Criminal Prohibitions on the Publication of
Classified Defense Information
Jennifer K. Elsea
Legislative Attorney
June 26, 2012
Congressional Research Service
7-5700
www.crs.gov
R41404
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Criminal Prohibitions on the Publication of Classified Defense Information
Summary
Recent press reports describing classified U.S. operations abroad have led to calls from Congress
for an investigation into the source of the leaks, and Attorney General Holder has appointed two
special prosecutors to look into the matter. The online publication of classified defense documents
and diplomatic cables 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 suspected source of the WikiLeaks material, Army Private Bradley
Manning, has been charged with a number of offenses under the Uniform Code of Military
Justice (UCMJ), including aiding the enemy, while a grand jury in Virginia is deciding whether to
indict any civilians in connection with the disclosure. A number of other cases involving charges
under the Espionage Act demonstrate the Obama Administration’s relatively hard-line 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. Leaks of classified information to the press have only rarely
been punished as crimes, and we are aware of no case in which a publisher of information
obtained through unauthorized disclosure by a government employee has been prosecuted for
publishing it. There may be First Amendment implications that would make such a prosecution
difficult, not to mention political ramifications based on concerns about government censorship.
To the extent that the investigation implicates any foreign nationals whose conduct occurred
entirely overseas, any resulting prosecution may carry foreign policy implications related to the
exercise of extraterritorial jurisdiction 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, 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 recent legislation relevant to the issue (H.R. 703, S. 315, S.
355, H.R. 1823, H.R. 4310, S.Res. 489) as well as some previous efforts to criminalize the
unauthorized disclosure of classified information.
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Criminal Prohibitions on the Publication of Classified Defense Information
Contents
Background...................................................................................................................................... 2
The WikiLeaks Releases............................................................................................................ 2
Other Leaks Prosecutions .......................................................................................................... 5
Statutory Protection of Classified Information ................................................................................ 7
The Espionage Act..................................................................................................................... 7
Other Statutes .......................................................................................................................... 12
Analysis ................................................................................................................................... 14
Jurisdictional Reach of Relevant Statutes...................................................................................... 15
Extradition Issues........................................................................................................................... 17
Constitutional Issues...................................................................................................................... 20
Prior Legislative Efforts................................................................................................................. 26
The Classified Information Protection Act of 2001................................................................. 26
Current Proposals .................................................................................................................... 28
Conclusion ..................................................................................................................................... 30
Contacts
Author Contact Information........................................................................................................... 31
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Criminal Prohibitions on the Publication of Classified Defense Information
he online publication of classified defense documents and diplomatic cables by the
organization WikiLeaks and subsequent reporting by the New York Times, The Guardian
T (UK), and Der Spiegel (Germany), among others, focused attention on whether such
publication violates U.S. criminal law. The suspected source of the material, Army Private
Bradley Manning, has been charged with a number of offenses under the Uniform Code of
Military Justice (UCMJ). A grand jury has been empanelled in Alexandria, VA, to investigate
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 recent newspaper stories reporting on U.S. covert or clandestine operations
overseas has led to calls for the appointment of a special prosecutor to investigate executive
branch leaks.3 Attorney General Eric Holder has 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 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
1 Scott Shane, Supporter of Leak Suspect Is Called Before Grand Jury, NY TIMES, June 16, 2011, at 22. After the
Attorney General indicated last December that he had authorized investigators to take “significant” steps with respect
to the WikiLeaks case (but declined to elaborate), an attorney for Julian Assange told news reporters that he had
learned from Swedish authorities that a grand jury had been empanelled in Alexandria, VA, to investigate the matter.
See Charlie Savage, Building Case For Conspiracy By WikiLeaks, NY TIMES, December 16, 2010, at 1. The attorney
reportedly told Al-Jazeera in an interview that Julian Assange is at least one target of the investigation. See Assange
attorney: Secret grand jury meeting in Virginia on WikiLeaks, CNN.COM, December 13, 2010, http://articles.cnn.com/
2010-12-13/justice/wikileaks.investigation_1_julian-assange-wikileaks-case-grand-jury?_s=PM:CRIME. However,
another of Assange’s attorneys refuted the claim, stating Assange’s legal team has no concrete evidence that a grand
jury is considering charges against Assange. Justin Elliot, Assange grand jury report “purely speculation”, WAR ROOM
(December 14, 2010), http://www.salon.com/news/politics/war_room/2010/12/14/assange_grand_jury_rumors/
index.html. Separate from the grand jury investigation, the U.S. Attorney for the Eastern District of Virginia reportedly
subpoenaed records of several persons from the social media network Twitter. See Scott Shane and John F. Burns,
Twitter Records in Wikileaks Case are Subpoenaed, NY TIMES, January 9, 2011, at 1.
2 Based on a letter accompanying a grand jury subpoena, there is 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
Shane, supra footnote 1 (quoting attorney Abbe D. Lowell).
The subpoena has been posted at http://www.salon.com/news/opinion/glenn_greenwald/2011/06/09/wikileaks/
subpoena.pdf. The letter accompanying the subpoena can be viewed at http://www.salon.com/news/opinion/
glenn_greenwald/2011/06/09/wikileaks/Ltr.House.pdf. It appears to be a form letter that advises recipients that the
grand jury is investigating “possible violations of federal criminal law, but not necessarily limited to conspiracy to”
commit violations of 18 U.S.C. §793(g) (espionage), 18 U.S.C. §371 (general conspiracy statute; fraud against the
government), 18 U.S.C. §1030 (computer fraud), and 18 U.S.C. §641 (conversion of public property).
3 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), available at
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, NY Times, June 1, 2012, at A1,
available at 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,
(continued...)
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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
discuss classified information with journalists, but the scope of the investigations remains unclear.
At this stage in all of these investigations, there is little public information available. 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 whistle-blowers,
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, obtained 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 have
charged an Army private, Bradley 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
(...continued)
none of whom were willing to allow names to be printed because of the classified nature of the program.
6 See Scott Shane and Eric Schmitt, Qaeda Foiled in Plot to Plant Redesigned Bomb on Plane, U.S. Officials Say, NY
Times, May 8, 2012, at A12.
7 See, e.g., Jo Becker and Scott Shane, Secret ‘Kill List’ Proves a Test Of Obama’s Principles and Will, NY TIMES,
May 29, 2012, at A1.
8 http://www.wikileaks.org/wiki/WikiLeaks:About.
9 Id.
10 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, available at
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).
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suspicion of having provided WikiLeaks with video footage of an airstrike that resulted in the
deaths of civilians.12 The most serious charge, aiding the enemy in violation of UCMJ Article
104,13 is a capital offense, but prosecutors have reportedly said they do not intend to seek the
death penalty.14 It 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 2,15
which raises 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.
U.S. officials have condemned the leaks, predicting that the information disclosed could lead to
the loss of lives of U.S. soldiers in Afghanistan and Afghan citizens who have provided them
assistance.16 Defense Secretary Robert M. Gates informed members of Congress that a
preliminary review of the disclosed information by the Defense Department found that no
sensitive information related to intelligence sources or methods was made public, but reiterated
that the release of Afghan informants’ names could have “potentially dramatic and grievously
harmful consequences.”17 WikiLeaks subsequently released some 400,000 documents related to
the war in Iraq,18 this time with names of informants apparently redacted.19
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
2008-2010.20 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 2010,21 but some of them apparently go back several
decades.22
12 Military airstrike video leak suspect in solitary confinement, CNN.com, August 1, 2010, available at
http://www.cnn.com/2010/POLITICS/07/31/wikileaks.manning/index.html.
13 10 U.S.C. §904.
14 See Jim Miklaszewski and Courtney Kube, Manning faces new charges, possible death penalty, MSNBC.com, May
3, 2011, available at http://www.msnbc.msn.com/id/41876046/ns/us_news-security/.
15 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.”
16 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/.
17 See Elisabeth Bumiller, Gates Found Cost of Leaks Was Limited, NY TIMES, October 17, 2010 (quoting letter to
Senator Levin from Secretary Gates).
18 See The Iraq Archive: The Strands of a War, NY TIMES, at http://www.nytimes.com/2010/10/23/world/middleeast/
23intro.html?_r=1.
19 See Anna Mulrine, Wikileaks Iraq Documents not as Damaging as Pentagon Feared—Yet, 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 footnote 18.
20 State’s Secrets, NY TIMES (online edition), 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.
21 Scott Shane and Andrew W. Lehren, Cables Obtained by WikiLeaks Shine Light Into Secret Diplomatic Channels,
NY TIMES.
22 The Guardian states that the earliest of the cables is from 1966. See The US embassy cables, supra footnote 20.
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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 UK, 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.23
The State Department 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.24 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.25
After learning the classified cables were to be published, the Defense Department notified the
U.S. Senate and House Armed Services Committees in general terms about what to expect.26
Assistant Secretary for Legislative Affairs Elizabeth King 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 she described as intended to “wreak havoc and destabilize global
security,” could potentially jeopardize lives.27 State Department spokesman Philip J. Crowley 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.”28 The
White House issued a statement condemning the activities of WikiLeaks29 and ordered all
agencies to conduct reviews of their information security policies and programs.30
23 Letter to Ambassador Susman, November 26, 2010, available at http://documents.nytimes.com/letters-between-
wikileaks-and-gov.
24 Letter from State Department Legal Adviser Harold Hongju Koh to Jennifer Robinson, November 27, 2010,
available at http://documents.nytimes.com/letters-between-wikileaks-and-gov.
25 Letter to Ambassador Susman, November 28, 2010, available at http://documents.nytimes.com/letters-between-
wikileaks-and-gov.
26 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.
27Id.
28 Id.
29 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
(continued...)
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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.31 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 relocated a few of them for their safety.32 The
cables continued to be released at an apparently steady rate,33 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.34 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.35
Other Leaks Prosecutions
The Obama Administration is taking a relatively hard-line stance with respect to those suspected
of leaking classified information to the press, with six prosecutions currently under way or
completed (including Bradley Manning).36 A former National Security Agency (NSA) official,
Thomas A. Drake, recently 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.37 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.38 The prosecution eventually dropped most of the charges
(...continued)
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.
30 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: U.S. Government
Mitigation Efforts in Light of the Recent Unlawful Disclosure of Classified Information (December 1, 2010), at
http://www.whitehouse.gov/search/site/classified%20information.
31 See Mark Landler and Scott Shane, U.S. Sends Warning to People Named in Cable Leaks, N.Y. TIMES, January6,
2011.
32 Id.
33 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 footnote 20.
34 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/.
35 See Scott Shane, Spread of Leaked Cables on Web Prompts Dispute, NY Times, September 1, 2011, available at
http://www.nytimes.com/2011/09/02/us/02wikileaks.html?_r=1.
36 See Scott Shane, Ex-N.S.A. Official Takes Plea Deal, NY TIMES, June 10, 2011, at A1, available at
http://www.nytimes.com/2011/06/10/us/10leak.html?_r=1.
37 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.
38 See Jane Mayer, The Secret Sharer, New Yorker, May 23, 2011, http://www.newyorker.com/reporting/2011/05/23/
110523fa_fact_mayer.
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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.39 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.40
A guilty plea was also secured in a case against an FBI contract linguist accused of providing
secret documents to a blogger.41 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.42
The Obama Administration is seeking to compel New York Times reporter James Risen to testify
at the trial of former CIA officer Jeffrey Sterling, who is accused of providing classified
information to Mr. Risen that formed the basis of part of a book.43 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.44 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,45 but the court declined to reconsider.
The government has filed an appeal of the order at the Court of Appeals for the Fourth Circuit.46
The government is also appealing an order striking two of its primary witnesses for failure to
produce information about them to the defense in a timely manner.47
Another ongoing prosecution involved a former State Department contractor who was indicted in
2010 for disclosing national defense information to a news organization, believed to be Fox
News, related to intelligence regarding North Korea’s nuclear weapons program.48 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.49 The court denied the defendant’s motions
39 United States v. Drake, Crim. No. 10 CR 00181 RDB (N.D. Md.) (Government Motion to Dismiss the Indictment at
the Time of Sentencing) (filed June 10, 2011), available at http://www.fas.org/sgp/jud/drake/061011-dismiss.pdf.
40 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.
41 See Press Release, Department of Justice, Former FBI Contract Linguist Pleads Guilty to Leaking Classified
Information to Blogger (December 17, 2009), available at http://www.justice.gov/opa/pr/2009/December/09-nsd-
1361.html.
42 Id.
43 Jeffrey Sterling was indicted for several counts of violating the Espionage Act (disclosure and retention of national
defense information) as well as mail fraud, conversion of government property, and obstruction of justice. The
indictment is available at http://www.fas.org/sgp/jud/sterling/indict.pdf.
44 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 Recent
Congresses, by Kathleen Ann Ruane.
45 See Government’s Motion for Clarification and Reconsideration, United States v. Sterling, No. 1:10cr485 (E.D. Va.
August 24, 2011), available at http://www.fas.org/sgp/jud/sterling/082411-recon.pdf.
46 United States v. Sterling, No. 11-5028 (4th Cir. October 19, 2011)(filed).
47 Id.
48 See Spencer S. Hsu, State Dept. contractor charged in leak to news organization, WASH. POST, August 28, 2010.
49 Id.
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to dismiss the espionage charges based on the Constitution’s Treason Clause as well as the First
and Fifth Amendments.50
A former CIA officer, John Kiriakou, is the latest person to be charged for the unauthorized
disclosure of classified information to a journalist. Because the disclosures are alleged to have
included the identities of covert CIA employees, he has also been charged under the Intelligence
Identities Protection Act.51 His trial is scheduled to begin in November.
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.52 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,53 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,54 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
50 United States v. Kim, 808 F. Supp. 2d 44 (D.D.C. 2011).
51 50 U.S.C. §§421-426. For more information about this statute, see CRS Report RS21636, Intelligence Identities
Protection Act, by Jennifer K. Elsea.
52 See 18 U.S.C. §952 (prohibiting the disclosure or publication of certain diplomatic material obtained “by virtue of …
employment by the United States”).
53 Act of October 6, 1917, ch. 106, §10(i), 40 Stat. 422.
54 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).
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will be used against the United States or to the benefit of a foreign nation. Violators are subject to
a fine or up to 10 years’ imprisonment, or both,55 as are those who conspire to violate the statute.56
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.57 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.”58 Information that is made
55 18 U.S.C. §793(a)-(c) provides:
(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) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes,
makes, or obtains, or attempts to copy, take, make, or obtain any sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of
anything connected with the national defense; or
(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or
obtain from any person, or from any source whatever, any [protected thing] connected with the
national defense, knowing or having reason to believe ... that it has been or will be obtained, taken,
made, or disposed of by any person contrary to the provisions of this chapter [18 U.S.C. §§792 et
seq.]....
56 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.
57 18 U.S.C. §793(e) provides
Whoever having unauthorized possession of, access to, or control over any document [or other
protected thing], or information relating to the national defense which information the possessor
has reason to believe could be used to the injury of the United States or to the advantage of any
foreign nation, willfully communicates, delivers, transmits ... to any person not entitled to receive
it, or willfully retains the same and fails to deliver it to the officer or employee of the United States
entitled to receive it; … Shall be fined under this title or imprisoned not more than ten years, or
both.
§793(d) is identical to §794(e), except that it applies to persons with authorized access to the information at
issue, in which case it is only an offense to retain or fail to turn the information over to a government official
if there was a demand for its return.
§793(f) likewise applies only to those with authorized access to the covered materials, punishing those who
(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 its 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.
58 The government must demonstrate that disclosure of the information is at least “potentially damaging” to the United
States or advantageous to a foreign government. See United States v. Morison, 844 F.2d 1057, 1072 (4th Cir.), cert.
denied, 488 U.S. (1988)(upholding conviction under 18 U.S.C. §793 for delivery of classified photographs to
publisher). Whether the information is “related to the national defense” under this meaning is a question of fact for the
jury to decide. Id. at 1073.
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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.59 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.60
18 U.S.C. Section 794 (aiding foreign governments or communicating information to an enemy in
time of war) covers “classic spying” cases,61 providing for imprisonment for any term of years or
life, or under certain circumstances, the death penalty.62 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.”63 The
death penalty is available only upon a finding that the offense resulted in the death of a covert
agent or directly concerns nuclear weapons or other particularly sensitive types of information.
The death penalty is also available under 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 reach the enemy.64 These penalties are available to punish any person who
59 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.”).
60 United States v. Squillacote, 221 F.3d 542, 578 (4th Cir. 2000).
61 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).
62 §794. Gathering or delivering defense information to aid foreign government
(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States
or to the advantage of a foreign nation, communicates, delivers, or transmits ... to any foreign
government, or to any faction or party or military or naval force within a foreign country, whether
recognized or unrecognized by the United States, or to any representative, officer, agent, employee,
subject, or citizen thereof, either directly or indirectly, any document [or other protected thing], or
information relating to the national defense, shall be punished by death or by imprisonment for any
term of years or for life, except that the sentence of death shall not be imposed unless the jury or ...
the court, further finds that the offense resulted in the identification by a foreign power (as defined
in section 101(a) of the Foreign Intelligence Surveillance Act of 1978 [50 U.C.S. §1801(a)]) of an
individual acting as an agent of the United States and consequently in the death of that individual,
or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or
other means of defense or retaliation against large-scale attack; war plans; communications
intelligence or cryptographic information; or any other major weapons system or major element of
defense strategy.
63 §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....
64 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.
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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.65
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 and 797.66 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.67 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.”68
65 18 U.S.C. §794(d). Proceeds go to the Crime Victims Fund.
66 §795. Photographing and sketching defense installations
(a) Whenever, in the interests of national defense, the President defines certain vital military and
naval installations or equipment as requiring protection against the general dissemination of
information relative thereto, it shall be unlawful to make any photograph, sketch, picture, drawing,
map, or graphical representation of such vital military and naval installations or equipment without
first obtaining permission of the commanding officer of the military or naval post, camp, or station,
or naval vessels, military and naval aircraft, and any separate military or naval command
concerned, or higher authority, and promptly submitting the product obtained to such commanding
officer or higher authority for censorship or such other action as he may deem necessary....
§797. Publication and sale of photographs of defense installations
On and after thirty days from the date upon which the President defines any vital military or naval
installation or equipment as being within the category contemplated under section 795 of this title
[18], whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing,
map, or graphical representation of the vital military or naval installations or equipment so defined,
without first obtaining permission of the commanding officer ... or higher authority, unless such
photograph, sketch, picture, drawing, map, or graphical representation has clearly indicated thereon
that it has been censored by the proper military or naval authority, shall be fined under this title or
imprisoned not more than one year, or both.
67 §798. Disclosure of classified information
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes
available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or
interest of the United States or for the benefit of any foreign government to the detriment of the
United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the
United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or
appliance used or prepared or planned for use by the United States or any foreign government for
cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign
government; or
(4) obtained by the processes of communication intelligence from the communications of any
foreign government, knowing the same to have been obtained by such processes—
Shall be fined … or imprisoned not more than ten years, or both.
68 18 U.S.C. §798(b).
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Members of the military69 who commit espionage, defined similarly 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),70 and sentenced to death if certain aggravating factors are
found by unanimous determination of the panel.71 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.”
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,72 Article 104, aiding the enemy,73 or under the general article, Article
134.74 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”75 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.
69 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.
70 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.
71 10 U.S.C. §906a(b)-(c).
72 10 U.S.C. §892.
73 10 U.S.C. §904.
74 10 U.S.C. §934.
75 Id.
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Other 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.” 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.76 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. Repeat offenses or attempts can incur a prison
sentence of up to 20 years.
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 explicitly prohibit disclosure of
classified information, it has been used to prosecute “leakers.”77 Violators may be fined,
imprisoned for not more than 10 years, or both, unless the value of the property does not exceed
the sum of $100, in which case the maximum prison term is one year. The statute also covers
knowing receipt or retention of stolen or converted property with the intent to convert it to the
recipient’s own use. It does not appear to have been used to prosecute any recipients of classified
information even where the original discloser was charged under the statute.
50 U.S.C. Section 421 provides for the protection of information concerning the identity of covert
intelligence agents.78 It generally covers persons authorized to know the identity of such agents or
who learn the identify of covert agents as a result of their general access to classified
information,79 but can also apply to a person who learns of the identity of a covert agent through a
76 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 Charles Doyle.
77 See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988)(photographs and reports were tangible property of the
government); United States v. Fowler, 932 F.2d 306 (4th Cir. 1991)(“information is a species of property and a thing of
value” such that “conversion and conveyance of governmental information can violate §641,” citing United States v.
Jeter, 775 F.2d 670, 680-82 (6th Cir. 1985)); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir. 1979). The statute was
used to prosecute a DEA official for leaking unclassified but restricted documents pertinent to an agency investigation.
See Dan Eggen, If the Secret’s Spilled, Calling Leaker to Account Isn’t Easy, WASH. POST, October 3, 2003, at A5
(reporting prosecution of Jonathan Randel under conversion statute for leaking government documents to journalist).
78 The Intelligence Identities and Protection Act of 1982, codified at 50 U.S.C. §§421-26. For more information, see
CRS Report RS21636, Intelligence Identities Protection Act, by Jennifer K. Elsea. The term “covert agent” is defined
to include a non-U.S. citizen “whose past or present intelligence relationship to the United States is classified
information and who is a present or former agent of, or a present or former informant or source of operational
assistance to, an intelligence agency.” 50 U.S.C. §426(4)(c). “Intelligence agency” is defined to include a “foreign
intelligence component of the Department of Defense”; informant means “any individual who furnishes information to
an intelligence agency in the course of a confidential relationship.” 50 U.S.C. §426(5-6). The definitions suggest that
the act is intended to protect the identities of persons who provide intelligence information directly to a military
counterintelligence unit, but perhaps they can be read to cover those who provide information to military personnel
carrying out other functions who provide situation reports intended to reach an intelligence component. In any event,
the extraterritorial application of the statute is limited to U.S. citizens and permanent resident aliens. 50 U.S.C. §424.
79 Persons with direct access to information regarding the identities are subject to a prison term of not more than 10
years, while those who learn the identities through general access to classified information are subject to a term not
(continued...)
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“pattern of activities intended to identify and expose covert agents” and discloses the identity to
any individual not authorized access to classified information, with reason to believe that such
activities would impair U.S. foreign intelligence efforts. This crime is subject to a fine or
imprisonment for a term of not more than three years. To be convicted, a violator must have
knowledge that the information identifies a covert agent whose identity the United States is taking
affirmative measures to conceal. To date, there have been no reported cases interpreting the
statute, but it did result in one conviction pursuant to a guilty plea.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.81 The provision imposes a fine of up to $1,000 and a prison
term 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.82
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. 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,”83
but not, apparently, materials obtained during transmission from U.S. diplomatic missions abroad
to the State Department or vice versa (unless 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). The removal of classified material concerning foreign relations with
the intent to store them at an unauthorized location is a misdemeanor under 18 U.S.C. Section
1924, which also applies only to U.S. government employees.
(...continued)
greater than five years. 50 U.S.C. §421. 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. §422(b).
80 See Richard B. Schmitt, Rare Statute Figures in Rove Case, LA TIMES, July 15, 2005, at A15 (reporting 1985
conviction of Sharon Scranage, a clerk for the CIA in Ghana, for disclosing identities of covert agents).
81 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.
82 Id.
83 18 U.S.C. §952.
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50 U.S.C. Section 783 penalizes government officers or employees who, without proper authority,
communicate classified information to a person whom the employee has reason to suspect is an
agent or representative of a foreign government.84 It is also unlawful for the representative or
agent of the foreign government to receive classified information.85 Violation of either of these
provisions is punishable by a fine of up to $10,000 or imprisonment for not more than 10 years.86
Violators are thereafter prohibited from holding federal public office.87 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.88
Analysis
In light of the foregoing, it seems that there is ample statutory authority for prosecuting
individuals who elicit or disseminate many of the documents at issue, as long as the intent
element can be satisfied and potential damage to national security can be demonstrated.89 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.90 Publication is not expressly
84 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.
85 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.
86 50 U.S.C. §783(c).
87 Id.
88 50 U.S.C. §783(e).
89 It appears the intent element is satisfied by proof that the material was obtained or disclosed “with intent or reason to
believe that the information is to be used [or could be used] to the injury of the United States, or to the advantage of
any foreign nation.” 18 U.S.C. §§793 and 794. This has been interpreted to require the prosecution to demonstrate a
“bad purpose.” See United States v. Morison, 844 F.2d 1057, 1071 (“An act is done willfully if it is done voluntarily
and intentionally and with the specific intent to do something that the law forbids. That is to say, with a bad purpose
either to disobey or to disregard the law.”). If any of the disclosed material involves communications intelligence as
described in 18 U.S.C. §798, the conduct must be undertaken knowingly and willfully to meet the intent threshold.
90 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
(continued...)
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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.91
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,”92 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. Leaks of classified information to the
press have only rarely been punished as crimes, and 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.”93 This does not answer the question whether the act is intended to apply to foreigners
(...continued)
the term “publish” in that section of the Espionage Act and legislative history demonstrating Congress had rejected an
effort to reach publication).
91 See Harold Edgar and Benno C. Schmidt, Jr., Curtiss-Wright Comes Home: Executive Power and National Security
Secrecy, 21 HARV. C.R.-C.L. L. REV. 349, 395 (1986) (questioning whether Espionage Act can be construed to except
publication).
92 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. There appears to be no court precedent interpreting “agent of the United
States” in the context of18 U.S.C. §794(a).
93 See United States v. Zehe, 601 F. Supp. 196, 198 (D.C. Mass. 1985)(citing former 18 U.S.C. §791 repealed by P.L.
87-369, 75 Stat. 795(1961)).
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outside the United States. Because espionage is recognized as a form of treason,94 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.95 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
offenses were committed within East Germany or in Mexico. The court rejected the defendant’s
contention that construing the act to cover him would permit the prosecution of noncitizens “who
might merely have reviewed defense documents supplied to them by their respective
governments.”96 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.”97
Under this construction, it is possible that noncitizens involved in publishing materials disclosed
to them by another would be subject to prosecution only if it can be demonstrated that they took
an active role in obtaining the information. The case was not appealed. The defendant, Dr. Alfred
Zehe, pleaded guilty in February, 1985 and was sentenced to eight years in prison, but was traded
as part of a “spy swap” with East Germany in June of that year.98
Application of the Espionage Act to persons who do not hold a position of trust with the
government, outside of the classic espionage scenario (in which an agent of a foreign government
delivers damaging information to such hostile government), has been controversial. The only
known case of that type involved two pro-Israel lobbyists in Washington, Steven J. Rosen and
Keith Weissman, associated with 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.99 Their part in the conspiracy amounted to receiving information from government
employees with knowledge that the employees were not authorized to disclose it.100 The
94 See 70 AM. JUR. 2D Sedition, Subversive Activities and Treason §15 (2005). Courts have not been persuaded that the
Treason Clause of the Constitution requires the safeguards associated with treason apply also to similar crimes such as
espionage or levying war against the United States. See id.; United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), cert.
denied, 344 U.S. 838 (1952)(espionage); United States v. Rodriguez, 803 F.2d 318 (7th Cir.), cert. denied, 480 U.S. 908
(1986) (levying war).
95 Zehe at 198 (“Espionage against the United States, because it is a crime that by definition threatens this country’s
security, can therefore be punished by Congress even if committed by a noncitizen outside the United States.”).
96 Id. at 199.
97 Id.
98 Henry Giniger and Milt Freudenheim, Free to Spy Another Day?, NY TIMES, Jun 16, 1985, at A.4.
99 See United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006); 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).
100 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”).
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prosecution was criticized for effectively “criminalizing the exchange of information,”101 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.102 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.103
Extradition Issues104
Assuming that the Espionage Act does apply to foreign nationals for their conduct overseas, there
may be several legal obstacles to the extradition of such a suspect to the United States to face
charges under the statute, 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.105 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.106 A political offense may be characterized as a pure political offense, or one that is
101 Time to Call It Quits, WASH. POST, March 11, 2009 (editorial urging Attorney General to drop charges).
102 See William E. Lee, Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes, 36 AM. J. CRIM.
L. 129, 132-34 (2009). The solicitation theory relied on a 2008 Supreme Court case finding that solicitation of an
illegal transaction is not speech deserving of First Amendment protection. United States v. Williams, 553 U.S. 285
(2008). See id. at 133 (citing Brief of the United States at 43-44, United States v. Rosen, 557 F.3d 192 (4th Cir. 2008)
(No. 08-4358)). Williams had to do with solicitation of child pornography, but Justice Scalia posed as a rhetorical
question whether Congress could criminalize solicitation of information thought to be covered by the Espionage Act:
“Is Congress prohibited from punishing those who attempt to acquire what they believe to be national-security
documents, but which are actually fakes? To ask is to answer.” Williams at 304.
103 See Markon, supra footnote 99 (quoting Dana J. Boente, the acting U.S. attorney in Alexandria, VA, where the trial
was scheduled to take place). The judge found the scienter requirement of 18 U.S.C. §793 to require that the defendants
must have reason to believe the communication of the information at issue “could be used to the injury of the United
States or to the advantage of any foreign nation.” 445 F. Supp. 2d at 639. Moreover, the judge limited the definition of
“information related to the national defense” to information that is “potentially damaging to the United States or ...
useful to an enemy of the United States.” Id. (citing United States v. Morison, 844 F.2d 1057, 1084 (4th Cir. 1988)
(Wilkinson, J., concurring)).
104 This section is contributed by Michael John Garcia, Legislative Attorney.
105 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 Michael John Garcia and
Charles Doyle, at Appendix A.
106 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
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directed singularly at a sovereign entity and does not have the features an ordinary crime (e.g.,
there is no violation of the private rights of individuals),107 or 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.”108
The political offense exception may pose a significant obstacle to the extradition of a foreign
national 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,109 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.110
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),111 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).112
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.113 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
(...continued)
political offense.”).
107 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).
108 Quinn, 783 F.2d at 791 (internal citations omitted).
109 See, e.g., Quinn, 783 F.2d at 791 (citing treason, sedition, and espionage as examples of purely political offenses);
BASSIOUNI, supra footnote 107, at 604.
110 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 per se. 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.
111 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.
112 18 U.S.C. §641
113 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).
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(subject to other limitations found elsewhere in the applicable extradition treaty).114 No U.S.
extradition treaty currently in force lists espionage as an extraditable offense.115 Assuming for the
sake of argument that certain espionage offenses 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 foreign national 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.116 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.117 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.118 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.119
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
114 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 only 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).
115 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,
116 See CRS Report 94-166, Extraterritorial Application of American Criminal Law, by Charles Doyle.
117 See CRS Report 98-958, Extradition To and From the United States: Overview of the Law and Recent Treaties, by
Michael John Garcia and Charles Doyle. 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, Charles L. Blakesley, A Conceptual Framework for Extradition and Jurisdiction Over Extraterritorial
Crimes, 1984 UTAH L. REV. 685 (1984).
118 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”).
119 For examples of specific treaties, see CRS Report 98-958, Extradition To and From the United States: Overview of
the Law and Recent Treaties.
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for executive discretion.120 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.
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.121 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.122
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....”123 Despite this absolute language, the
120 BASSIOUNI, supra footnote 107, at 739.
121 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.
122 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). See also 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.
123 For an analysis of exceptions to the First Amendment, see CRS Report 95-815, Freedom of Speech and Press:
Exceptions to the First Amendment, by Kathleen Ann Ruane.
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Supreme Court has held that “[t]he Government may ... regulate the content of constitutionally
protected speech in order to promote a compelling interest if it chooses the least restrictive means
to further the articulated interest.”124
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.”125 Protection of the national security from external threat is without doubt a compelling
government interest.126 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.127 Speech likely to incite immediate violence, for example, may be suppressed.128
Speech that would give military advantage to a foreign enemy is also susceptible to government
regulation.129
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.130 Actual damage need not be proved, but potential damage must be more than merely
speculative and incidental.131 On the other hand, the Court has stated that “state action to punish
the publication of truthful information seldom can satisfy constitutional standards.”132 And it has
described the constitutional purpose behind the guarantee of press freedom as the protection of
“the free discussion of governmental affairs.”133
124 Sable Communications of California v. Federal Communications Commission, 492 U.S. 115, 126 (1989).
125 Id.
126 See Haig v. Agee, 453 U.S. 280 (1981) (“It is ‘obvious and unarguable’ that no governmental interest is more
compelling than the security of the Nation.”)(citing Aptheker v. Secretary of State, 378 U.S. 500, 509; accord Cole v.
Young, 351 U.S. 536, 546 (1956)).
127 See Schenck v. United States, 249 U.S. 47 (1919) (formulating “clear and present danger” test).
128 Brandenburg v. Ohio, 395 U.S. 444 (1969).
129 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.”).
130 “National Security” is defined as national defense and foreign relations. See Exec. Order No. 13526, 75 Fed. Reg.
707 §6.1(cc) (January 5, 2010).
131 See, e.g., New York Times Co. v. United States, 403 U.S. 713, 725 (1971) (Brennan, J., concurring) (rejecting as
insufficient government’s assertions that publication of Pentagon Papers “could,” “might,” or “may” prejudice the
national interest); Elrod v. Burns, 427 U.S. 347, 362 (1976) (“The interest advanced must be paramount, one of vital
importance, and the burden is on the government to show the existence of such an interest.”) (citing Buckley v. Valeo,
424 U.S. 1, 94(1976); Williams v. Rhodes, 393 U.S. 23, 31-33(1968); NAACP v. Button, 371 U.S. 38, 45 (1963); Bates
v. Little Rock, 361 U.S. 516, 524 (1960); NAACP v. Alabama, 357 U.S. 449, 464-466 (1958); Thomas v. Collins, 323
U.S. 516, 530 (1945)).
132 Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (citing Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)).
133 Mills v. Alabama, 384 U.S. 214, 218 (1966). Because of the First Amendment purpose to protect the public’s ability
to discuss governmental affairs along with court decisions denying that it provides any special rights to journalists, e.g.,
Branzburg v. Hayes, 408 U.S. 665 (1972), it is not likely a plausible argument to posit that it does not apply to the
foreign press. See United States v. 18 Packages of Magazines 238 F. Supp. 846, 847-848 (D.C. Cal. 1964) (“Even if it
be conceded, arguendo, that the ‘foreign press’ is not a direct beneficiary of the Amendment, the concession gains
nought for the Government in this case. The First Amendment does protect the public of this country. … The First
Amendment surely was designed to protect the rights of readers and distributors of publications no less than those of
(continued...)
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Although information properly classified in accordance with statute or executive order carries by
definition, if disclosed to a person not authorized to receive it, the potential of causing at least
identifiable harm to the national security of the United States,134 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.”135 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.136 Typically, courts have been
unwilling to review decisions of the executive related to national security, or have made a strong
presumption that the material at issue is potentially damaging.137 Still, judges have recognized
that the government must make some showing that the release of specific national defense
information has the potential of harming U.S. interests, lest the Espionage Act become a means to
punish whistle-blowers who reveal information that poses more of a danger of embarrassing
public officials than of endangering national security.138
(...continued)
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), available at http://crs.gov/conan/default.aspx?mode=topic&doc=Amendment01.xml&t=2|3.
134 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.
135 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).
136 See, e.g., United States v. Abu-Jihaad 600 F.Supp.2d 362, 385 -386 (D. Conn. 2009) (although completely
inaccurate information might not be covered, information related to the scheduled movements of naval vessels was
sufficient to bring materials within the ambit of national defense information).
137 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.”).
138 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).
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The Supreme Court seems satisfied that national security is a vital interest sufficient to justify
some intrusion into activities that would otherwise be protected by the First Amendment—at least
with respect to federal employees. Although the Court has not held that government classification
of material is sufficient to show that its release is damaging to the national security,139 it has
seemed to accept without much discussion the government’s assertion that the material in
question is damaging. It is unlikely that a defendant’s bare assertion that information poses no
danger to U.S. national security will be persuasive without some convincing evidence to that
effect, or proof that the information is not closely guarded by the government.140
A challenge to the Espionage Act has reached the Supreme Court for decision in only one
instance. In Gorin v. United States,141 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 includes potential damage in case
of unauthorized release of protected information and materials. Gorin was a “classic case” of
espionage, and did not involve a challenge based on the First Amendment right to free speech.
The Court agreed with the government that the term “national defense” was not vague; it was
satisfied that the term describes “a generic concept of broad connotations, referring to the military
and naval establishments and the related activities of national preparedness.”142 Whether
information was “related to the national defense” was a question for the jury to decide,143 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.”144 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. Morison145 is significant in that it represents the first case in which a person was
convicted for selling classified documents to the media.146 Samuel Loring Morison, charged with
providing classified satellite photographs to the British defense periodical Jane’s Defence Weekly,
argued that the espionage statutes did not apply to his conduct because he could not have had the
requisite intent to commit espionage. The Fourth Circuit rejected his appeal, finding the intent to
sell photographs that he clearly knew to be classified sufficient to satisfy the scienter requirement
under 18 U.S.C. Section 793(d) (disclosure by lawful possessor of defense information to one not
139 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).
140 See United States v. Dedeyan, 594 F.2d 36, 39 (4th Cir. 1978).
141 312 U.S. 19 (1941).
142 Id. at 28.
143 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.
144 Id. at 31.
145 844 F.2d 1057 (4th Cir.), cert. denied, 488 U.S. 908 (1988).
146 Efforts to prosecute Daniel Ellsberg and Anthony Russo in connection with the disclosure of the Pentagon Papers
were unsuccessful after the judge dismissed them for prosecutorial misconduct. More recently, a Defense Department
employee pleaded guilty to charges under the Espionage Act for disclosing classified material to lobbyists and to
journalists. United States v. Franklin, Cr. No. 05-225 (E.D. Va., 2005). For a description of these and other relevant
cases, see Lee, supra footnote 100.
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entitled to receive it). 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.147 His assertedly laudable motive in permitting publication of
the photographs was not found to negate the element of intent.148
The fact that the Morison prosecution involved a leak to the media with no obvious intent to
transmit sensitive information to hostile intelligence services did not persuade the jury or the
judges involved that he lacked culpability, but the Justice Department did come under some
criticism on the basis that such prosecutions are so rare as to amount to a selective prosecution in
his case, and that it raised concerns about the chilling effect such prosecutions could have on
would-be whistle-blowers who could provide information embarrassing to the government but
vital to public discourse.149 On leaving office, President Clinton pardoned Morison.150
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.151 To be
sure, the case involved an injunction against publication rather than a prosecution for having
published information, but the rationale for protecting such disclosure may nevertheless inform
any decision involving a conviction. In a per curiam opinion accompanied by nine concurring or
dissenting opinions, the U.S. Supreme Court refused to grant the government’s request for an
injunction to prevent the New York Times and the Washington Post from printing a classified
study of the U.S. involvement in Vietnam. The Court explained:
prior restraints are the most serious and least tolerable infringement on First Amendment
rights.... A prior restraint, ... by definition, has an immediate and irreversible sanction. If it
can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior
restraint “freezes” it at least for the time. The damage can be particularly great when the
prior restraint falls upon the communication of news and commentary on current events.152
A majority of the justices suggested in separate dicta that the newspapers—along with the former
government employee who leaked the documents to the press—could be prosecuted under the
Espionage Act.153 Still, in later cases the Court stressed that any prosecution of a publisher for
147 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).
148 844 F.2d at 1073-74. Morison had stated that he sought the publication of the photos because they would
demonstrate to the public the gravity of the threat posed by the Soviet Union, which he hoped would result in an
increased defense budget. See P. Weiss, The Quiet Coup: U.S. v. Morison - A Victory for Secret Government,
HARPER’S, September 1989.
149 See Jack Nelson, U.S. Government Secrecy and the Current Crackdown on Leaks 8, The Joan Shorenstein Center on
the Press, Politics and Public Policy, Working Paper Series 2003-1 (2002), available at http://www.hks.harvard.edu/
presspol/publications/papers/working_papers/2003_01_nelson.pdf.
150 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, available at http://www.fas.org/sgp/news/2001/04/moynihan.html.
151 New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).
152 Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court order restraining the
publication or broadcast of accounts of confessions or admissions made by the defendant at a criminal trial).
153 403 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.
(continued...)
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what has already been printed would have to overcome only slightly less insurmountable
hurdles.154 Moreover, if national security interests were not sufficient to outweigh the First
Amendment principles implicated in the prior restraint of pure speech related to the public
interest, as in the Pentagon Papers case,155 it is difficult to discern an obvious rationale for
finding that punishing that same speech after it has already been disseminated nevertheless tilts
the balance in favor of the government’s interest in protecting sensitive information.
The publication of truthful information that is lawfully acquired enjoys considerable First
Amendment protection.156 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.”157 (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.158 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.159 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.160
Bartnicki had to do with the disclosure of illegally intercepted communications in violation of
federal and state wiretap laws, which prohibited disclosure of such information by anyone who
(...continued)
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).
154 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.
155 For a list of the types of damage the government argued would ensue if its efforts to enjoin publication failed, see
William H. Freivogel, Publishing National Security Secrets: The Case for “Benign Indeterminacy,” 3 J. NAT’L
SECURITY L. & POL’Y 95, 112-13 (2009).
156 See, e.g., Landmark Commc’ns. v. Virginia, 435 U.S. 829, 837 (1978).
157 Florida Star v. B.J.F. 491 U.S. 524, 535 (1989). The Court also questioned whether the receipt of information can
ever constitutionally be proscribed. Id. at 536.
158 Daily Mail, 443 U.S at 103. Here, routine newsgathering consisted of perusing publicly available court records.
159 532 U.S. 514 (2001).
160 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).
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knew or had reason to know that it was the product of an unlawful interception, but did not
prohibit the receipt of such information. The Espionage Act, by contrast, does expressly prohibit
the receipt of 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.161
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.
Prior Legislative Efforts
The current laws protecting classified information have been criticized 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.162 Conversely, others argue that they fail to take due
consideration of the value of releasing to the public information that the government would prefer
to keep out of view.163
The Classified Information Protection Act of 2001
In 2000, and again in 2001-2002, Congress sought to create 18 U.S.C. Section 798A, subsection
(a) of which would have read:
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.164
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.165 In short, the provision would have made it a
161 18 U.S.C. §793(c). The provision does not appear to cover receipt of intangible information.
162 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).
163 See id.
164 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.
165 18 USCS §1924 prohibits removal of government-owned or controlled classified information by a government
(continued...)
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crime to disclose or attempt to disclose classified information166 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 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,”167 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 2001,168 but President Clinton 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.”169 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.170
The 107th Congress considered passing an identical provision,171 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
(...continued)
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.
166 “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.”
167 See H.Rept. 106-969 at 44 (2000).
168 H.R. 4392 §304, 106th Congress.
169 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).
170 Id.
171 The Classified Information Protection Act of 2001, H.R. 2943, 107th Cong;
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legislative or administrative actions.172 An identical measure was introduced late in the 109th
Congress, but was not reported out of committee.173
The Attorney General, in his report to the 108th Congress, concluded that
[a]lthough 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.174
Current Proposals
The Securing Human Intelligence and Enforcing Lawful Dissemination Act (“SHIELD Act”), S.
315,175 introduced by Senator Ensign on February 10, 2011, and a companion bill in the House,
H.R. 703,176 would amend 18 U.S.C. Section 798 to add coverage for disclosures of classified
information related to human intelligence activities (the provision currently covers only certain
information related to communications intelligence). The bills would add “transnational threat” to
the entities whose benefit from unlawful disclosures would make such disclosure illegal. The
statute as written prohibits disclosure of classified information for the benefit of any foreign
government (or to the detriment of the United States, which would remain unchanged if the bill is
enacted). A “transnational threat” for purposes of the bills means any ‘‘any transnational activity
(including international terrorism, narcotics trafficking, the proliferation of weapons of mass
destruction and the delivery systems for such weapons, and organized crime) that threatens the
national security of the United States” or any person or group who engages in any of these
activities. This change is likely intended to ensure that disclosures of any covered information
that a violator “publishes, or uses in any manner … for the benefit” of Al Qaeda or any other
terrorist group, international drug cartels, arms dealers who traffic in weapons of mass
destruction, and other international criminals will be subject to prosecution, regardless of whether
the group purports to govern any territory. As is currently the case, it is unclear whether this
conduct must be undertaken “knowingly and willfully” to incur a punishment, or whether those
qualifiers apply only to furnishing covered information to an unauthorized individual.
The bills would add two types of information to be covered by the prohibition: “information
concerning the human intelligence activities of the United States or any foreign government”; and
172 Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, §310 (2001).
173 S. 3774, 109th Cong.
174 Report to Congress on Unauthorized Disclosure of Classified Information, October 15, 2002 (citations omitted).
175 The bill was introduced at the end of the 111th Congress as S. 4004.
176 A substantially identical bill was introduced as H.R. 6506 at the end of the 111th Congress.
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“information concerning the identity of a classified source or informant of an element of the
intelligence community of the United States.” “Human intelligence” is defined under the bills as
“all procedures, sources, and methods employed in the collection of intelligence through human
sources.” “Classified information” would be defined, as in the current provision, as “information
which, at the time of a violation of this section, is, for reasons of national security, specifically
designated by a United States Government Agency for limited or restricted dissemination or
distribution.” In other words, the information need not be classified information within the
meaning of the executive order, so long as it has been specifically designated as subject to some
form of restricted dissemination due to national security concerns. Because the concept of
national security includes foreign affairs as well as national defense, the information covered may
already be broader than that protected under the preceding sections of the Espionage Act.
However, the proposed limitation on the identity of informants and sources to those giving
information to an element of the intelligence community may be interpreted to exclude
informants and sources who provide information to entities not listed in 50 U.S.C. Section
401a(4), such as infantry units or consular offices.177
Senator Cardin introduced the Espionage Statutes Modernization Act of 2010, S. 355, on
February 15, 2011.178 This bill would broaden the Espionage Act provisions by extending their
coverage to all classified information related to the national security (rather than merely national
defense information) and would incorporate non-state threats into the prohibition by substituting
“foreign power” (as defined under the Foreign Intelligence Surveillance Act, at 50 U.S.C. Section
1801) for “foreign government” or “foreign nation.” The bill also includes a new provision to be
codified at 18 U.S.C. Section 1925 to prohibit the intentional unauthorized disclosure of properly
classified information by government employees, contractors, or consultants in violation of the
terms of a nondisclosure agreement, provides for extraterritorial jurisdiction over the offense, and
instructs the U.S. Sentencing Commission to review and amend as appropriate the Sentencing
177 Only the House bill defines “Intelligence Community” with reference to 50 U.S.C. §401a(4), H.R. 703 §2(b), but
the definition could be inferred for purposes of the Senate bill, which does not define “intelligence community.” 50
U.S.C. §401(a)(4) defines intelligence community to include
(A) The Office of the Director of National Intelligence.
(B) The Central Intelligence Agency.
(C) The National Security Agency.
(D) The Defense Intelligence Agency.
(E) The National Geospatial-Intelligence Agency.
(F) The National Reconnaissance Office.
(G) Other offices within the Department of Defense for the collection of specialized national
intelligence through reconnaissance programs.
(H) The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps, the Federal
Bureau of Investigation, and the Department of Energy.
(I) The Bureau of Intelligence and Research of the Department of State.
(J) The Office of Intelligence and Analysis of the Department of the Treasury.
(K) The elements of the Department of Homeland Security concerned with the analysis of
intelligence information, including the Office of Intelligence of the Coast Guard.
(L) Such other elements of any other department or agency as may be designated by the President,
or designated jointly by the Director of National Intelligence and the head of the department or
agency concerned, as an element of the intelligence community.
178 See also S. 4051 (111th Cong.) (identical to current version except that it included jurisdiction over aiders and
abettors of violations of the provision enforcing secrecy obligations, at least where such violations occurred overseas).
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Guidelines with respect to the new provision to take into consideration a number of factors
relevant to the nature and scope of the offending disclosures.
H.R. 1823, the Criminal Code Modernization and Simplification Act of 2011, would overhaul
the Espionage Act along with the rest of title 18, U.S. Code. Chapter 15, subchapter E of the
proposed criminal code would replace the Espionage Act with three sections. Section 302 would
prohibit the gathering of defense information or its transmission to any person not entitled to
receive it, if done with the intent or reason to believe it “will be used to the injury of the United
States, or to the advantage of any foreign power.” Section 303 would apply only to those having
lawful possession or control of defense information, providing for punishment of not more than
10 years’ imprisonment in the event they recklessly permit it to be lost, stolen, or destroyed, or
fail to report such an eventuality to an appropriate superior officer. Section 304 would prohibit the
knowing disclosure of classified or similarly protected information to a person not entitled to
receive it, or the use of such information to the injury of the United States or the advantage of a
foreign power. Protected information would include restricted data under the Atomic Energy Act
or information designated by the U.S. government as restricted on the basis of some relationship
to cryptographic systems or communications intelligence, in substance as defined under current
18 U.S.C. Section 798. The proposed language eliminates any reference to specific items
containing defense information or to specific means of acquiring or disseminating it, but
otherwise appears to track the current law. The substitution of “foreign power” (as defined in the
Foreign Intelligence Surveillance Act) for “foreign government” is perhaps the most noteworthy
change from the Espionage Act as currently in force.
Two measures have been introduced to address recent newspaper reports alleged to contain
sensitive intelligence information. The House of Representatives included a provision in the
National Defense Authorization Act for FY2013 (H.R. 4310), passed by the House on May 18,
2012, to require the Attorney General to initiate within 30 days after enactment an investigation
into possible violations of federal law regarding the disclosure of “sensitive information involving
the military, intelligence, and operational capabilities of the United States and Israel,” and to
report on the status of the investigation no later than 60 days after enactment, Section 1099C. A
resolution was introduced in the Senate to express the sense of the Senate that the Attorney
General should delegate the task of investigating recent leaks of “classified and highly sensitive
information related to various United States military and intelligence plans, programs, and
operations” to an outside special counsel independent of the Department of Justice.
Conclusion
The Espionage Act on its face applies to the receipt and unauthorized dissemination of national
defense information, which has been interpreted broadly to cover closely held government
materials related to U.S. military operations, facilities, and personnel. It has been interpreted to
cover the activities of foreign nationals overseas, at least when they take an active part in seeking
out information. Although cases involving disclosures of classified information to the press have
been rare, it seems clear that courts have regarded such disclosures by government employees to
be conduct that enjoys no First Amendment protection, regardless of the motives of the divulger
or the value the release of such information might impart to public discourse.179 The Supreme
179 The courts have permitted government agencies to enjoin their employees and former employees from publishing
information they learned on the job, United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063
(continued...)
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Court has stated, however, that the question remains open whether the publication of unlawfully
obtained information by the media can be punished consistent with the First Amendment. Thus,
although unlawful acquisition of information might be subject to criminal prosecution with few
First Amendment implications, the publication of that information remains protected. Whether the
publication of national security information can be punished likely turns on the value of the
information to the public weighed against the likelihood of identifiable harm to the national
security, arguably a more difficult case for prosecutors to make.
Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
(...continued)
(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).
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