Elsea's brief indicates that -
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 have focused attention on whether such publication violates US 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), 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.Elsea comments that -
This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction 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) as well as some previous efforts to criminalize the unauthorized disclosure of classified information.
... 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. 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. Publication is not expressly proscribed in 18 U.S.C. Section 794(a), either, although it is possible that publishing covered information in the media could be construed as an “indirect” transmission of such information to a foreign party, as long as the intent that the information reach said party can be demonstrated.In identifying post-Wikileaks measures she comments that -
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,”83 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.
The Securing Human Intelligence and Enforcing Lawful Dissemination Act (“SHIELD Act”), S. 315, introduced by Senator Ensign on February 10, 2011, and a companion bill in the House, H.R. 703, 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.Elsea concludes that -
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 “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.
Senator Cardin introduced the Espionage Statutes Modernization Act of 2010, S. 355, on February 15, 2011. 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 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.
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. The Supreme Court has stated, however, that the question remains open whether the publication of unlawfully obtained information by the media can be punished consistent with the First Amendment. Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the 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.