Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information

"High-profile leaks and disclosures of protected government information have prompted frequent congressional interest in the criminal penalties for disclosing government secrets. In one recent case, a U.S. Air National Guardsman allegedly posted photographs on social media of documents that, according to media outlets, contained classified information about the Russia-Ukraine war and other international affairs.

No single statute criminalizes all unauthorized disclosure of protected government information. Rather, the legal framework is based on a complex and often overlapping set of statutes or individual provisions within statutes, which are outlined in this report. Criminal prosecutions arising from unauthorized disclosures frequently focus on the Espionage Act, with specific charges varying based on certain factors. Successful prosecutions can result in punishments ranging from severe penalties and imprisonment for “classic spying” cases (when an individual collects information in an effort to provide aid to a foreign government) to less severe penalties for cases such as failing to report that protected information has been mishandled or lost.

Historically, the United States has prosecuted under the Espionage Act and related statutes (1) individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents and (2) foreign agents who obtain classified information unlawfully while present in the United States. The United States has also prosecuted individuals claiming an altruistic desire to expose protected information to the public based on their belief that the public good favors transparency into particular government activities. While not every prosecution against an alleged “whistleblower” has been successful, no individual has been acquitted on the grounds that the public interest in the leaked information was so significant as to justify an otherwise unlawful disclosure.

Some have questioned whether the Espionage Act covers only initial disclosure of protected information or whether it also criminalizes the receipt and publication of that information by third parties, such as the press. The United States has never prosecuted a traditional news organization for receiving and publicizing leaked information, but it has extended its prosecution efforts to the individual not responsible for the initial disclosure. This report examines prosecutions of individuals who leak information to the press or policy organizations, such as lobbying groups and think tanks, as well as civil and criminal actions that have been brought against the recipients of leaked information.

Prosecutions and legal proceedings arising out of leaks may also implicate First Amendment issues regarding freedom of speech and freedom of the press. At the same time, exposure of protected information may harm U.S. national security. Because these cases can raise First Amendment concerns regarding freedom of speech and freedom of the press, the constitutional framework relevant to prosecutions and other legal proceedings filed as a result of leaked classified information is also analyzed in this report, discussing ways Members of Congress who are evaluating criminal prohibitions on disclosures of protected information may seek to balance these competing interests within the constitutional framework..."
Leaked Classified Defense Information 

The Protection of Classified Information: The Legal Framework

"Summary

This report provides an overview of the relationship between executive and legislative authority over national security information. It summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. Finally, the report discusses insider risk management measures..

Background

Prior to the New Deal, decisions regarding classification of national security information were left to military regulation.1 In 1940, President Franklin Roosevelt issued an executive order authorizing government officials to protect information pertaining to military and naval installations.2 Presidents since that time have continued to set the federal government’s classification standards by executive order, but with one critical difference: while President Roosevelt cited specific statutory authority for his action,3 later Presidents have cited general statutory and constitutional authority.4

The Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch’s power in this area. Citing the President’s constitutional role as Commanderin-Chief,5 the Supreme Court has repeatedly stated in dicta that “[the President’s] authority to classify and control access to information bearing on national security ... flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” 6 This language has been interpreted by some to indicate that the President has plenary authority to control classified information.7 On the other hand, the Supreme Court has suggested that “Congress could certainly [provide] that the Executive Branch adopt new [classification procedures] or [establish] its own procedures—subject only to whatever limitations the Executive Privilege may be held to impose on such congressional ordering.” 8 In fact,Congress established a separate regime in the Atomic Energy Act for the protection of nuclearrelated “Restricted Data.” 9

Congress has also directed the President to establish procedures governing the access to classified material so that generally no person can gain such access without having undergone a background check.10 In addition, Congress directed the President, in formulating the classification procedures, to adhere to certain minimum standards of due process with regard to access to classified information.11 These standards include establishing uniform procedures for, inter alia, background checks, denial of access to classified information, and notice of such denial.12 There is an exception to the due process requirements, however, where compliance could damage national security, although the statute directs agency heads to submit a report to the congressional intelligence committees in such a case..."
Classified Information 

The Protection of Classified Information: The Legal Framework

"This report provides an overview of the relationship between executive and legislative authority
over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties..."
https://www.fas.org/sgp/crs/secrecy/RS21900.pdf