These emails were not retroactively classified by the State
Department; rather these emails contained classified information when they were generated
and, according to IC classification officials, that information remains classified today. This
classified information should never have been transmitted via an unclassified personal system.

Clinton and her team have made a point of not describing the FBI's work as an "investigation," but alternately as a "security review" or "security inquiry." They've also noted that the issue was referred to the FBI not as a criminal matter but as an intelligence breach.

However, in response to a question Wednesday, Comey said he wasn't familiar with the term "security inquiry" that Clinton and her aides have used. The FBI chief said he considers the work agents are doing to be an "investigation."

"It's in our name. I'm not familiar with the term 'security inquiry','" the director said.

Read more: http://www.politico.com/story/2016/05/hillary-clinton-email-investigation-fbi-james-comey-223071#ixzz49htXyo8m

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.143 Actual damage need not be proved, but potential damage must be more than merely speculative and incidental.

Other Leaks Prosecutions

The Obama Administration is taking a relatively hardline stance with respect to those suspected
of leaking classified information to the press, with seven prosecutions currently under way or
completed (including Bradley Manning).39 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 Mr. Drake was
initially investigated beginning in 2007 in connection with the New York Times’ revelations
regarding the Bush Administration’s warrantless surveillance program, but was eventually
charged in connection with providing classified information that revealed alleged NSA
mismanagement to the Baltimore Sun.41 The prosecution eventually dropped these charges after
the judge ruled that the government’s proposed substitutions for documentary evidence it sought
to introduce would not provide an adequate opportunity for the defendant to present his case.42
After calling the government’s treatment of the defendant in the case “unconscionable” and
declining to impose a fine, the court sentenced Mr. Drake to one year probation and 240 hours of
community service.43

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

The Obama Administration is seeking to compel New York Times reporter James Risen to testify
at the trial of former CIA officer Jeffrey Sterling, who is accused of providing classified
information to Mr. Risen that formed the basis of part of a book.46 The judge ruled, however, that
Mr. Risen need only testify about certain non-privileged information and need not identify the
source of the material in question.47 The government asked the court to reconsider the ruling,
arguing that the reporter’s testimony is “qualitatively different” from the circumstantial evidence
the judge thought would suffice to establish the same facts,48 but the court declined to reconsider.
The Court of Appeals for the Fourth Circuit reversed the ruling on appeal,49 holding there is
neither a First Amendment privilege nor a federal common-law privilege protecting journalists
from being compelled to testify.50 The government also prevailed in its appeal of an order striking
two of its primary witnesses for failure to produce information about them to the defense in a
timely manner.51

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

A former CIA officer, John Kiriakou, was charged for the unauthorized disclosure of classified
information to a journalist. Because the disclosures were alleged to have included the identities of
covert CIA employees, he was also charged under the rarely used Intelligence Identities
Protection Act.56 After the judge rejected his Espionage Act defense based on the lack of intent to
harm the United States or give advantage to a foreign nation,57 Mr. Kiriakou pleaded guilty to
violating the Intelligence Identities Protection Act.58

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 taken
into 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

The publication of the leaked documents by WikiLeaks and the subsequent reporting of
information contained therein, as well as other publications of “leaked” classified information,
raise questions with respect to the possibility of bringing criminal charges for the dissemination
of materials by media organizations following an unauthorized disclosure, in particular when
done by non-U.S. nationals overseas. This report discusses the statutory prohibitions that may be
implicated; the extraterritorial application of such statutes; and the First Amendment implications
related to such prosecutions against domestic or foreign media organizations and associated
individuals.

Statutory Protection of Classified Information

While there is no one statute that criminalizes the unauthorized disclosure of any classified
information, a patchwork of statutes exists to protect information depending upon its nature, the
identity of the discloser and of those to whom it was disclosed, and the means by which it was
obtained. It seems likely that most of the information disclosed by WikiLeaks that was obtained
from Department of Defense databases falls under the general rubric of information related to the
national defense. The diplomatic cables obtained from State Department channels may also
contain information relating to the national defense and thus be covered under the Espionage Act,
but otherwise their disclosure by persons who are not government employees does not appear to
be directly proscribed.62 It is possible that some of the government information disclosed in any
of the releases does not fall under the express protection of any statute, despite its classified
status.

The Espionage Act

National defense information in general is protected by the Espionage Act,63 18 U.S.C. Sections
793–798, while other types of relevant information are covered elsewhere. Some provisions apply
only to government employees or others who have authorized access to sensitive government
information,64 but many apply to all persons. 18 U.S.C. Section 793 prohibits the gathering,
transmitting, or receipt of defense information with the intent or reason to believe the information
will be used against the United States or to the benefit of a foreign nation. Violators are subject to
a fine or up to 10 years’ imprisonment, or both,65 as are those who conspire to violate the statute.66

Persons who possess defense information that they have reason to know could be used to harm
the national security, whether the access is authorized or unauthorized, and who disclose that
information to any person not entitled to receive it, or who fail to surrender the information to an
officer of the United States, are subject to the same penalty.67 Although it is not necessary that the
information be classified by a government agency, the courts seem to give deference to the
executive determination of what constitutes “defense information.”68 Information that is made
available by the government to the public is not covered under the prohibition, however, because
public availability of such information negates the bad-faith intent requirement.69 On the other
hand, classified documents remain within the ambit of the statute even if information contained
therein is made public by an unauthorized leak.70

( . . .)

pp. 23-25

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.143 Actual damage need not be proved, but potential damage must be more than merely
speculative and incidental.144 On the other hand, the Court has stated that “state action to punish
the publication of truthful information seldom can satisfy constitutional standards.”145 And it has
described the constitutional purpose behind the guarantee of press freedom as the protection of
“the free discussion of governmental affairs.”146

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,147 it does not necessarily follow
that government classification by itself will be dispositive of the issue in the context of a criminal
information was “related to the national defense” was a question for the jury to decide,156 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.”157 As long as the jury was properly instructed that
only information likely to cause damage meets the definition of information “related to the
national defense” for the purpose of the statute, the term was not unconstitutionally vague.
United States v. Morison158 is significant in that it represents the first case in which a person was
convicted for selling classified documents to the media.159 Samuel Loring Morison, charged with
providing classified satellite photographs to the British defense periodical Jane’s Defence Weekly,
argued that the espionage statutes did not apply to his conduct because he could not have had the
requisite intent to commit espionage. The U.S. Court of Appeals for the Fourth Circuit rejected
his appeal, finding the intent to sell photographs that he clearly knew to be classified sufficient to
satisfy the scienter requirement under 18 U.S.C. Section 793(d) (disclosure by lawful possessor of
defense information to one not entitled to receive it). The definition of “relating to the national
defense” was held not to be overbroad because the jury had been instructed that the government
had the burden of showing that the information was so related.160 His assertedly laudable motive
in permitting publication of the photographs was not found to negate the element of intent.161
The fact that the Morison prosecution involved a leak to the media with no obvious intent to
transmit sensitive information to hostile intelligence services did not persuade the jury or the
judges involved that he lacked culpability. The Justice Department did, however, come under
some criticism on the basis that such prosecutions are so rare as to amount to a selective
prosecution in his case, and that it raised concerns about the chilling effect such prosecutions
could have on would-be whistle-blowers who could provide information embarrassing to the
government but vital to public discourse.162 On leaving office, President Clinton pardoned
Morison.163


______________________________________
39 See Scott Shane, Ex-N.S.A. Official Takes Plea Deal, NY TIMES, June 10, 2011, at A1, available at
http://www.nytimes.com/2011/06/10/us/10leak.html?_r=1.
40 See Ellen Nakashima, Ex-NSA official Thomas Drake to plead guilty to misdemeanor, WASH. POST, June 9, 2011, at
http://www.washingtonpost.com/national/national-security/ex-nsa-manager-has-reportedly-twice-rejected-pleabargains-
in-espionage-act-case/2011/06/09/AG89ZHNH_story.html.
41 See Jane Mayer, The Secret Sharer, New Yorker, May 23, 2011, http://www.newyorker.com/reporting/2011/05/23/
110523fa_fact_mayer.
42 United States v. Drake, Crim. No. 10 CR 00181 RDB (N.D. Md.) (Government Motion to Dismiss the Indictment at
the Time of Sentencing) (filed June 10, 2011), available at http://www.fas.org/sgp/jud/drake/061011-dismiss.pdf.
43 See Steven Aftergood, Handling of Drake Leak Case was “Unconscionable,” Court Said, SECRECY NEWS (July 29,
2011), http://www.fas.org/blog/secrecy/2011/07/drake_transcript.html.
44 See Press Release, Department of Justice, Former FBI Contract Linguist Pleads Guilty to Leaking Classified
Information to Blogger (December 17, 2009), available at http://www.justice.gov/opa/pr/2009/December/09-nsd-
1361.html.
45 Id.
46 Jeffrey Sterling was indicted for several counts of violating the Espionage Act (disclosure and retention of national
defense information) as well as mail fraud, conversion of government property, and obstruction of justice. The
indictment is available at http://www.fas.org/sgp/jud/sterling/indict.pdf.
47 Steven Aftergood, Reporter Risen Will Not Have to Identify Source in Leak Trial, SECRECY NEWS (August 1, 2011),
http://www.fas.org/blog/secrecy/2011/08/risen_off_hook.html. For an overview of the law regarding the reporter’s
privilege, see CRS Report RL34193, Journalists’ Privilege: Overview of the Law and Legislation in the 113th
Congress, by Kathleen Ann Ruane.
48 See Government’s Motion for Clarification and Reconsideration, United States v. Sterling, No. 1:10cr485 (E.D. Va.
August 24, 2011), available at http://www.fas.org/sgp/jud/sterling/082411-recon.pdf.
49 United States v. Sterling, __ F.3d __, 2013 WL 3770692 (4th Cir. July 19, 2013).
50 See CRS Report WSLG630, Confusing Branzburg: Is There a Journalists’ Privilege Under the First Amendment?,
by Kathleen Ann Ruane.
51 Sterling at *22-*25.
52 See Spencer S. Hsu, State Dept. contractor charged in leak to news organization, WASH. POST, August 28, 2010.
53 Ann E. Marimow, A rare peek into a Justice Department leak probe, WASH. POST, May 19. 2013.
54 See Hsu, supra, footnote 52.
55 United States v. Kim, 808 F. Supp. 2d 44 (D.D.C. 2011).
56 50 U.S.C. §§421-426. For more information about this statute, see CRS Report RS21636, Intelligence Identities
Protection Act, by Jennifer K. Elsea.
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).
58 Press Release, U.S. Attorney for the Eastern District of Virginia, “Former CIA Officer John Kirakou Pleads Guilty to
Disclosing Classified Information About CIA Officer,” October 23, 2012, available at http://www.fbi.gov/
washingtondc/press-releases/2012/former-cia-officer-john-kirakou-pleads-guilty-to-disclosing-classified-informationabout-
cia-officer.
59 Mark Mazzetti and Michael S. Schmidt, Ex-Worker at C.I.A. Says He disclosed U.S. Surveillance, NY TIMES, June
10, 2013, at A1.
60 Ellen Barry and Peter Baker, Snowden, in Russia, Seeks Asylum in Ecuador, NY TIMES, June 23, 2013, at A1.
61 Peter Finn and Sari Horwitz, U.S. files charges against Snowden, WASH. POST, June 22, 2013, at A1 (reporting that
DOJ officials have filed a criminal complaint).
62 See 18 U.S.C. §952 (prohibiting the disclosure or publication of certain diplomatic material obtained “by virtue of …
employment by the United States”).
63 Act of October 6, 1917, ch. 106, §10(i), 40 Stat. 422.
64 E.g., 18 U.S.C. §§952 (prohibiting disclosure of diplomatic codes and correspondence), 1924 (unauthorized removal
and retention of classified documents or material); 50 U.S.C. §783 (unauthorized disclosure of classified information to
an agent of a foreign government, unauthorized receipt by foreign government official).
65 18 U.S.C. §793(a)-(c) provides:
(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or
reason to believe that the information is to be used to the injury of the United States, or to the
advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information
concerning any vessel, aircraft, work of defense, [etc.], or any prohibited place so designated by the
President by proclamation in time of war or in case of national emergency in which anything for
the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as
to which prohibited place the President has determined would be prejudicial to the national defense;
or
(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes,
makes, or obtains, or attempts to copy, take, make, or obtain any sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of
anything connected with the national defense; or
(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or
obtain from any person, or from any source whatever, any [protected thing] connected with the
national defense, knowing or having reason to believe ... that it has been or will be obtained, taken,
made, or disposed of by any person contrary to the provisions of this chapter [18 U.S.C. §§792 et
seq.]....
66 18 U.S.C. §793(g) provides:
If two or more persons conspire to violate any of the foregoing provisions of this section, and one
or more of such persons do any act to effect the object of the conspiracy, each of the parties to such
conspiracy shall be subject to the punishment provided for the offense which is the object of such
conspiracy.
67 18 U.S.C. §793(e) provides:
Whoever having unauthorized possession of, access to, or control over any document [or other
protected thing related to the national defense], or information relating to the national defense
which information the possessor has reason to believe could be used to the injury of the United
States or to the advantage of any foreign nation, willfully communicates, delivers, transmits ... to
any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer
or employee of the United States entitled to receive it; … Shall be fined under this title or
imprisoned not more than ten years, or both.
Section 793(d) is identical to §794(e), except that it applies to persons with authorized access to the
information at issue, in which case the failure to deliver offense applies to failure to turn the information over
to a government official only if there was a demand for its return.
Section 793(f) likewise applies only to those with authorized access to the covered materials, punishing those
who
(1) through gross negligence permits the same to be removed from its proper place of custody or
delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or
delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to
make prompt report of such loss, theft, abstraction, or destruction to his superior officer.
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).
70 United States v. Squillacote, 221 F.3d 542, 578 (4th Cir. 2000).
71 Morison, 844 F.2d at 1064-65 (explaining that critical element distinguishing §794 from §793 is the requirement that
disclosure be made to an agent of a foreign government rather than anyone not entitled to receive it).
( . . .)
143 “National Security” is defined as national defense and foreign relations. See Exec. Order No. 13526, 75 Fed. Reg.
707 §6.1(cc) (January 5, 2010).
144 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)).
145 Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (citing Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)).
146 Mills v. Alabama, 384 U.S. 214, 218 (1966). Because of the First Amendment purpose to protect the public’s ability
to discuss governmental affairs along with court decisions denying that it provides any special rights to journalists, e.g.,
Branzburg v. Hayes, 408 U.S. 665 (1972), it is not likely a plausible argument to posit that it does not apply to the
foreign press. See United States v. 18 Packages of Magazines 238 F. Supp. 846, 847-848 (D.C. Cal. 1964) (“Even if it
be conceded, arguendo, that the ‘foreign press’ is not a direct beneficiary of the Amendment, the concession gains
nought for the Government in this case. The First Amendment does protect the public of this country. … The First
Amendment surely was designed to protect the rights of readers and distributors of publications no less than those of
writers or printers. Indeed, the essence of the First Amendment right to freedom of the press is not so much the right to
print as it is the right to read. The rights of readers are not to be curtailed because of the geographical origin of printed
materials.”). The Supreme Court invalidated, on First Amendment grounds, a statute that required postal authorities to
detain unsealed mail from abroad deemed to contain “communist political propaganda” unless the recipient affirms a
desire to receive it. Lamont v. Postmaster General, 381 U.S. 301 (1965).
Likewise, the fact that WikiLeaks is not a typical newsgathering and publishing organization would likely make little
difference under First Amendment analysis. The Supreme Court has not established clear boundaries between the
protection of speech and that of the press, nor has it sought to develop criteria for identifying what constitutes “the
press” that might qualify its members for privileges not available to anyone else. See generally CONGRESSIONAL
RESEARCH SERVICE, THE CONSTITUTION OF THE UNITED STATES: ANALYSIS AND INTERPRETATION, SEN. DOC. NO. 108-
17, at 1083-86 (2002), available at http://crs.gov/conan/default.aspx?mode=topic&doc=Amendment01.xml&t=2|3.
147 Exec. Order No. 13526, 75 Fed. Reg. 707 §1.2 (January 5, 2010) (“Classified National Security Information”).
Section 1.3 defines three levels of classification:
(1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause exceptionally grave damage to the national security that the original
classification authority is able to identify or describe.
(2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could
be expected to cause serious damage to the national security that the original classification
authority is able to identify or describe.
(3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause damage to the national security that the original classification authority
is able to identify or describe.
148 United States v. Heine, 151 F.2d 813 (2d Cir.1945) (information must be “closely held” to be considered “related to
the national defense” within the meaning of the espionage statutes).
149 See, e.g., United States v. Abu-Jihaad 600 F.Supp.2d 362, 385-86 (D. Conn. 2009) (although completely inaccurate
information might not be covered, information related to the scheduled movements of naval vessels was sufficient to
bring materials within the ambit of national defense information).
150 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.”).
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).
153 See United States v. Dedeyan, 594 F.2d 36, 39 (4th Cir. 1978).
154 312 U.S. 19 (1941).
155 Id. at 28.
156 Id. at 32. The information defendant was charged with passing to the Soviet government had to do with U.S.
intelligence on the activities of Japanese citizens in the United States.
157 Id. at 31.
158 844 F.2d 1057 (4th Cir.), cert. denied, 488 U.S. 908 (1988).
159 Efforts to prosecute Daniel Ellsberg and Anthony Russo in connection with the disclosure of the Pentagon Papers
were unsuccessful after the judge dismissed them for prosecutorial misconduct. More recently, a Defense Department
employee pleaded guilty to charges under the Espionage Act for disclosing classified material to lobbyists and to
journalists. United States v. Franklin, Cr. No. 05-225 (E.D. Va., 2005). For a description of these and other relevant
cases, see Lee, supra footnote 110.
160 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).
161 844 F.2d at 1073-74. Morison had stated that he sought the publication of the photos because they would
demonstrate to the public the gravity of the threat posed by the Soviet Union, which he hoped would result in an
increased defense budget. See P. Weiss, The Quiet Coup: U.S. v. Morison - A Victory for Secret Government,
HARPER’S, September 1989.
162 See Jack Nelson, U.S. Government Secrecy and the Current Crackdown on Leaks 8, The Joan Shorenstein Center on
the Press, Politics and Public Policy, Working Paper Series 2003-1 (2002), available at http://www.hks.harvard.edu/
presspol/publications/papers/working_papers/2003_01_nelson.pdf.
163 Valerie Strauss, Navy Analyst Morison Receives a Pardon, WASH. POST, January 21, 2001, at A17. Senator Daniel
Patrick Moynihan wrote a letter in support of Morison’s pardon and explaining his view that “An evenhanded
prosecution of leakers could imperil an entire administration,” and that “f ever there were to be widespread action
taken, it would significantly hamper the ability of the press to function.” Letter, Sen. Daniel Patrick Moynihan to
(continued...)

Specifically, it appears her personal lawyer David Kendall, her chief of staff Cheryl Mills, and another lawyer Heather Samuelson are the ones who sort the emails, with Samuelson leading the effort. Samuelson is said to be a Clinton loyalist, and she worked under Clinton in the State Department. But she has no background in federal record keeping, and it is unclear if she has any security clearance. It is also unknown if Kendall or Mills have the necessary security clearances or qualifications to make such decisions. (Politico, 9/4/2015) Once the sorting process is done, they move all the emails they deem work-related on one or more thumb drives. It is not known when this happens exactly, but the Post specifies it takes place in 2014. The remainder of the emails apparently are set to be automatically deleted after 30 or 60 days of inactivity (reports differ). (The Washington Post, 9/12/2015) (McClatchy Newspapers, 10/6/2015)

UNCLASSIFIED U.S. Department of State Case No. F-2015-05069 Doc No. C05833708 Date: 11/05/2015
! I RELEASE IN PART I
B7(C),B6
---------------------------------1REVIEW AUTHORITY:
CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT Barbara Nielsen, Senior
Reviewer
AN AGREEMENT BETWEEN Hillary Rodham Clinton AND THE UNITED STATES
1. lntending to be legally bound. I hereby accept the obligations contained In this Agreement In consideration of my being granted access to classified information. As used in this Agreement, classified Information is marked or unmarked classified Information, including oral communications, that is classified under the standards or Executive Order 12958, or under any other Executive order or statute that prohibits unauthorized disclosure of lnformation in the Interest of national security; and unclassified Information that meets the standards for classification and is in the process of a classification determination as provided In Section 1.1, 1.2, 1.3 and 1A(e) of Executive Order 12958 or under any other Executive order or statute that requires protection for such information in the of national security. I understand and accept that by being granted access to classified lnformation special confidence and trust have been placed in me by the United States Government .
2. I hereby acknowledge that I have received a security lndoctrination concerning the nature and protection of classified information, including the procedures to be followed in ascertaining whether other persons to whom I contemplate disclosing this Information have been approved for access to it, and that I understand these procedures.
3. I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified Information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will not divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it, or (b) I have been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) 1'9SJ) responsible for the classification of information or last granting me a security clearance that such disclosure is permitted. I understand that lf I am uncertain about the classification status of Information, I am required to confirm from an authorized official that the Information is unclassified before I may disclose It, except to a person as provided in (a) or (b), above. I further understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified lnformation.
4. I have been advised that any breach of this may result In the termination of any security clearances I hold; removal from any position of special confidence and trust requiring such clearances; or termination of my employment or other relationships with the Departments or Agencies that granted my security clearance or clearances. In addition, I have been advised that any unauthorized disclosure of classified lnformation by me may constitute a violation, or violations. of Untied States criminal laws, including the provisions of Sections 641. 793, 794, 798, *952 and 1924, Title 18, United States Code, and the provisions of Section 783(b), Title 50,
United Slates code. and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing In the Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation..
5. I hereby assign to the United States Government all royalties, remunerations. and emoluments that have resulted, wiII result or may result from any disclosure, publication or revelation of classified Information not consistent with the terms of this Agreement
6. I understand that the United States Government may seek any remedy available to it to enforce this Agreement Including, but not but not limited to application for a court order prohibiting disclosure of Information In breach of this Agreement.
1. I understand that all classified information to which I have access or may obtain access by signing this Agreement will remain the property of, or under the control of the United States Government unless and until otherwise determined by an authorized official or final ruling of a court of law. I agree that I shall return all classified materials which have or may come into my possession or for which I am responsible because of such access: (a) upon demand by an authorized representative of the United States Government; (b) upon the conclusion of employment or other relationship with the Department or Agency that last granted me a security clearance or- that provided me access ID classifled Information; or (c) upon the conclusion of my employment or other relationship that requires access to classified information. If I do not return such materials upon request, I understand that this may be a violation of Sections 793 and/or 1924, § 18, United States Code, a United States criminal law.
8. Unless and until I am released In writing by an authorized representative or the United States Government.. I understand that all conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified lnformation, and at all times thereafter.
9. Each provision of this Agreement is severable. If a court should find provision of this Agreement to be unenforceable, all other provisions of this Agreement shall remain In full force and effect.

The Romanian hacker who first exposed Hillary Clinton's private email address is making a bombshell new claim -- that he also gained access to the former Secretary of State's "completely unsecured" server.

"It was like an open orchid on the Internet," Marcel Lehel Lazar, who uses the devilish handle Guccifer, told NBC News in an exclusive interview from a prison in Bucharest. "There were hundreds of folders."

Section 793(e) differentiates between “tangible” information, i.e., the laundry list of items in the statute and “intangible” information, i.e., knowledge. For intangible information, the government must also prove mens rea: that “the possessor has reason to believe (the intangible information) could be used to the injury of the United States or to the advantage of any foreign power. 18 U.S.C. § 793(e). The House Committee, in its report on § 793(e) in connection with the 1950 revision of the Espionage Act, explained that this qualifying language addressed concerns that the category of illegally communicated intangible information was potentially overbroad. H.R.Rep. No. 647, 81st Cong., 1st Sess. (1949), at 4. The Committee left it to the courts to define this limiting phrase on a case-by-case basis, but stressed that the “qualification [was] not intended to qualify the other items enumerated in the subsections.” Id. (emphasis added). Accordingly, the government must address the limiting phrase only where the information at issue is intangible.

under 18 U.S.C. § 793(e), the Government is not
required to prove that the accused had reason to believe the
information "could be used to the injury of the United States"
when the accused had unauthorized possession of any "document,
writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, or
note relating to the national defense." See 18 U.S.C. § 793(e). In
other words, the "reason to believe" scienter requirement only
applies to intangible information relating to the national defense,
not the tangible items listed above. See United States v. Kiriakou,
2012 WL 4903319, at *1 (E.D. Va. Oct. 1 6, 2012) ("Importantly, §
793 [e] differentiates between 'tangible' NDI, described in the
'documents' clause ( 'any document, ... or note relating to the
national defense'), and 'intangible' ND I, described in the
'information' clause ('information relating to the national
defense').&quot ; United States v. Rosen, 445 F. Supp. 2d 602, 612
( E.D. Va. 2006) ("Second, Congress expanded the category of
what could not be communicated pursuant to § § 793(d) and (e) to
include 'information relating to the national defense,' but modified
this additional item by adding a scienter requirement....&quot .

ftn. 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).

"For the purposes of this Agreement, classified information is marked and unmarked information."

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

UNCLASSIFIED U.S. Department of State Case No. F-2015-05069 Doc No. C05833708 Date: 11/05/2015
! I RELEASE IN PART I
B7(C),B6
---------------------------------1REVIEW AUTHORITY:
CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT Barbara Nielsen, Senior
Reviewer
AN AGREEMENT BETWEEN Hillary Rodham Clinton AND THE UNITED STATES
1. lntending to be legally bound. I hereby accept the obligations contained In this Agreement In consideration of my being granted access to classified information. As used in this Agreement, classified Information is marked or unmarked classified Information, including oral communications, that is classified under the standards or Executive Order 12958, or under any other Executive order or statute that prohibits unauthorized disclosure of lnformation in the Interest of national security; and unclassified Information that meets the standards for classification and is in the process of a classification determination as provided In Section 1.1, 1.2, 1.3 and 1A(e) of Executive Order 12958 or under any other Executive order or statute that requires protection for such information in the of national security. I understand and accept that by being granted access to classified lnformation special confidence and trust have been placed in me by the United States Government .
2. I hereby acknowledge that I have received a security lndoctrination concerning the nature and protection of classified information, including the procedures to be followed in ascertaining whether other persons to whom I contemplate disclosing this Information have been approved for access to it, and that I understand these procedures.
3. I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified Information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will not divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it, or (b) I have been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) 1'9SJ) responsible for the classification of information or last granting me a security clearance that such disclosure is permitted. I understand that lf I am uncertain about the classification status of Information, I am required to confirm from an authorized official that the Information is unclassified before I may disclose It, except to a person as provided in (a) or (b), above. I further understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified lnformation.
4. I have been advised that any breach of this may result In the termination of any security clearances I hold; removal from any position of special confidence and trust requiring such clearances; or termination of my employment or other relationships with the Departments or Agencies that granted my security clearance or clearances. In addition, I have been advised that any unauthorized disclosure of classified lnformation by me may constitute a violation, or violations. of Untied States criminal laws, including the provisions of Sections 641. 793, 794, 798, *952 and 1924, Title 18, United States Code, and the provisions of Section 783(b), Title 50,
United Slates code. and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing In the Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation..
5. I hereby assign to the United States Government all royalties, remunerations. and emoluments that have resulted, wiII result or may result from any disclosure, publication or revelation of classified Information not consistent with the terms of this Agreement
6. I understand that the United States Government may seek any remedy available to it to enforce this Agreement Including, but not but not limited to application for a court order prohibiting disclosure of Information In breach of this Agreement.
1. I understand that all classlfled information to which I have access or may obtain access by signing this Agreement will remain the property of, or under the control of the United States Government unless and until otherwise determined by an authorized official or final ruling of a court of law. I agree that I shall return all classffled materials which have or may come into my possession or for which I am responsible because of such access: (a) upon demand by an authorized representative of the United States Government; (b) upon the conclusion of employment or other relationship with the Department or Agency that last granted me a security clearance or- that provided me access ID classifled Information; or (c) upon the conclusion of my employment or other relationship that requires access to classified information. If I do not return such materials upon request, I understand that this may be a violation of Sections 793 and/or 1924, § 18, United States Code, a United States criminal law.
8. Unless and until I am released In writing by an authorized representative or the United States Government.. I understand that all conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified lnformation, and at all times thereafter.
9. Each provision of this Agreement is severable. If a court should find provision of this Agreement to be unenforceable, all other provisions of this Agreement shall remain In full force and effect.

UNCLASSIFIED U.S. Department of State Case No. F-2015-05069 Doc No. C05833708 Date: 11/05/2015
! I RELEASE IN PART I
B7(C),B6
---------------------------------1REVIEW AUTHORITY:
CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT Barbara Nielsen, Senior
Reviewer
AN AGREEMENT BETWEEN Hillary Rodham Clinton AND THE UNITED STATES
1. lntending to be legally bound. I hereby accept the obligations contained In this Agreement In consideration of my being granted access to classified information. As used in this Agreement, classified Information is marked or unmarked classified Information, including oral communications, that is classified under the standards or Executive Order 12958, or under any other Executive order or statute that prohibits unauthorized disclosure of lnformation in the Interest of national security; and unclassified Information that meets the standards for classification and is in the process of a classification determination as provided In Section 1.1, 1.2, 1.3 and 1A(e) of Executive Order 12958 or under any other Executive order or statute that requires protection for such information in the of national security. I understand and accept that by being granted access to classified lnformation special confidence and trust have been placed in me by the United States Government .
2. I hereby acknowledge that I have received a security lndoctrination concerning the nature and protection of classified information, including the procedures to be followed in ascertaining whether other persons to whom I contemplate disclosing this Information have been approved for access to it, and that I understand these procedures.
3. I have been advised that the unauthorized disclosure, unauthorized retention, or negligent handling of classified Information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation. I hereby agree that I will not divulge classified information to anyone unless: (a) I have officially verified that the recipient has been properly authorized by the United States Government to receive it, or (b) I have been given prior written notice of authorization from the United States Government Department or Agency (hereinafter Department or Agency) 1'9SJ) responsible for the classification of information or last granting me a security clearance that such disclosure is permitted. I understand that lf I am uncertain about the classification status of Information, I am required to confirm from an authorized official that the Information is unclassified before I may disclose It, except to a person as provided in (a) or (b), above. I further understand that I am obligated to comply with laws and regulations that prohibit the unauthorized disclosure of classified lnformation.
4. I have been advised that any breach of this may result In the termination of any security clearances I hold; removal from any position of special confidence and trust requiring such clearances; or termination of my employment or other relationships with the Departments or Agencies that granted my security clearance or clearances. In addition, I have been advised that any unauthorized disclosure of classified lnformation by me may constitute a violation, or violations. of Untied States criminal laws, including the provisions of Sections 641. 793, 794, 798, *952 and 1924, Title 18, United States Code, and the provisions of Section 783(b), Title 50,
United Slates code. and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing In the Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation..
5. I hereby assign to the United States Government all royalties, remunerations. and emoluments that have resulted, wiII result or may result from any disclosure, publication or revelation of classified Information not consistent with the terms of this Agreement
6. I understand that the United States Government may seek any remedy available to it to enforce this Agreement Including, but not but not limited to application for a court order prohibiting disclosure of Information In breach of this Agreement.
1. I understand that all classlfled information to which I have access or may obtain access by signing this Agreement will remain the property of, or under the control of the United States Government unless and until otherwise determined by an authorized official or final ruling of a court of law. I agree that I shall return all classffled materials which have or may come into my possession or for which I am responsible because of such access: (a) upon demand by an authorized representative of the United States Government; (b) upon the conclusion of employment or other relationship with the Department or Agency that last granted me a security clearance or- that provided me access ID classifled Information; or (c) upon the conclusion of my employment or other relationship that requires access to classified information. If I do not return such materials upon request, I understand that this may be a violation of Sections 793 and/or 1924, § 18, United States Code, a United States criminal law.
8. Unless and until I am released In writing by an authorized representative or the United States Government.. I understand that all conditions and obligations imposed upon me by this Agreement apply during the time I am granted access to classified lnformation, and at all times thereafter.
9. Each provision of this Agreement is severable. If a court should find provision of this Agreement to be unenforceable, all other provisions of this Agreement shall remain In full force and effect.