Congressional Research Service, Criminal Prohibitions on the Publication of Classified Defense Information, (2013) .pdf
This Congressional Research Service study contains an in-dept review of Sec. 793 and related Espionage Act cases, but contains only a brief reference to case law under the lesser charge of 18 U.S.C. §1924. Perhaps, you can fill us in on 1924 cases. One would imagine, as in several of the cases discussed, that any actual prosecution would involve §1924, at least as a lesser, included offense to which the defendant might plead down.
John Kiriakou, Indicted under Espionage Act, 763(e), plead to lesser charge. (Source, [Congressional Research Service, Criminal Prohibitions on the Publication of Classified Defense Information, (2013)] .pdf
1) A former CIA officer, John Kiriakou, was charged for the unauthorized disclosure of classified
information to a journalist. Because the disclosures were alleged to have included the identities of
covert CIA employees, he was also charged under the rarely used Intelligence Identities
Protection Act.56 After the judge rejected his Espionage Act defense based on the lack of intent to
harm the United States or give advantage to a foreign nation,57 Mr. Kiriakou pleaded guilty to
violating the Intelligence Identities Protection Act.58
ftn. 57 United States v. Kiriakou, 2012 WL 4903319 (E.D. Va. October 16, 2012) (holding that the scienter requirement for
violating the Espionage Act by disclosing intangible information requires the government to establish only that the
possessor of the information had reason to believe that the information could be used to the injury of the United States
or the advantage of any foreign nation).
68 The government must demonstrate that disclosure of a document is at least “potentially damaging” to the United
States or advantageous to a foreign government. See United States v. Morison, 844 F.2d 1057, 1072 (4th Cir.), cert.
denied, 488 U.S. (1988)(upholding conviction under 18 U.S.C. §793 for delivery of classified photographs to
publisher). Whether the information is “related to the national defense” under this meaning is a question of fact for the
jury to decide. Id. at 1073.At least one judge has held that in the case of a disclosure of intangible information, the
government needs to prove only that the defendant has reason to believe that such information is potentially damaging,
which, in the case of a person with access to classified information, can largely be inferred from the fact that
information is classified. See United States v. Kiriakou, 2012 WL 4903319 at *1 (E.D. Va. October 16, 2012) (scienter
requirement heightened in the case of disclosure of intangible national defense information); id. at *3 (noting that
defendant was a “government employee trained in the classification system who could appreciate the significance of
the information he allegedly disclosed”).
69 See Gorin v. United States, 312, U.S. 9, 27-28 (1941) (“Where there is no occasion for secrecy, as with reports
relating to national defense, published by authority of Congress or the military departments, there can, of course, in all
likelihood be no reasonable intent to give an advantage to a foreign government.”). While Gorin dealt with a violation
that required reason to believe materials obtained or transmitted were to be used to harm the United States or benefit a
foreign nation, it seems likely that the public nature of information would also negate a reason to believe that its
disclosure could harm U.S. national security for the purposes of 18 U.S.C. §793(d-e).
Most recently, Edward Snowden, a former contractor employee working as a computer system
administrator at an NSA facility in Hawaii, was charged in connection with leaking top secret
documents related to certain NSA programs to the Guardian (UK) and the Washington Post.59 He
permitted the newspapers to publish his name, but fled to Hong Kong before he could be takeninto custody. He is reportedly seeking asylum in Ecuador.60 The criminal complaint against him
charges two violations of the Espionage Act and theft of government property.61
. . .
Application of the Espionage Act to persons who do not hold a position of trust with the
government, outside of the classic espionage scenario (in which an agent of a foreign government
delivers damaging information to such hostile government), has been controversial. The only
known case of that type involved two pro-Israel lobbyists in Washington, Steven J. Rosen and
Keith Weissman, associated with the American Israel Public Affairs Committee (AIPAC), who
were indicted in 2005 for conspiracy to disclose national security secrets to unauthorized
individuals, including Israeli officials, other AIPAC personnel, and a reporter for the Washington
Post.109 Their part in the conspiracy amounted to receiving information from government
employees with knowledge that the employees were not authorized to disclose it.110 The
prosecution was criticized for effectively “criminalizing the exchange of information,”111 based in
part on the government’s theory that the defendants were guilty of solicitation of classified
information because they inquired into matters they knew their government informant was not
permitted to discuss, something that many journalists consider to be an ordinary part of their
job.112 Charges were eventually dropped, reportedly due to a judge’s ruling regarding the
government’s burden of proving the requisite intent and concerns that classified information
would have to be disclosed at trial.113 With respect to the intent requirement, the judge interpreted
the term “willfully” in connection with the phrase “reason to believe could be used to the injury
of the United States” to require that the prosecution must prove that the defendant disclosed the
information “with a bad faith purpose to either harm the United States or to aid a foreign
government.”114 Later courts confronting the intent issue have differentiated this case to conclude
that the “reason to believe” standard does not require an intent to do harm.115
Ftns. 109 See United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006); Jerry Markon, U.S. Drops Case Against Ex-
Lobbyists, WASH. POST, May 2, 2009, at A1 (stating the case is the first prosecution under the Espionage Act against
civilians not employed by the government).
110 See William E. Lee, Deep Background: Journalists, Sources, and the Perils of Leaking, 57 AM. U. L. REV. 1453,
1519 (2007) (opining that “the conspiracy charge especially threatens reporter-source transactions where the reporter
promises not to disclose the identity of the source”).
111 Time to Call It Quits, WASH. POST, March 11, 2009 (editorial urging Attorney General to drop charges).
112 See William E. Lee, Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes, 36 AM. J. CRIM.
L. 129, 132-34 (2009). The solicitation theory relied on a 2008 Supreme Court case finding that solicitation of an
illegal transaction is not speech deserving of First Amendment protection. United States v. Williams, 553 U.S. 285
(2008). See id. at 133 (citing Brief of the United States at 43-44, United States v. Rosen, 557 F.3d 192 (4th Cir. 2008)
(No. 08-4358)). Williams had to do with solicitation of child pornography, but Justice Scalia posed as a rhetorical
question whether Congress could criminalize solicitation of information thought to be covered by the Espionage Act:
“Is Congress prohibited from punishing those who attempt to acquire what they believe to be national-security
documents, but which are actually fakes? To ask is to answer.” Williams at 304.
113 See Markon, supra footnote 109 (quoting Dana J. Boente, the acting U.S. attorney in Alexandria, VA, where the
trial was scheduled to take place). The judge found the scienter requirement of 18 U.S.C. §793 to require that the
defendants must have reason to believe the communication of the information at issue “could be used to the injury of
the United States or to the advantage of any foreign nation.” 445 F. Supp. 2d at 639. Moreover, the judge limited the
definition of “information related to the national defense” to information that is “potentially damaging to the United
States or ... useful to an enemy of the United States.” Id. (citing United States v. Morison, 844 F.2d 1057, 1084 (4th Cir.
1988) (Wilkinson, J., concurring)).
114 United States v. Rosen, 445 F. Supp. 2d 602, 625 (E.D. Va. 2006).
115 See United States v. Drake, 818 F. Supp. 2d 909, 916 (D. Md. 2011) (distinguishing intent requirements between
disclosures involving tangible documents and those involving intangible information); United States v. Kiriakou, 2012
WL 4903319 at *3-5 (E.D. Va. October 16, 2012) (surveying case law and noting that 4th Cir. interlocutory appeal in
the Rosen case cast doubt on the district judge’s interpretation).
151 See, e.g., United States v. Morison, 844 F.2d 1057, 1086 (4th Cir. 1988) (Phillips, J., concurring) (“… I assume we
reaffirm today, that notwithstanding information may have been classified, the government must still be required to
prove that it was in fact ‘potentially damaging ... or useful,’ i.e., that the fact of classification is merely probative, not
conclusive, on that issue, though it must be conclusive on the question of authority to possess or receive the
information. This must be so to avoid converting the Espionage Act into the simple Government Secrets Act which
Congress has refused to enact.”) (emphasis in original).
152 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).
Other Statutes
18 U.S.C. Section 1030(a)(1) punishes the willful retention, communication, or transmission, etc.,
of classified information retrieved by means of knowingly accessing a computer without (or in
excess of) authorization, with reason to believe that such information “could be used to the injury
of the United States, or to the advantage of any foreign nation.”
. . .
18 U.S.C. Section 641 punishes the theft or conversion of government property or records for
one’s own use or the use of another. While this section does not explicitly prohibit disclosure of
classified information, it has been used to prosecute “leakers.”87 Violators may be fined,
imprisoned for not more than 10 years, or both, unless the value of the property does not exceed
the sum of $100, in which case the maximum prison term is one year. The statute also covers
knowing receipt or retention of stolen or converted property with the intent to convert it to the
recipient’s own use. It does not appear to have been used to prosecute any recipients of classified
information even where the original discloser was charged under the statute.
A former National Security Agency (NSA) official,
Thomas A. Drake, recently agreed to plead guilty to exceeding authorized use of a government
computer in violation of 18 U.S.C. Section 1030(a)(2)(B) (a misdemeanor), after the government
dropped more serious charges under the Espionage Act, among other offenses.40
A guilty plea was also secured in a case against an FBI contract linguist accused of providing
secret documents to a blogger.44 The defendant, Shamai Kedem Leibowitz, was sentenced to 20
months in prison for violation of 18 U.S.C. Section 798 by passing five documents classified at
the “secret” level in relation to communications intelligence.45
Sec. 1924
18 U.S.C. Section 1924 prohibits the unauthorized removal of classified material by government
employees, contractors, and consultants who come into possession of the material by virtue of
their employment by the government.91 The provision imposes a fine of up to $1,000 and a prison
term up to one year for offenders who knowingly remove material classified pursuant to
government regulations concerning the national defense or foreign relations of the United States,
with the intent of retaining the materials at an unauthorized location.92
The removal of classified material concerning foreign relations with
the intent to store them at an unauthorized location is a misdemeanor under 18 U.S.C. Section
1924, which also applies only to U.S. government employees.
50 U.S.C. Section 783 penalizes government officers or employees who, without proper authority,
communicate classified information to a person whom the employee has reason to suspect is an
agent or representative of a foreign government.94 It is also unlawful for the representative or
agent of the foreign government to receive classified information.95 Violation of either of these
provisions is punishable by a fine of up to $10,000 or imprisonment for not more than 10 years.96
Violators are thereafter prohibited from holding federal public office.97 Violators must forfeit all
property derived directly or indirectly from the offense and any property that was used or
intended to be used to facilitate the violation.98
, they are not classified. There has been some confusion over this.
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