National security information disclosures and the role of intent.

AuthorPapandrea, Mary-Rose
PositionI. The Current State of the Criminal Law C. Other Relevant Statutes through Conclusion, with footnotes, p. 1411-1441
  1. Other Relevant Statutes

    Issues of intent have arisen in debates surrounding other laws aimed at punishing the unauthorized disclosure of national security information.

    1. Specific Categories of Information

      In the decades following the Espionage Act, Congress passed additional legislation targeting the unauthorized disclosures of specific categories of national security information with limited intent standards--in some cases, virtually none at all.

      For example, [section] 798 specifically criminalizes "knowingly and willfully" communicating, transmitting, furnishing, or publishing "classified information ... concerning the communication intelligence activities of the United States." (158) Although this statute is broadly applicable to government insiders and outsiders alike, the statute does not require an offender to have "intent or reason to believe" that the publication would harm the United States or provide an advantage to a foreign power. The legislative history demonstrates that the government does not have to prove that the defendant acted with a motive to harm the United States or aid a foreign entity. (159)

      Another example is the Atomic Energy Act of 1954, which protects the secrecy of information relating to nuclear energy and weapons. (160) The Act subjects anyone who "communicates, transmits, or discloses" documents or information "involving or incorporating Restricted Data" with the "intent to injure the United States" or advantage a foreign nation, (161) or who has "reason to believe such data" would have that effect to criminal penalties. (162) Those who act with "intent" to advantage a foreign nation or harm the United States face possible life imprisonment and a $100,000 fine, whereas those who act with mere "reason to believe" that the information could advantage a foreign nation face a maximum of ten years in jail and a $50,000 fine. (163) These provisions apply regardless of whether the offender obtained the documents or information at issue "lawfully or unlawfully." (164) Those who receive, attempt to receive, or conspire to receive documents or information "involving or incorporating Restricted Data" can also be prosecuted under another provision provided they act "with intent to injure the United States or with intent to secure an advantage to any foreign nation." (165)

      In addition, government employees, contractors, and military officials can be punished for "knowingly" communicating "Restricted Data" to any person not authorized to receive it as long as the offender did so "knowing or having reason to believe that such data is Restricted Data." (166) In such a case, it is not necessary that a person communicate Restricted Data with the intent to harm the United States or advantage a foreign nation, or with reason to believe the communication would have such effect. The Act also specifically authorizes the government to obtain injunctive relief to prevent any violations of its provisions. (167) In United States v. Progressive, Inc., a federal district court relied on the Atomic Energy Act to grant a preliminary injunction to prevent the publication of a magazine article describing a method of manufacturing and assembling a hydrogen bomb. (168)

      A third example of legislation aimed at a specific category of national security information is the Intelligence Identities Protection Act of 1982 (IIPA), which prohibits the identification of covert agents. (169) The debate surrounding the enactment of this legislation focused extensively on the appropriate culpability standards as a possible means for protecting well-meaning publications. Under the first two provisions of the IIPA, which are directed at past or present government employees, contractors, or military officials, anyone with authorized access to classified information that identifies a covert agent is prohibited from "intentionally disclosing" that information to any individual not entitled to receive it. (170) The statute does not require the defendant to have any particular motive for the disclosure. (171)

      The third provision of the IIPA prohibits anyone outside the government from disclosing information identifying a covert agent to anyone not entitled to receive classified information. (172) This portion of the statute is not limited to the disclosure of classified information. As the committee report explained, a person could be prosecuted under this statute for publishing information obtained through a "comprehensive counterintelligence effort of engaging in physical surveillance, electronic surveillance abroad, and other techniques of espionage directed at covert agents." (173)

      The legislative history reflects concern about criminalizing constitutionally protected speech, such as academic studies or reports in the media of intelligence failures. (174) Earlier proposed versions required the government to prove that the disclosure of the identity of a covert agent was made "with the intent to impair or impede foreign intelligence activities." (175) Some critics complained that this sort of subjective intent standard would not protect journalists because the fact-finder might accept a history of reporting critical of the United States as evidence of a bad intent. (176) At the same time, the government was concerned that an intent standard could make it unduly difficult to prove beyond a reasonable doubt that a defendant intended to impede foreign intelligence activities and could lead to graymail. (177)

      Congress abandoned the bad intent standard in favor of a more objective "reason to believe standard" and coupled it with a requirement that the exposure be part of a "pattern of activities intended to identify and expose covert agents." (178) By changing the statute to require a "pattern of activities," Congress attempted to limit the applicability of the statute to those who "make it their business to ferret out and publish the identities of agents," without "affect [ing] the First Amendment rights of those who disclose the identities of agents as an integral part of another enterprise such as news media reporting of intelligence failures or abuses, academic studies of U.S. government policies and programs, or a private organization's enforcement of its internal rules." (179) The committee report also indicated that a reporter would "rarely" have the requisite intent to "identify and expose covert agents," as the law requires. (180) Any proof that a reporter had that intent could be rebutted by evidence demonstrating an alternative, permissible intent, such as the intent to explain questionable government conduct. (181)

    2. Espionage-Related Statutes

      In addition to the Espionage Act, Congress has passed a number of other laws that target conduct closely related to traditional espionage activities.

      Under 18 U.S.C. [section] 951, it is federal crime to serve "in the United States as an agent of a foreign government without prior notification to the Attorney General." (182) The statute defines "agent of a foreign government" as "an individual who agrees to operate within the United States subject to the direction or control of a foreign government or official." (183) In United States v. Dumeisi, a defendant was convicted of violating this provision based on evidence that he published newspaper articles in an Arabic-language newspaper in the Chicago suburbs pursuant to the directions and instructions of the Iraqi Intelligence Service. (184) The Seventh Circuit held that the conviction did not violate the First Amendment because the district court properly instructed the jury that the defendant could be convicted only if he published these articles pursuant to the direction or control of a foreign government, not simply because he published newspaper articles, which is a constitutionally protected activity. (185)

      Federal law also specifically prohibits government employees from communicating classified information "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." (186) Although the plain language of this statute might support the prosecution of a government insider who gives information to the press in the hopes that it would be disseminated to a foreign government or agent, Edgar and Schmidt conclude that the legislative history indicates the contrary. (187) This statute applies only if the defendant "know[s] or ha[s] reason to know" that the information was classified. (188) Lower courts, however, have held that the government does not have to prove that the information was properly classified. (189) The D.C. Circuit explained that employees can go through the appropriate internal channels to challenge a classification decision, but they cannot challenge the classification decision as part of their prosecution. (190) Under a contrary rule, the D.C. Circuit asserted, "[t]he trial of the employee would be converted into a trial of the superior." (191)

  2. Lessons from Congress and the Courts

    As the foregoing discussion demonstrates, Congress has struggled for over one hundred years to strike the right balance between national security and free speech. The current statutory framework and accompanying legislative history provide valuable lessons regarding the various factors that might be relevant if and when Congress decides to pass revised legislation relating to the collection and dissemination of national security information. The most important lesson is that striking the proper balance between the free flow of information and the need to protect our national security interests is extraordinarily difficult. But beyond that, Congress--as well as courts tasked with interpreting and applying the current laws--has recognized the various different facets of the problem presented.

    First, Congress clearly recognizes that traditional espionage poses the greatest danger to our national security...

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