CRS report: Criminal Prohibitions on the Publication of Classified Defense Information

[Shawn Merdinger <shawnmer () gmail com>]

http://opencrs.com/document/R41404/

Summary

The recent 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 U.S. criminal law. The
Attorney General has reportedly stated that the Justice Department and
Department of Defense are investigating the circumstances to determine
whether any prosecutions will be undertaken in connection with the
disclosure. 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 will discuss 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 will also provide
a summary of pending legislation relevant to the issue, including S.
4004.
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