Order Code RL31245
CRS Report for Congress
Received through the CRS Web
Protection of National Security
Information: The Classified
Information Protection Act of 2001
January 16, 2002
Jennifer Elsea
Legislative Attorney
American Law Division
Congressional Research Service ˜
The Library of Congress
Protection of National Security Information:
The Classified Information Protection Act of 2001
Summary
The purpose of this report is to identify legal issues relevant to legislation
introduced in Congress that provides for criminal punishment for the unauthorized
disclosure of classified information by government employees and contractors with
access to such information. The Classified Information Protection Act of 2001, H.R.
2943, would make such an act a felony punishable by a fine or a prison term no longer
than three years, or both.
The language in H.R. 2943 is identical to section 304 of H.R. 4392, 106th
Congress, the Intelligence Authorization Act for Fiscal Year 2001. H.R. 4392 was
passed by both Houses of Congress but vetoed by President Clinton, who cited
section 304 as the reason for his veto. The Intelligence Authorization Act was then
passed as H.R. 5630, P.L. 106-567, without the language of section 304. The stated
purpose of section 304 was to stop “leaks” by public officials of sensitive national
security information to the press, in an effort to prevent the compromise of
intelligence sources and methods and other sensitive information in the open media.
This report will first describe H.R. 2943, the stated intent of the Congress in
passing the measure as section 304 of the intelligence authorization bill for 2001, and
President Clinton’s stated reasons for vetoing it. The report will then describe the
current state of the law with regard to the unauthorized disclosure of classified
information, including criminal penalties that can be imposed upon violators; it will
also discuss civil penalties, as well as some of the disciplinary actions and
administrative procedures available to the agencies of federal government that have
been addressed by federal courts, and will then assess any changes to the law that
would result if the language of H.R. 2943 were enacted. Finally, the report will
consider possible constitutional infirmities that might leave the law vulnerable to
judicial intervention under the First Amendment, the Fifth Amendment, or the
constitutional separation of powers between the President and Congress.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Provisions of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Criminal Statutes for the Protection of Classified Information . . . . . . . 3
§ 797. Publication and sale of photographs of defense installations . . . . . . 9
Civil Penalties and Other Measures . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Constitutional Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
First Amendment Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Protection of National Security Information:
The Classified Information
Protection Act of 2001
Introduction
The purpose of this report is to identify legal issues relevant to proposals
providing criminal punishment for the unauthorized disclosure of classified
information by government employees and contractors with access to such
information. The Classified Information Protection Act of 2001, H.R. 2943, would
make such an act a felony punishable by a fine or a prison term no longer than three
years, or both.
The language in the Act is identical to section 304 of H.R. 4392, 106th Congress,
the Intelligence Authorization Act for Fiscal Year 2001. H.R. 4392 was passed by
both Houses of Congress but vetoed by President Clinton, who cited section 304 as
the reason for his veto.1 The Intelligence Authorization Act was then passed as H.R.
5630, P.L. 106-567, without the language of section 304. Congress later directed the
Attorney General and heads of other departments to undertake a review of the current
protections against the unauthorized disclosure of classified information, and to issue
a report recommending legislative or administrative actions by May 1, 2002.2
This report will first describe H.R. 2943, the stated intent of the Congress in
passing the measure as section 304 of the intelligence authorization bill for 2001, and
President Clinton’s stated reasons for vetoing it. The report will then describe the
current state of the law with regard to the unauthorized disclosure of classified
information, including criminal penalties that can be imposed upon violators; it will
also discuss civil penalties, as well as some of the disciplinary actions and
administrative procedures available to the agencies of federal government that have
been addressed by federal courts, and will then assess any changes to the law that
would result if the language of H.R. 2943 were enacted. Finally, the report will
consider possible constitutional infirmities that might leave the law vulnerable to
judicial intervention under the First Amendment, the Fifth Amendment, or the
constitutional separation of powers between the President and Congress.
Provisions of the Act
H.R. 2943 would create 18 U.S.C. § 798A, subsection (a) of which would read:
1
See Statement by the President to the House of Representatives, 36 WEEKLY COMP. PRES.
DOC. 278 (Nov. 4, 2000).
2
See Intelligence Authorization Act for Fiscal Year 2002, Pub. L. No. 107-108, § 310 (2001).
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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.
In short, subsection (a) would make it a crime to disclose or attempt to disclose
classified information to any person who does not have authorized access to such
information. The remaining subsections would clarify the boundaries of the
prohibitions in subsection (a). Subsection (b) of the legislation provides exceptions
for 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). Subsection (c) defines terms used
in the legislation. The definition of “classified information” covers both “properly
classified” information which is “clearly marked or represented,” and information
which the person making or attempting to make the disclosure “knows or has a reason
to believe has been properly classified by appropriate officials.”3 “Authorized” would
mean “authority or permission to have access ... pursuant to the provisions of a
statute, Executive order, regulation or directive,” a court order, or Senate or House
rules controlling classified information. “Officer or employee of the United States”
would include the definitions set forth in 5 U.S.C. §§ 2104-05 as well as officers and
enlisted members of the Armed Forces as defined in 10 U.S.C. § 101(b).
The language would amend the espionage laws in title 18 by expanding the scope
of information they cover. The new language was originally intended to make it
easier for the government to prosecute unauthorized disclosures of classified
information, or “leaks” of information that might not amount to espionage under the
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.”4 The element of damage
would be met by showing that the unauthorized disclosure was of information that “is
or has been properly classified” under a statute or executive order.
3“Classified information” is fully defined as “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.”
“National Security” is defined as national defense and foreign relations.
See Exec.Order No.
12,958, 60 Fed. Reg.19,825 (Apr. 17, 1995); 18 U.C.S. Appx § 1 (Classified Information
Protection Act).
4
See H.R. REP. NO. 106-969 at 44 (2000).
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Background
The classification by government agencies of documents deemed sensitive has
evolved from a series of executive orders.5 Congress has, for the most part, let the
executive branch make decisions regarding the type of information to be subject to
protective measures. The current criminal statutory framework providing penalties for
the unauthorized disclosure of classified government materials traces its roots to the
Espionage Act of 1917,6 which made it a crime to disclose defense information during
wartime.7 The National Security Act of 19478 directed the Director of the CIA to
protect “intelligence sources and methods.”9 The Atomic Energy Act of 195410
provided for secrecy of information related to nuclear energy and weapons.11 The
Invention Secrecy Act of 195112 gave the government the authority to declare a patent
application secret if disclosure of an invention might expose the country to harm.
Criminal Statutes for the Protection of Classified Information.
National defense information is protected by 18 U.S.C. § 793
et seq. The
penalty for violation of 18 U.S.C. § 793 is a fine or imprisonment for not more than
ten years, or both. Persons convicted of gathering defense information with the intent
or reason to believe the information will be used against the United States or to the
benefit of a foreign nation may be fined or sentenced to no more than ten years
imprisonment.13 Persons who have access to
defense information which they have
5
See SENATE COMM’N ON PROTECTING AND REDUCING GOVERNMENT SECRECY, 103D
CONG., REPORT PURSUANT TO PUBLIC LAW 236 (Comm. Print 1997).
6 Codified at 18 U.S.C.§§ 793
et seq.
7
See Anthony R. Klein, Comment,
National Security Information: Its Proper Role and Scope
in a Representative Democracy, 42
FED. COMM. L.J.
433
, 437(1990) (describing evolution
of anti-espionage laws).
8Codified at 50 U.S.C. § 401
et seq.
950 U.S.C. § 403(g).
10Codified at 42 U.S.C. § 2271
et seq. The dissemination of certain unclassified information
related to nuclear facilities may be restricted by the Secretary of Energy pursuant to 42 U.S.C.
§ 2168 upon a finding that dissemination “could reasonably be expected to result in a
significant adverse effect on the health and safety of the public or the common defense and
security....” 42 U.S.C. § 2168(a)(4)(B).
11
See Benjamin S. DuVal, Jr.,
The Occasions of Secrecy, 47 U. PITT. L. REV. 579, 596
(1986) (detailing restrictions directed at protecting nuclear secrets, or “Restricted Data”).
12Codified at 35 U.S.C. § 181
et seq.
13 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, navy
yard, naval station, submarine base, fueling station, fort, battery, torpedo station,
(continued...)
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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 willfully retain the information despite an order to surrender
it to an officer of the United States, are subject to the same penalty.14 Although it is
13(...continued)
dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless,
or signal station, building, office, research laboratory or station or other place connected
with the national defense owned or constructed, or in progress of construction by the
United States or under the control of the United States, or of any of its officers,
departments, or agencies, or within the exclusive jurisdiction of the United States, or any
place in which any vessel, aircraft, arms, munitions, or other materials or instruments
for use in time of war are being made, prepared, repaired, stored, or are the subject of
research or development, under any contract or agreement with the United States, or any
department or agency thereof, or with any person on behalf of the United States, or
otherwise on behalf of the United States, 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 document, writing,
code book, signal book, sketch, photograph, photographic negative, blueprint, plan,
map, model, instrument, appliance, or note, of anything connected with the national
defense, knowing or having reason to believe, at the time he receives or obtains, or
agrees or attempts to receive or obtain it, 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.];....
14
18 U.S.C. § 793(d)-(f) provides:
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted
with any document, writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, or note relating to the
national defense, or information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicates, delivers, transmits or causes
to be communicated, delivered, or transmitted or attempts to communicate, deliver,
transmit or cause to be communicated, delivered or transmitted the same to any person
not entitled to receive it, or willfully retains the same and fails to deliver it on demand
to the officer or employee of the United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over any
document, writing, code book, signal book, sketch, photograph, photographic negative,
blueprint, plan, map, model, instrument, appliance, or note relating to the national
defense, or information relating to the national defense which information the possessor
(continued...)
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not necessary that the information be classified by a government agency, the courts
give deference to the executive determination of what constitutes “defense
information.”15 Any person who is lawfully entrusted with defense information and
who permits it to be disclosed or lost, or who does not report such a loss or
disclosure, is also subject to a penalty of up to ten years in prison.
18 U.S.C. § 794 provides for imprisonment for any term of years or life, or under
certain circumstances, the death penalty.16 The provision penalizes anyone who
14(...continued)
has reason to believe could be used to the injury of the United States or to the advantage
of any foreign nation, willfully communicates, delivers, transmits or causes to be
communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit
or cause to be communicated, delivered, or transmitted the same to any person not
entitled to receive it, or willfully retains the same and fails to deliver it to the officer or
employee of the United States entitled to receive it; or
(f) Whoever, being entrusted with or having lawful possession or control of any
document, writing, code book, signal book, sketch, photograph, photographic negative,
blueprint, plan, map, model, instrument, appliance, note, or information, relating to the
national defense, (1) through gross negligence permits the same to be removed from its
proper place of custody or delivered to anyone in violation of his trust, or to be lost,
stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally
removed from its proper place of custody or delivered to anyone in violation of his 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--
Shall be fined under this title or imprisoned not more than ten years, or both.
15
See United States v. Morison, 844 F.2d 1057 (4th Cir.),
cert. denied, 488 U.S.
(1988)(upholding conviction under 18 U.S.C. § 793 for delivery of classified photographs to
publisher).
16 § 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, or attempts to communicate, deliver, or transmit, 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, writing,
code book, signal book, sketch, photograph, photographic negative, blueprint, plan,
map, model, note, instrument, appliance, 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, if there is no jury, 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.
(continued...)
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transmits defense information to a foreign government (or other foreign entity) with
the intent or reason to believe it will be used against the United States. The death
penalty is available only upon a finding that the offense resulted in the death of a
16(...continued)
(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.
(c) If two or more persons conspire to violate 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.
(d) (1) Any person convicted of a violation of this section shall forfeit to the United
States irrespective of any provision of State law--
(A) any property constituting, or derived from, any proceeds the person
obtained, directly or indirectly, as the result of such violation, and
(B) any of the person's property used, or intended to be used, in any manner
or part, to commit, or to facilitate the commission of, such violation. For
the purposes of this subsection, the term "State" includes a State of the
United States, the District of Columbia, and any commonwealth, territory,
or possession of the United States.
(2) The court, in imposing sentence on a defendant for a conviction of a violation
of this section, shall order that the defendant forfeit to the United States all
property described in paragraph (1) of this subsection.
(3) The provisions of subsections (b), (c) and (e) through (p) of section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C.
853(b), (c), and (e)-(p)) shall apply to--
(A) property subject to forfeiture under this subsection;
(B) any seizure or disposition of such property; and
(C) any administrative or judicial proceeding in relation to such property, if
not inconsistent with this subsection.
(4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime
Victims Fund in the Treasury all amounts from the forfeiture of property under this
subsection remaining after the payment of expenses for forfeiture and sale authorized
by law.
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covert agent or directly concerns nuclear weapons or other particularly sensitive types
of information. The death penalty is also available under §794 for violators who
gather or transmit information related to military plans and the like during time of
war, with the intent that the information reach the enemy.17
Members of the military18 who commit espionage, defined similarly to the
conduct prohibited in 18 U.S.C. § 794, may be tried by court-martial for violating
Article 106a of the UCMJ,19 and sentenced to death if certain aggravating factors are
found by unanimous determination of the panel.20 Unlike offenses under § 794, Article
17During 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.
18Persons 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, and certain others with military status. 10 U.S.C. § 802.
19 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.
20 10 U.S.C. § 906a(b)-(c) provides:
(continued...)
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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.”
The unauthorized creation, publication, sale or transfer of photographs or
sketches of vital defense installations or equipment as designated by the President is
20(...continued)
(b)(1) No person may be sentenced by court-martial to suffer death for an offense
under this section (article) unless--
(A) the members of the court-martial unanimously find at least one of the
aggravating factors set out in subsection (c); and
(B) the members unanimously determine that any extenuating or mitigating
circumstances are substantially outweighed by any aggravating circumstances,
including the aggravating factors set out in subsection (c).
(2) Findings under this subsection may be based on--
(A) evidence introduced on the issue of guilt or innocence;
(B) evidence introduced during the sentencing proceeding; or
(C) all such evidence.
(3) The accused shall be given broad latitude to present matters in extenuation and
mitigation.
(c) A sentence of death may be adjudged by a court-martial for an offense under
this section (article) only if the members unanimously find, beyond a reasonable
doubt, one or more of the following aggravating factors:
(1) The 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.
(2) In the commission of the offense, the accused knowingly created a grave risk of
substantial damage to the national security.
(3) In the commission of the offense, the accused knowingly created a grave risk of
death to another person.
(4) Any other factor that may be prescribed by the President by regulations under
section 836 of this title (article 36).
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prohibited by 18 U.S.C. §§ 795 and 797.21 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. § 798 by fine and/or imprisonment for not more than ten years.22 To
21 § 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.
(b) Whoever violates this section shall be fined under this title or imprisoned not more
than one year, or both.
§ 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, 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 of the military or naval post, camp, or station
concerned, 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.
22 § 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
(continued...)
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incur a penalty, the disclosure must be prejudicial to the safety or interests of the
United States or work to the benefit of any foreign government and to the detriment
of the United States. The provision applies only to information related to
cryptographic systems and information related to communications intelligence
specially designated by a U.S. government agency for “limited or restricted
dissemination or distribution.”23
18 U.S.C. § 641 punishes the theft or conversion of government property or
records for one’s own use or the use of another. While this section does not explicitly
prohibit disclosure of classified information, it has been used for that purpose.24
Violators may be fined or imprisoned for not more than ten 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.
18 U.S.C. § 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 and up to ten years’ prison
sentence, 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.”25
22(...continued)
(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 under this title or imprisoned not more than ten years, or both.
2318 U.S.C. § 798(b).
24
See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988)(photographs and reports were
tangible property of the government); United States v. Fowler, 932 F.2d 306 (4th Cir.
1991)(“information is a species of property and a thing of value” such that “conversion and
conveyance of governmental information can violate § 641,”citing United States v. Jeter, 775
F.2d 670, 680-82 (6th Cir. 1985)); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.
1979).
2518 U.S.C. § 952.
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18 U.S.C. § 1924 prohibits the unauthorized removal of classified material.26 The
provision imposes a fine of up to $1,000 and a prison term up to one year for
government officers or employees who knowingly take material classified pursuant
to government regulations with the intent of retaining the materials at an unauthorized
location.27
42 U.S.C. § 2274 punishes the unauthorized communication by anyone of
“Restricted Data,”28 or an attempt or conspiracy to communicate such data, by
imposing a fine of not more than $500,000 and maximum life sentence in prison, or
both, if done with the intent of injuring the United States or to secure an advantage
to any foreign nation.29 A disclosure, attempt to disclose or participation in a
conspiracy to disclose restricted data with the belief that such data will be utilized to
injure the United States or secure an advantage to a foreign nation is punishable by
imprisonment for no more than ten years or a fine of no more than $100,000, or
both.30 The disclosure of “Restricted Data” by an employee or contractor, past or
present, of the federal government to someone not authorized to receive it is
punishable by a fine of not more than $12,500.31
2618 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.
27
Id.
28The term “Restricted Data” is defined by the Atomic Energy Act of 1954 to include “all data
concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of
special nuclear material; or (3) the use of special nuclear material in the production of energy,
but shall not include data declassified or removed from the Restricted Data category pursuant
to [42 U.C.S. § 2162].” 42 U.C.S. § 2014(y).
2942 U.S.C. § 2274(a). Receipt or tampering with Restricted Data with like intent is
punishable in the same way under 42 U.S.C. §§ 2275 and 2276.
3042 U.S.C. § 2274(b).
3142 U.S.C. § 2277.
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50 U.S.C. § 421 provides for the protection of information concerning the
identity of covert intelligence agents.32 Any person authorized to know the identity
of such agents who intentionally discloses the identity of a covert agent is subject to
imprisonment for not more than ten years or a fine, or both.33 A person who learns
the identity of an agent through authorized access to classified information34 and
discloses the agent’s identity to someone not authorized to receive classified
information is subject to a fine or term of imprisonment not more than five years, or
both. A person who learns of the identity of a covert agent through a “pattern of
activities intended to identify and expose covert agents” and discloses the identity to
any individual not authorized access to classified information, with reason to believe
that such activities would impair U.S. foreign intelligence efforts, 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. An agent is not punishable
under this provision for revealing his or her own identity, and it is a defense to
prosecution if the United States has already publicly disclosed the identity of the
agent.35
50 U.S.C. § 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.36 It is
32 The Intelligence Identities and Protection Act of 1982, codified at 50 U.S.C. §§ 421-26.
33 50 U.S.C. § 421(a) provides:
(a) Whoever, having or having had authorized access to classified information that
identifies a covert agent, intentionally discloses any information identifying such covert
agent to any individual not authorized to receive classified information, knowing that the
information disclosed so identifies such covert agent and that the United States is taking
affirmative measures to conceal such covert agent's intelligence relationship to the
United States, shall be fined under title 18, United States Code, or imprisoned not more
than ten years, or both.
34“Classified Information” is defined in 50 U.S.C. § 426(1) as “information or material
designated and clearly marked or clearly represented, pursuant to the provisions of a statute
or Executive order (or a regulation or order issued pursuant to a statute or Executive order),
as requiring a specific degree of protection against unauthorized disclosure for reasons of
national security.”
35
See Lawrence P. Gottesman, Note,
The Intelligence Identities Protection Act of 1982: An
Assessment of the Constitutionality of Section 601(c), 49 BROOKLYN L. REV. 479, 483 - 485
(1983)(outlining the elements of an offense under 50 U.S.C. § 421).
36 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
(continued...)
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also unlawful for the representative or agent of the foreign government to receive
classified information.37 Violation of either of these provisions is punishable by a fine
of up to $10,000 or imprisonment for not more than 10 years.38 Violators are
thereafter prohibited from holding public office.39 Violators must forfeit all property
derived directly or indirectly from the offense and any property which was used or
intended to be used to facilitate the violation.40
Disclosure of a patent which has been placed under a secrecy order pursuant to
the Invention Secrecy Act of 195141 can lead to a fine of $10,000 or imprisonment for
up to two years, or both. Publication or disclosure of the invention must be willful
and with knowledge of the secrecy order to be punishable.42
Civil Penalties and Other Measures.
In addition to the criminal penalties outlined above, the executive branch
employs numerous means of deterring unauthorized disclosures by government
personnel using administrative measures based on terms of employment contracts.43
36(...continued)
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.
37 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.
3850 U.S.C. § 783(c).
39
Id.
4050 U.S.C. § 783(e).
41Codified at 35 U.S.C. § 181
et seq.
4235 U.S.C. § 186.
43
See DuVal,
supra note 11, at 597 (identifying administrative regulations as principal means
of enforcing secrecy procedures).
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The agency may impose disciplinary action or revoke a person’s security clearance.44
The revocation of a security clearance is usually not reviewable by the Merit System
Protection Board45 and may mean loss of government employment. Government
employees may be subject to other monetary penalties for disclosing classified
information.46 Violators of the Espionage Act and the Atomic Energy Act provisions
may be subject to loss of their retirement pay.47
Agencies also rely on contractual agreements with employees, who typically
must sign non-disclosure agreements prior to obtaining access to classified
information,48 sometimes agreeing to submit all materials which the employee desires
to publish to a review by the agency. The Supreme Court enforced such a contract
against a former employee of the Central Intelligence Agency, upholding the
government’s imposition of a constructive trust on the profits of a book the employee
sought to publish without first submitting it to CIA for review.49
In 1986, the Espionage Act was amended to provide for the forfeiture of any
property derived from or used in the commission of an offense.50 Violators of the
Atomic Energy Act may be subjected to a civil penalty of up to $100,000 for each
violation of Energy Department regulations regarding dissemination of unclassified
information about nuclear facilities.51
The government can also use injunctions to prevent disclosures of information.
The courts have generally upheld injunctions against former employees’ publishing
44
See, e.g., Exec. Order 12,958. Sanctions may include “reprimand, suspension without pay,
removal, ... loss or denial of access to classified information, or other sanctions in accordance
with applicable law and agency regulation.”
Id. at §5.7(c).
45
See Department of Navy v. Egan, 484 U.S. 518, 526-29 (1988). Federal courts may review
constitutional challenges based on the revocation of security clearance. Webster v. Doe, 486
U.S. 592 (1988).
46
See 42 U.S.C. § 2282(b) (providing for fine of up to $100,000 for violation of Department
of Energy security regulations).
475 U.C.S. § 8312 (2001)(listing violations of 18 U.S.C. §§ 793 & 798, 42 U.S.C. 2272-76,
and 50 U.S.C. 421, among those for which forfeiture of retirement pay or annuities may be
imposed).
48
See United States v. Marchetti, 466 F.2d 1309 (4th Cir.),
cert. denied, 409 U.S. 1063 (1972)
(enforcing contractual non-disclosure agreement by former employee regarding “secret
information touching upon the national defense and the conduct of foreign affairs” obtained
through employment with CIA).
49
See Snepp v. United States, 444 U.S. 507 (1980); s
ee also Alan E. Garfield,
Promises of
Silence: Contract Law and Freedom of Speech, 83 CORNELL L. REV. 261, 274 (1998)(noting
the remedy in
Snepp was enforced despite the agency’s stipulation that the book did not
contain any classified information).
50
See 18 U.S.C. §§ 793(h), 794(d), 798(d); Klein
, supra note 7, at
438-439.
5142 U.S.C. § 2168(b).
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information they learned through access to classified information.52 The Supreme
Court also upheld the State Department’s revocation of passports for overseas travel
by persons planning to expose U.S. covert intelligence agents, despite the fact that the
purpose was to disrupt U.S. intelligence activities rather than assist a foreign
government.53
Similarly, the government can enjoin publication of inventions when it is
determined that release of such information is detrimental to the national security. If
an inventor files a patent application for an invention the Commissioner of Patents
believes should not be made public, the Commissioner may place a secrecy order on
the patent and may establish conditions for granting a patent, or may withhold grant
of a patent as long as the “national interest requires [it].”54 In addition to criminal
penalties cited previously, in the case of an unauthorized disclosure or foreign filing
of the patent information, the Patent Office will deem the invention to be ‘abandoned’,
which means a forfeiture by the applicant, his successors or assigns of all claims
against the United States based on the invention.55
The government has had less success trying to enjoin the media from disclosing
classified information. Most famously, the government failed to enjoin publication of
the Pentagon Papers by a newspaper, even though the information was clearly
classified and had been stolen by someone with access to it.56 In that case, the
Supreme Court set very high standards for imposing prior restraint on the press. Yet
in another case, the government was able to enjoin a newspaper from printing
information about the design of an atomic bomb, even though the information did not
originate from classified material and the author’s purpose was not subversive.57
52
See United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) (granting an injunction to
prevent a former CIA agent from publishing a book disclosing government secrets).
53
See Haig v. Agee, 453 U.S. 280 (1981).
5435 U.S.C. § 181. The determination must be renewed on a yearly basis.
5535 U.S.C. § 182.
56United States v. New York Times, 403 U.S. 713 (1971).
See Klein,
supra note 7, at 439-40.
57
See DuVal,
supra note 11, at 604 (describing Progressive magazine article at issue in United
States v. Progressive, Inc., 467 F.Supp. 990 (W.D. Wis. 1979)); Klein,
supra note 7, at 435
(noting disparity between rulings in
New York Times and
Progressive). The information the
Progressive sought to publish was related to the building of a nuclear bomb and was thus
classified as “Restricted Data” under the Atomic Energy Act, even though the information had
been compiled from unclassified, publicly available documents. One reason for the different
outcomes in the two cases is that the Atomic Energy Act contains statutory authorization for
the Attorney General to seek injunction.
See 42 U.S.C. § 2280. In
New York Times, a
majority of Justices took into account the fact that Congress had not authorized an injunction.
403 U.S. at 718 (Black, J., concurring);
id. at 721-22 (Douglas, J., concurring);
id. at 730
(Stewart, J., concurring);
id. at 731-40 (White, J., concurring);
id at 742 (Marshall, J.,
concurring).
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H.R. 2943 and Current Law.
The current laws for protecting classified information have been criticized as a
patchwork of provisions that are not consistent and do not cover all the information
the government legitimately needs to protect.58 Certain information is protected
regardless of whether it belongs to the government or is subject to normal
classification. Technical and scientific information, for example, can be restricted
regardless of source.59 Information related to “the national defense” is protected even
though no harm to the national security is intended or is likely to be caused through
its disclosure. However, nonmilitary information with the potential to cause serious
damage to the national security is only protected from willful disclosure with the
specific intent to harm the national interest,60 or with the knowledge that such harm
could occur.61
The new 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. It would be the first law to penalize disclosure of information to non-foreign
entities solely because it is classified, without a more specific definition of the type of
information covered.62
Constitutional Issues
The First Amendment to the U.S. Constitution provides: “Congress shall make
no law . . . abridging the freedom of speech, or of the press . . . .” Despite this
absolute language, the Supreme Court has held that “[t]he Government may . . .
regulate the content of constitutionally protected speech in order to promote a
compelling interest if it chooses the least restrictive means to further the articulated
interest.”63 The constitutionality of section 304, therefore, if enacted and challenged
in court, will depend upon whether the government can demonstrate that the statute
promotes a compelling interest and does so by the least restrictive means available.
58
See E.E.B. and K.E.M., Note,
Plugging the Leak: The Case for a Legislative Resolution
of the Conflict between the Demands of Secrecy and the Need for Open Government, 71 VA.
L. REV. 801, 811 (1985).
59
See id. at 814.
60
See id. at 815.
61
See United States v. Morison, 844 F.2d 1057 (1988).
6218 USCS § 1924 prohibits removal of government-owned or controlled classified
information by a government employee without authorization. 50 U.S.C. § 783 covers only
information classified by the President or an executive agency transmitted by a government
employee to a foreign entity.
63Sable Communications of California v. Federal Communications Commission, 492 U.S.
115, 126 (1989).
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First Amendment Principles.
Compelling Interest.
Protection of the national security from external threat is without doubt a
compelling government interest.64 Particularly during time of war or heightened risk
of hostilities, it has long been accepted that the government has a compelling need to
suppress certain types of speech.65
Speech likely to incite immediate violence, for
example, may be suppressed.66 Speech that would give military advantage to a foreign
enemy is also susceptible to government regulation.67
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.68 Actual damage need not be
proved, but potential damage must be more than merely speculative and incidental.69
Promotion of that Interest.
In addition to showing that the stated interest to be served by the statute is
compelling, the government must also show that the law actually serves that end. If
the accused can show that the statute serves an unrelated purpose, for example, to
silence criticism of certain government policies or to manipulate public opinion, a
judge might be prepared to invalidate the statute.70 A challenge could be brought
against section 304 charging that, under certain circumstances, the government uses
64
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., at 509;
accord Cole v. Young, 351 U.S. 536, 546 (1956)).
65See Schenck v. United States, 249 U.S. 47 (1919) (formulating “clear and present danger”
test).
66Brandenburg v. Ohio, 395 U.S. 444 (1969).
67 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.”).
68“National Security” is defined as national defense and foreign relations.
See Exec.Order No.
12,958, 60 Fed. Reg.19,825 (Apr. 17, 1995).
69
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)).
70 In all likelihood, such a defendant would have to prove not only that such an impermissible
use is possible, but also that it is pertinent to the particular case.
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its classification procedures to suppress certain speech. Such a challenge might
evolve in a case of alleged selected release of information on the part of the
government related to sensitive government programs. If the government releases
some positive results of a secret weapons program while suppressing negative results,
for example, a person prosecuted for releasing negative information could challenge
the statute by arguing that his prosecution is related to the negative content of his
speech rather than to valid concerns about the damage it might cause. If he can show
that those who disclose sensitive information that tends to support the
administration’s position are not prosecuted, while those who disclose truthful
information that is useful to its opponents are prosecuted, he might be able to
persuade a court that the statute as enforced is an unconstitutional restriction of
speech based on impermissible content-related interests.71
Another argument along these lines would note that a statute that prohibits
disclosure of classified information, but fails to prohibit the disclosure of sensitive but
unclassified information, leaves significant vulnerabilities, calling into question the
relationship between the law’s means and ends. Also, a defendant might argue that
the statute is underinclusive because the conduct is only punishable if perpetrated by
someone with authorized access to the classified information. Arguably, if the
disclosure of the information is damaging, it would be irrelevant how or by whom it
was disclosed.72 Lastly, a person challenging the statute could argue that the statute
does not sufficiently address circumstances in which the potential damage to the
national security is outweighed by other considerations.
Least Restrictive Means.
To survive a constitutional challenge, the law must be narrowly drawn to affect
only the type of speech that the government has a compelling need to suppress.73 If
the statute reaches speech that the government has no sufficiently compelling need to
regulate, the statute will be subject to attack due to overbreadth. A law is overly
broad if it prohibits more speech than is necessary to achieve its purpose. If a
defendant can show that a statute regulating speech is “substantially overbroad,” he
may challenge its validity on its face.74 If the law is found to be substantially
overbroad, a court will invalidate the law even if the defendant’s conduct falls within
the ambit of conduct the government may legitimately prohibit. For this reason, the
statute might be contested as overbroad by virtue of its reliance on the Executive’s
classification scheme. If a challenger were able to show that agencies classify
71
But see Snepp v. United States, 444 U.S. 507 (1980)(Stevens, J., dissenting). Snepp’s
assertion of selective enforcement against his book based on its critical treatment of the CIA
failed to persuade the Supreme Court that any violation of the First Amendment had occurred.
See Judith Schenk Koffler and Bennett L. Gershman,
National Security and Civil Liberties:
The New Seditious Libel, 69 CORNELL L. REV. 816, 847 (1984).
72On the other hand, the government has a greater interest in restricting the speech of its
employees than it does with respect to the public at large. Pickering v. Board of Education,
391 U.S. 563, 568 (1968).
73
See E.E.B. and K.E.M.,
supra note 58, at 849.
74Broadrick v. Oklahoma, 413 U.S. 601 (1973).
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information that it is unnecessary to keep secret, he could argue that the statute is
invalid as overly broad because it punishes protected speech that poses no danger to
the national security.
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,75 it does not necessarily follow that government classification by itself will be
dispositive of the issue in the context of a criminal trial. In other words, courts may
interpret the language of the proposed statute to impose on the government the
burden of showing that the disclosure at issue has (or had at the time of its
unauthorized release) the potential of harming national security.76 Government
classification will likely serve as strong evidence to support the contention, but it is
unlikely the accused will be foreclosed entirely from bringing a First Amendment
challenge to the government’s assertion that potential damage to the national security
is likely.
Information may be properly classified in the technical sense – that is, the
appropriate authority determined it met specific criteria for classification of material
that could cause the requisite level of damage to the United States if it falls into the
wrong hands, and yet for other reasons, that information could be judged to pose no
realistic threat. For example, a defendant could argue that the information she is
charged with releasing is already widely available in public sources and therefore has
already caused any damage it was capable of causing. Or she may argue that the
information was properly classified at the time of its creation but is now so old that
no foreign entity could possibly benefit from learning about it. A defendant might
even argue that limited release unlikely to cause direct and imminent injury to the
United States was necessary to avert greater harm to life and limb of innocent
persons.
75Exec. Order No. 12,958, 60 Fed. Reg.19,825 (Apr. 17, 1995)(“Classified National Security
Information”).
Sec. 1.3 defines three levels of classification:
(1) "Top Secret" shall be applied to information, the unauthorized disclosure of which
reasonably could be expected to cause
exceptionally grave damage to the national security
that the original classification authority is able to identify or describe.
(2) "Secret" shall be applied to information, the unauthorized disclosure of which
reasonably could be expected to cause
serious damage to the national security that the
original classification authority is able to identify or describe.
(3) "Confidential" shall be applied to information, the unauthorized disclosure of which
reasonably could be expected to cause
damage to the national security that the original
classification authority is able to identify or describe.
(Emphasis added).
76The Committee Report suggests that
proper classification by itself should discharge the
government’s burden. H.R. REP. NO. 106-969 at 44 (2000).
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Therefore, one issue that is almost certain to arise, if this statute is enacted, is the
extent to which the judiciary should defer to the judgment of the executive in
determining whether an unauthorized disclosure of classified information has the
potential to cause harm to the national security. 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.77 In the context
of a criminal trial, especially in a case with apparent First Amendment implications,
courts may be more willing to engage in an evaluation of the propriety of a
classification decision than they would in a case of citizens seeking access to
information under the Freedom of Information Act (FOIA).78
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,79 it has seemed to accept without
much discussion the government’s assertion that the material in question is damaging.
Lower courts have interpreted 18 U.S.C. § 798, which criminalizes the unauthorized
release of specific kinds of classified information,80 to have no requirement that the
government prove that the classification was proper or personally approved by the
President.81 It is unlikely that a defendant’s bare assertion that information is unlikely
to damage 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.82
Snepp v. United States83 affirmed the government’s ability to enforce contractual
non-disclosure agreements against employees and former employees who had had
access to classified information. The Supreme Court allowed the government to
77
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.”).
785 U.S.C. § 552(b)(1) exempts classified information from release to requesters.
79
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).
8018 U.S.C. § 798 provides in pertinent part:
“(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes
available to an unauthorized person, . . . any classified information . . . (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 . . . for cryptographic or communication
intelligence purposes; . . . (s)hall be fined . . . or imprisoned . . .”.
81
See, e.g. United States v. Boyce, 594 F.2d 1246, 1251 (9th Cir. 1979) (“Under section 798,
the propriety of the classification is irrelevant. The fact of classification of a document or
documents is enough to satisfy the classification element of the offense.”).
82
See United States v. Dedeyan, 594 F.2d 36, 39 (4th Cir. 1978).
83444 U.S. 507 (1980).
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impose a constructive trust on the earnings from Frank Snepp’s book about the CIA
because he had failed to submit it to the CIA for prepublication review, as he had
agreed to do by signing an employment agreement. Although the CIA stipulated to
the fact that the book contained no classified information,84 the Court accepted the
finding that the book caused “irreparable harm and loss” to the American intelligence
services.85 The Court suggested that the CIA did not need a signed agreement in
order to protect its interests by subjecting its former employees to prepublication
review and possible censorship.86
Haig v. Agee87 was a First Amendment challenge to the government’s ability to
revoke a citizen’s passport because of his intent to disclose classified information.
Philip Agee was a former CIA agent who engaged in a “campaign to fight the United
States CIA,” which included publishing names of CIA operatives around the world.
In order to put a stop to this activity, the Department of State revoked his passport.
Agee challenged that action as an impermissible burden on his freedom to travel and
an effort to penalize his exercise of free speech to criticize the government.88 The
Supreme Court disagreed, finding the passport regulations constitutional because they
may be applied “only in cases involving likelihood of ‘serious damage’ to national
security or foreign policy.”89
United States v. Morison90 is significant in that it represents the first case in
which a person was convicted for selling classified documents to the media. Morison
argued that the espionage statutes did not apply to his conduct because he could not
have had the requisite intent to commit espionage. The Fourth Circuit rejected his
appeal, finding the intent to sell photographs that he clearly knew to be classified
sufficient to satisfy the scienter requirement under 18 U.S.C. § 793. The definition
of “relating to the national defense” was not overbroad because the jury had been
instructed that the government had the burden of showing that the information was
so related.91
84
Id. at 511.
85
Id. at 512.
86
Id. at 509, n3 (“Moreover, this Court's cases make clear that - even in the absence of an
express agreement - the CIA could have acted to protect substantial government interests by
imposing reasonable restrictions on employee activities that in other contexts might be
protected by the First Amendment”)(citations omitted).
87453 U.S. 280 (1981).
88
Id. at 305.
89
Id. at 305-06.
90844 F.2d 1057 (4th Cir.),
cert. denied, 488 U.S. 908 (1988).
91
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).
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The government’s ability to protect sensitive information was explored in the
context of prior restraints of the media in the
Pentagon Papers Case.92 In a
per
curiam opinion accompanied by nine concurring or dissenting opinions, the 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. A majority of the justices indicated in
dicta, however, that
the newspapers – as well as the former government employee who leaked the
documents to the press – could be prosecuted under the Espionage Act.93
If strictly construed to mean that the government, in order to prove its
compelling need to suppress disclosure of classified information, need only show that
the proper procedures were followed in applying the classification, the proposed
legislation would raise concerns of overbreadth under the First Amendment.
However, for precisely this reason it may not be so strictly construed.94
Due Process.
A statute is unconstitutionally vague if it does not permit the ordinary person to
determine with reasonable certainty whether his conduct is criminally punishable.
Therefore, a statute prohibiting the unauthorized disclosure of classified information
must be sufficiently clear to allow a reasonable person to know what conduct is
prohibited. Where First Amendment rights are implicated, the concern that a vague
statute will have a chilling effect on speech not intended to be covered may make that
law particularly vulnerable to judicial invalidation.95
The Espionage Act of 1917 has been challenged for vagueness without success.
There have been very few prosecutions for disclosing information related to the
national defense. The following elements are necessary to prove an unauthorized
disclosure offense under 18 U.S.C. § 793:
1.
The information or material disclosed must be related to the national
defense, that is, pertaining to any matters “directly and reasonably
connected with the defense of our nation against its enemies” that
“would be potentially damaging to the United States, or might be useful
to an enemy of the United States” and are “closely held” in that the
relevant government agency has sought to keep them from the public
92New York Times Co. v. United States, 403 U.S. 713 (1971).
93
See David Topol, Note,
United States v. Morison: A Threat to the First Amendment Right
to Publish Security Information, 43 S.C. L. REV. 581, 586 (noting that six of the nine
Pentagon Papers justices suggested that the government could convict the newspapers under
the Espionage Act even though it could not enjoin them from printing the documents).
94
See, e.g. United States v. X-Citement Video, 513 U.S. 64 (1994).
95
See Aptheker v. Secretary of State, 378 U.S. 500 (1964); United States v. Robel, 389 U.S.
258 (1967); Smith v. Goguen, 415 U.S. 566, 573 (1974); Village of Shaumberg v. Citizens
for a Better Environment, 444 U.S. 620 (1980).
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generally and that these items have not been made public and are not
available to the general public.96
2.
The disclosure must be made with knowledge that such disclosure is not
authorized.
3.
There must be an “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.”
There does not appear to be a requirement that the disclosure cause actual
harm.97 An evil motive is not necessary to satisfy the scienter requirement; the
willfulness prong is satisfied by the knowledge that the information may be used to
the injury of the United States.98 It is irrelevant whether the information was passed
to a
friendly foreign entity.99 A patriotic motive will not likely change the outcome.100
Sections 793 and 794 (communication of certain information to a foreign entity)
have survived challenges for vagueness, but only because jury instructions properly
established the elements of the crimes, including the scienter requirement and a
definition of “national defense” that includes potential damage in case of unauthorized
release. The Supreme Court case relied upon for these standards is
Gorin v. United
States,101 which interpreted the predecessor statutes to §§ 793 and 794.
Gorin was a
“classic case” of espionage and there was no challenge based on First Amendment
rights. The Court agreed with the government that the term “national defense” was
not vague; it was satisfied that it “is a generic concept of broad connotations, referring
to the military and naval establishments and the related activities of national
preparedness.”102 Whether information was “related to the national defense” was a
question for the jury to decide,103 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.”104 As long as the jury was properly instructed that information
not likely to cause damage was not “related to the national defense” for the purpose
of the statute, the term was not unconstitutionally vague.
No other challenge to a conviction under the Espionage Act has advanced to the
Supreme Court.
96
See United States v. Morison, 622 F. Supp. 1009, 1010 (D. Md.1985).
97
See United States v. Morison, 844 F.2d 1057, 1074 (4th Cir. 1988).
98
Id. at 1073.
99Gorin v. United States
, 312 U.S. 19, 29 (1941).
100United States v. Morison, 622 F.Supp 1009 (D. Md. 1985).
101 312 U.S. 19 (1941).
102
Id. at 28.
103
Id. at 32.
104
Id. at 31.
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The definition of the term “classified information” in the proposed statute may
invite challenge on the grounds that it is vague. The definition of “classified” under
the section is ambiguous, as it includes the words it is intended to define. It applies
to information “classified” pursuant to statutes and executive orders as requiring
protection from unauthorized dissemination for reasons of national security. Clearly,
it applies to the national security designations under Executive Order 12,958.105 It
probably applies to “Restricted Data” under title 42, the dissemination of which is
already punishable. It could be construed to apply to the “unclassified” information
that is protected under 42 U.S.C. §§ 2167-68, because such information may be
regulated to prohibit unauthorized dissemination if the Secretary of Energy determines
such dissemination “could reasonably be expected to result in a significant adverse
effect on ... the common defense and security ....”106 Section 304 also appears to
apply to classified information that is not owned or controlled by the government, and
does not appear to make an exception for information that was properly classified but
has since been declassified, or should be declassified according to agency rules.
Classified information includes “information or material properly classified and
clearly marked or represented, or that the person knows or has reason to believe has
been properly classified by appropriate authorities, pursuant to the provisions of a
statute or Executive order, as requiring protection against unauthorized disclosure for
reasons of national security.” Whether a government employee has reason to believe
certain material “has been properly classified” may under some circumstances be
difficult to establish. Government officials sometimes may be required to guess
whether a piece of information falls under an agency’s classification guidelines, for
instance, if it appears in some context without proper classification markings.
Classification guidelines are to some extent discretionary, so that not all
information meeting the criteria for classification will in fact be classified. Information
that is classified in one document should be marked as classified in every document
in which it appears, but references to classified information may not always be
properly marked, or might be presented in such a way that gives rise to questions
about whether it should be classified in its new form. Documents that contain secrets
may also contain unclassified information. Secret information may be spoken and thus
carry no clear classification markings to give notice to the recipient. Information may
require classification under one agency’s guidelines but remain unprotected under the
guidelines of another agency. These factors arguably present vagueness issues because
of the danger of chilling protected speech about unclassified matter. Some critics
contend that employees who are unsure whether information is or should be classified
may keep silent rather than risk disclosing any fact they could be deemed to have had
“reason to believe” is or has been properly classified.
10560 Fed. Reg.19,825 (Apr. 17, 1995)(defining levels of classification).
See supra,note 75.
10642 U.S.C. § 2168(a)(4)(B).
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The language “for reasons of national security” invites challenge because the
term “national security” is arguably so broad as to invite claims of vagueness.107
However, a review of pertinent case law reveals that courts do not seem to have been
overly troubled by the breadth or ambiguity of the term.108
The fact that the proposed law applies only to government employees or “other
person[s] with access to classified information” may help to immunize it from claims
of vagueness, since presumably those with access to classified information have a
greater understanding of the applicable classification rules109 and have agreed to abide
by them.110
It should probably be remembered that challenges to the statute as enforced,
even if successful, are unlikely to render the statute unconstitutional on its face. If a
statute can be interpreted in such a way as to avoid unconstitutional results, courts
will interpret it that way.111 Government employees who clearly understand the
damaging potential of information and leak it anyway will not likely succeed in an
attempt to get the law declared unconstitutional based on the possible chilling effect
the statute may have on hypothetical violators. However, due process will require
that any defendant faced with a criminal penalty be allowed to present credible
evidence that the law is vague or that the government does not have a compelling
need to suppress the speech that forms the basis for the charge against him.
Separation of Powers.
Some concern has been raised in the media with respect to the proposed
legislation, i.e. that allowing the executive branch to in effect both promulgate and
enforce criminal statutes amounts to a violation of the constitutional scheme for
making laws. Because the proposed statute ratifies and enforces the Executive Order
governing classified information without providing standards to guide the
classification process, it may be argued by some that the Congress is delegating its
lawmaking authority entirely to the executive branch. It is urged that, particularly
where a statute imposes a criminal penalty on violators, a strong system of checks and
balances is vital to ensuring fundamental liberties.
There is little precedent to support invalidating the proposed legislation on the
basis of an alleged violation of separation of powers. The Constitution contains no
explicit separation of powers doctrine; the theory derives from the first three Articles
107
See E.E.B. and K.E.M.,
supra note 58, at 852 (citing McGehee v. Casey, 718 F.2d 1137
(D.C. Cir. 1983)).
108
See Gorin v. United States, 312 U.S. 19, 27 (1941) (finding in the term “national defense”
no “uncertainty which deprives a person of the ability to predetermine whether a contemplated
action is criminal under the provisions of this law”); United States v. Dedeyan, 594 F.2d 36,
39-40 (4th Cir. 1978) (finding that delimitation in jury instruction removed any vagueness)
(citing
Gorin); McGehee v. Casey, 718 F.2d 1137 (D.C. Cir. 1983).
109Scarbeck v. United States, 317 F.2d 546, 548 (D.C. Cir. 1962).
110Snepp v. United States, 444 U.S. 507 (1980)(per curiam).
111United States v. X-Citement Video, 513 U.S. 64, 68-69 (1994).
CRS-26
and their allocation of powers among the three branches of government. The related
concept of checks and balances reflects wisdom on the part of the Framers that the
system would be stronger if each of the branches had a role in countermanding or
approving the actions of the other two. In practice, the executive and judicial
branches have each been permitted to exercise powers that are seemingly legislative
in nature, provided such powers are delegated by Congress.112
Congress may delegate broad responsibilities to the President so long as it lays
down an “intelligible principle” to guide the rule-making authority.113 Opponents of
the proposed legislation may argue that the statute does not contain an intelligible
principle because it relies on principles established by Executive order that could
change without congressional influence. However, the Supreme Court has long
approved delegations accompanied by very general legislative guidance.114 That
information must be properly classified “pursuant to the provisions of a statute or
Executive order, as requiring protection against unauthorized disclosure for reasons
of national security” arguably serves as sufficient guidance for delegation purposes.
The executive branch has long been recognized as holding especially strong sway
in the realm of foreign affairs and national defense. The courts have accepted that the
President has the power to classify information vital to national security as a part of
his powers as Commander-in-Chief.115 The Court has honored Congress’ desire to
give deference to the Executive in matters of classification.116 In light of this power,
and evidence that Congress has approved of its use and supplemented it through
various statutes, it is highly unlikely that a challenge based on a separation of powers
claim would succeed.
112For example, the so-called independent regulatory agencies may carry out functions that are
executive (law enforcement), legislative (rulemaking) or judicial (adjudicatory) in nature.
113
See Touby v. United States, 500 U.S. 160 (1990) (citing Lichter v. United States, 334 U.S.
742 (1948).
114
See Touby at 165 (finding “imminent hazard to the public safety” standard to be intelligible
for the purposes of criminal sanctions).
115Department of the Navy v. Egan, 484 U.S. 518 (1988).
116EPA v. Mink, 410 U.S. 73 (1973).
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