstacles in Attempt to Apprehend Edward Snowden, by [author name scrubbed].

    207.

    Bill of Information, United States v. Petraeus, No. 3:15 CR 47, (W.D.N.C. Mar. 3, 2015), available at http://www.ncwd.uscourts.gov/sites/default/files/general/Petraeus.pdf.

    208.

    See Jonathan Allen, Josh Gerstein, & Jennifer Epstein, Citing Affair, Petraeus Resigns at CIA, Politico (Nov. 11, 2012), http://www.politico.com/story/2012/11/citing-affair-petraeus-resigns-at-cia-08364; Michael S. Schmidt and Matt Apuzzo, F.B.I. and Justice Dept. Said to Seek Charges for Petraeus, N.Y. Times, Jan. 10, 2015, at A1.

    See, e.g., United States v. Abu-Jihaad, 600 F.Supp.2d 362, 385-86 (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).

    154.

    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.").

    155e.g., sources cited supra note 208; Petraeus Sentenced to 2 Years Probation for Military Leak, FoxNews (Apr. 23, 2015), http://www.foxnews.com/politics/2015/04/23/petraeus-sentenced-to-2-years-probation-for-military-leak.html; Adam Goldman, Petraeus Pleads Guilty to Mishandling Classified Material, Will Face Probation, Wash. Post. (Apr. 23, 2015), https://www.washingtonpost.com/world/national-security/petraeus-set-to-plead-guilty-to-mishandling-classified-materials/2015/04/22/3e6dbf20-e8f5-11e4-aae1-d642717d8afa_story.html?utm_term=.f1f319d378f7. 210.

    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).

    156Petraeus, No. 3:15 CR 47, (W.D.N.C. Mar. 3, 2015), available at http://www.ncwd.uscourts.gov/sites/default/files/general/Petraeus.pdf.
    211.

    See Ken Otterbourg and Andrew Grossman, Gen. David Petraeus Avoids Jail Time, to Pay $100,000 Fine, Wall St. J. (Apr. 23, 2015), https://www.wsj.com/articles/david-petraeus-sentenced-to-two-years-probation-1429816999.

    212.

    See supra § "Prosecution of Leaks and Disclosures to the Press."

    213.

    Papandrea, supra note 52, at 1389. See also Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks: Hearing Before the H. Comm. On the Judiciary, 111th Cong. 39-40, 43 (2010) [hereinafter, "House Judiciary WikiLeaks Hearing"] (statement of Kenneth L. Wainstein, former Assistant Attorney General, Partner, O'Melveny & Myers, LLP).

    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).

    157.

    See United States v. Dedeyan, 594 F.2d 36, 39 (4th Cir. 1978).

    158.

    Gorin v. United States, 312 U.S. 19 (1941).

    159.

    Id. at 28.

    160.

    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.

    161.

    Id. at 31.

    162.

    United States v. Morison, 844 F.2d 1057 (4th Cir. 1988), cert. denied, 488 U.S. 908 (1988).

    163.

    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 note 117.

    164.

    Morison, 844 F.2d at 1061-63.

    165e.g. 18 U.S.C. §793(a) (criminal prohibition on one who, with the required mens rea, "obtains" national defense information); id. §793(c) (criminal prohibition on an individual who "receives or obtains or agrees or attempts to receive or obtain" certain national defense material); id. §793(f) (criminal prohibition on the "fail[ure] to make prompt report" of the loss, theft, abstraction, or destruction" of national defense information").
    215.

    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).

    216.

    See, e.g., House Judiciary WikiLeaks Hearing, supra note 213, at 67 (statement of Stephen Vladeck) ("[T]he text of the [Espionage] Act makes no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain national defense information that ... is already in the public domain."); id. Vladeck, supra note 20, at 231-32.

    217.

    See infra § "Criminal Prosecution of AIPAC Lobbyists in United States v. Rosen."

    218.

    See, e.g., Vladeck, supra note 20, at 231-32; Lee, supra note 24, at 130-36; Dana Milbank, In AP, Rosen Investigations, Government Makes Criminals of Reporters, Wash. Post (May 21, 2013), http://articles.washingtonpost.com/2013-05-21/opinions/39419370_1_obama-administration-watergate-benghazi.

    219.

    See supra § "Lawrence Franklin and the AIPAC Disclosure."

    220.

    United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006) (Rosen and Weissman were charged with conspiracy under 18 U.S.C. §793(g) to violate 18 U.S.C. §793 (d) & (e); Rosen was additionally charged with another violation of 18 U.S.C. §793(d)); see Jerry Markon, U.S. Drops Case Against Ex-Lobbyists, 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). During World War II government officials considered prosecuting the Chicago Tribune for publishing a story which suggested that the United States won the Battle of Midway because it was able to read Japanese codes. See Mary-Rose, Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83 Ind. L.J. 233, 258 (2008). When Japan did not change its coded communications, the Department of War asked the Department of Justice to drop the matter so as not to draw attention to the United States' intelligence capabilities. See id.; Geoffrey R. Stone, Freedom of the Press in Time of War, 59 SMU L. Rev. 1663, 1668 (2006); House Judiciary WikiLeaks Hearing, supra note 213, at 61 (statement of Gabriel Schoenfeld).

    221.

    Rosen, 445 F. Supp. 2d at 608; 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").

    222.

    Id. at 1080.

    166223.

    Id. at 1067-68. 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).

    167.

    Morison, 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. Id. at 1062. The government, however, argued that his motive was to receive cash and employment from Jane's Defence Weekly. Id. at 1084-85 (Wilkinson, J., concurring). See P. Weiss, The Quiet Coup: U.S. v. Morison - A Victory for Secret Government, Harper's, September 1989.

    168.

    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), http://www.hks.harvard.edu/presspol/publications/papers/working_papers/2003_01_nelson.pdf; Ben A. Franklin, Morison Receives 2-Year Jail Term, N.Y. Times, Dec. 5, 1985, at A1 (noting criticism of the prosecution as a threat to freedom of the press).

    169.

    Valerie Strauss, Navy Analyst Morison Receives a Pardon, Wash. Post, January 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, http://www.fas.org/sgp/news/2001/04/moynihan.html.

    170See Lee, supra note 24, at 132-34. The solicitation theory relied on a finding in a 2008 Supreme Court case, United States v. Williams, 553 U.S. 285 (2008), that solicitation of an illegal transaction is not speech deserving of First Amendment protection. 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 addressed 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, 553 U.S. at 304.
    224.

    See Markon, supra note 114 (quoting Dana J. Boente, the then-Acting U.S. Attorney for the Eastern District of Virginia, 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." Rosen, 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)).

    225.

    Rosen, 445 F. Supp. 2d at 625.

    226.

    See United States v. Drake, 818 F. Supp. 2d 909, 916 (D. Md. 2011) (distinguishing intent requirements between disclosures involving tangible documents and those involving intangible information); United States v. Kiriakou, 898 F. Supp. 2d 921, 924-27 (E.D. Va. 2012) (surveying case law and noting that a Fourth Circuit interlocutory appeal in the Rosen case cast doubt on the district judge's interpretation).

    227.

    N. Y. Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

    228.

    See id.

    229.

    The Department of Justice filed its first complaint against the New York Times on June 14, 1971, Jake Kobrick, The Pentagon Papers in the Federal Courts 2 (2014), and the Supreme Court issued its written opinion just over two weeks later on June 30, 1971. See N.Y. Times, 403 U.S. at 713.

    230.

    N. Y. Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

    171231.

    Id. at 714.

    172.

    Id.See Papandrea, supra note 52, at 1420-23 (discussing the impact and potential applicability of the Pentagon Papers case in criminal prosecutions for disclosure of protected information); House Judiciary WikiLeaks Hearing, supra note 213, at 20 (statement of Geffrey R. Stone) ("The standard applied in the Pentagon Papers case is essentially the same standard the Court would apply in a criminal prosecution of an organization or individual for publicly disseminating information about the conduct of government.") (emphasis in original).

    232.
    173233.

    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 information 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.

    174234.

    See, e.g., Landmark Commc'nsn v. Virginia, 435 U.S. 829, 837 (1978).

    175235.

    Fla. Star v. B.J.F. 491 U.S. 524, 535 n.8 (1989) (emphasis in original). The Court also questioned whether the receipt of information can ever constitutionally be proscribed. Id. at 536.

    176236.

    Daily Mail, 443 U.S at 103. Here, routine newsgathering consisted of perusing publicly available court records.

    177237.

    Bartnicki v. Vopper, 532 U.S. 514 (2001).

    178238.

    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).

    179.

    Bartnicki, 484 F.3d at 517-18.

    180.

    See 18 U.S.C. §793(c) (appearing to not cover receipt of intangible information); but see §793(d) & (e) (appearing to cover the receipt of intangible information).

    181.

    See, e.g., The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks, Hearing before the H. Comm. on the Judiciary, 111th Cong. (2010).

    182.

    See id.

    183.

    H.R. 4392, 106th Cong. §304 (enrolled bill); H.R. 2943, 107th Cong;239.

    See supra § "Jeffrey Sterling, CIA Disclosures to New York Times Reporter James Risen."

    240.

    See United States v. Sterling, 818 F. Supp. 2d 945 (E.D. Va. 2011) [hereinafter, "Sterling I"], rev'd, 724 F.3d 482 (4th Cir. 2013) [hereinafter, "Sterling II"], reh'g en banc denied, 732 F.3d 292, (4th Cir. 2013), cert. denied, 134 S. Ct. 2696 (2014).

    241.

    For an overview of the law regarding the reporter's privilege, see CRS Report RL34193, Journalists' Privilege: Overview of the Law and Legislation in the 113th Congress, by [author name scrubbed].

    242.

    Sterling I, 818 F. Supp. 2d at 951.

    243.

    Id. at 960.

    244.

    Sterling II, 724 F.3d at 504-05. For additional background and analysis of the Fourth Circuit's decision, see CRS Legal Sidebar WSLG630, Confusing Branzburg: Is There a Journalists' Privilege Under the First Amendment?, by [author name scrubbed].

    245.

    See Brief of Defendant-Appellant Jeffrey Alexander Sterling to the U.S. Court of Appeals for the Fourth Circuit, United States v. Sterling, No. 15-4297, filed Feb. 22, 2016, at 13, available at http://www.fas.org/sgp/jud/sterling.

    246.

    See supra § "Donald Sachtleben, Disclosure of Foiled Bomb Plot to the Associated Press."

    247.

    See Charlie Savage, Former F.B.I. Agent to Plead Guilty in Press Leak, N.Y. Times, Sep. 23, 2013, at A1. For further background and analysis of the AP subpoenas, see CRS Legal Sidebar WSLG517, Reporter's Privilege and Department of Justice Access to Reporters' Phone Records, by [author name scrubbed].

    248.

    See, e.g., Milbank, supra note 218; Ravi Somaiua, Head of the A.P. Criticizes Seizure of Phone Records, N.Y. Times, May 20, 2013, at B8. See also Amitai Etzioni, A Liberal Communitarian Approach to Security Limitations on the Freedom of the Press, 22 Wm. & Mary Bill Rts. J. 1141, 1143-44 (2014) (summarizing media reactions). But see, e.g., Daniel J. Gallington, Editorial, There Is No Scandal in Tracking Down Leaks, U.S. News & World Rep. (May 20, 2013), http://www.usnews.com/opinion/blogs/world-report/2013/05/20/obama-is-right-to-target-ap-national-security-leaks.

    249.
    250.

    Rosen Warrant Affidavit, supra note 249, at ¶ 39(c).

    251.

    Id. ¶¶ 40. 248

    252.

    See, e.g., Michael Calderone & Ryan J. Reilly, DOJ Targeting of Fox News Reporter James Rosen Risks Criminalizing Journalism, Huffington Post (May 20, 2013), http://www.huffingtonpost.com/2013/05/20/doj-fox-news-james-rosen_n_3307422.html; Milbank, supra note 218; Editorial, Justice Department Run Amok on Journalists, S.F. Chron. (May 22, 2013), http://www.sfchronicle.com/opinion/editorials/article/Justice-Department-run-amok-on-journalists-4540632.php.

    253.

    See Savage, supra note 249.

    254.

    Dep't of Justice, Report on News Media Policies 2 (July 12, 2013), available at http://www.justice.gov/iso/opa/resources/2202013712162851796893.pdf.

    255.

    See sources cited supra note 25.

    256.

    See, e.g., House Judiciary WikiLeaks Hearing, supra note 213.

    257.

    See id.

    258.
    184259.

    18 U.S.C. §1924 prohibits removal of government-owned or controlled classified information by a government employee without authorization. 50 U.S.C. §783 covers only information classified by the President or an executive agency transmitted by a government employee to a foreign government. 18 U.S.C. §§793 and 794 are potentially broader than these in that they cover information "related to the national defense," by government employees and others without regard to the identity of the recipient of the information, but these require intent or knowledge regarding harm to the national defense.

    185260.

    "Classified information" was defined in the proposed measure to mean "information or material designated and clearly marked or represented, or that the person knows or has reason to believe has been determined by appropriate authorities, pursuant to the provisions of a statute or Executive Order, as requiring protection against unauthorized disclosure for reasons of national security."

    186261.

    See H.Rept. 106-969 at 44 (2000).

    187262.

    H.R. 4392 §304, 106th Congress.

    188263.

    Message on Returning Without Approval to the House of Representatives the "Intelligence Authorization Act for Fiscal Year 2001",," 36 Weekly Comp. Pres. Doc. 278 (November 4, 2000).

    189264.

    Id.

    190265.

    The Classified Information Protection Act of 2001, H.R. 2943, 107th Cong.

    191266.

    Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, §310 (2001).

    192267.

    S. 3774, 109th Cong.

    193268.

    Report to Congress on Unauthorized Disclosure of Classified Information, October 15, 2002 (citations omitted).

    194269.

    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. 1972), 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 prepublication clearance, Snepp v. United States, 444 U.S. 507 (1980).

    270.