August 1, 1975
Page 26908
A NATIONAL SECRETS ACT
Mr. MUSKIE. Mr. President, more than 2 years in the wake of Justice Department efforts to prosecute Daniel Ellsberg for the disclosure of the Pentagon papers history of our involvement in Vietnam, the administration put forward a bill (S. 1400) which would have recodified the Federal Criminal Code.
Hidden deep in that lengthy and complex legislative proposal were five sections which, taken together, would have established in peacetime a system of governmental censorship that a democracy could hardly tolerate in a time of war.
That proposal went far beyond any laws which we have ever had even during the emergencies of World War I and World War II in that the proposal would have given the Government the power to prosecute newsmen not only for revealing what they determine the public should know, but just for possessing information the Government says they should not have, it constituted no less than a "National Secrets Act."
S. 1400 died without action in the 93d Congress. It has, however, found a successor in S. 1 which is presently before the Senate Judiciary Committee.
While there have been improvements in S. 1 from the version which was offered in the last Congress many of its sections — particularly those dealing with the revision of the espionage laws — raise serious questions affecting the first amendment rights of the press in a democracy and the need for that fourth estate of Government to keep a watchful eye on the operations of the other three.
Under the new proposal, a reporter who catches the Government in a lie, who uncovers fraud, who unearths examples of monumental waste, could go to jail.
Such a law would force journalists to rely upon self-serving press releases manufactured by timid bureaucrats — or risk going to jail for uncovering the truth.
A former member of my staff, Mr. Dan Lewis, who is now practicing law in Washington, and who is very familiar with the proposed revisions in the Federal Criminal Code has prepared a memorandum which discusses each of the problems posed by the administration proposal. It is worth noting some of the observations he makes in his study.
For example, section 1123 of S. 1 would forbid communications which are defined to include any act of making information "available by any means to a person or to the general public."
Therefore, giving this information to a newsman and its publication by the press or electronic media would constitute a felony.
The newspaperman, the editor, the press man, even the newspaper delivery would commit a crime under this section. In fact, anyone who aided in making the communication would be considered an accomplice.
Newspaper publishers and television station owners would be no less covered by the act for the crimes of their agents. Under such a proposal if information were properly obtained from a foreign government or from a foreign press source or even from direct observation, it would fall within the proscriptions of this section.
For example, if a journalist printed information about the secret U.S. bombing in Cambodia during the Vietnam war and that information had not been officially released, such a press report would be a crime, even if the journalist obtained the information by his own direct observation or through a foreign press report.
Even more important, certain sections of this bill would make the act of communicating certain information a crime even if such communication was made with no intent to harm the United States or to aid its enemies: The act requires no mens rea or the intent to do wrong which is fundamental to our criminal law.
While the objectives of S. 1 were to simply recodify the existing Federal criminal law, we find the scope of the proposed National Secrets Act to bear little resemblance to existing espionage laws which generally limit criminal prosecution to espionage as it is traditionally understood. The present espionage laws have been limited by the Congress and the courts to cover specifically enumerated types of vital secret information; to require that persons charged have intended to injure the United States, or have an intent to do wrong; and that they be applied to the transmission of information which would in fact cause an "injury" to the United States or be used to the advantage of a foreign nation.
The limitations in the present law were reaffirmed by former Attorney General Elliot Richardson when he testified before my Subcommittee on Intergovernmental Relations on the predecessor to S. 1, S. 1400. Those hearings were held jointly with the Judiciary Subcommittees on Administrative Practice and Procedure and Separation of Powers. At that time the Attorney General disavowed support of any espionage laws insofar as they imposed criminal penalties upon journalists without a finding of intent to harm the United States, and insofar as they did not limit the information covered to specifically enumerated categories of Defense information or information which a person would believe should not be released because it could injure the United States.
It is encouraging to see that the present Attorney General Edward Levi also has expressed some concern for the breadth of the proposal before the Judiciary Committee.
For several weeks now, members of my staff and those of the staffs of Senators HART, BAYH, and CRANSTON have been working with representatives of newspaper, broadcast and other interested organizations to fashion a workable alternative to the administration's proposal. Their efforts have also been met with interest by representatives of the Department of Justice.
We are hopeful that those efforts will produce an amendment to S. 1 which can provide the protection of legitimate secrets in the interests of our national defense and foreign policy without stifling or threatening with prosecution a probing and aggressive media which is so essential to our open form of democracy.
Mr. President, I ask unanimous consent that a memorandum, entitled "The National Secrecy Act Provisions of S. 1, the Proposed Revision of the Federal Criminal Code, be printed in the
RECORD.
There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:
THE NATIONAL SECRECY ACT PROVISIONS OF S. 1, THE PROPOSED REVISION OF THE FEDERAL CRIMINAL CODE
The proposed recodification and revision of the federal criminal code, introduced in the Senate as S. 1 (94th Cong., 1st Sess.), contains several new or expanded criminal offenses which, when taken together, would create a broad and effective National Secrecy Act. These totally new and unprecedented federal crimes would give the Executive Branch the authority to control inside and outside the government the dissemination of almost all information concerning national defense and national security matters. It would do so by making it a crime for anyone to communicate defense related information which has not been officially released by the government to unauthorized persons outside of the government such as newsmen, publishers, broadcasters, and the public.
The National Secrecy Act would give the Executive Branch the discretion to prosecute, and, if successful, jail those who release, discuss, or even just retain defense related information critical of the government even if such information would do no more than expose government corruption, waste, unlawful acts, or mismanagement, and even if the person communicating such information did so as part of their traditional exercise of free speech and with the intent to strengthen the nation by exposing such wrongs.
By making much of present investigative reporting of national defense issues criminal acts, these National Secrecy Act provisions would provide the Executive Branch the opportunity to jail journalists who did not reveal the sources of unauthorized defense information and to place blanket, secret wiretaps on journalists suspected of receiving such information.
In spite of some claims by their proponents, these criminal provisions are not merely the recodification of existing law or its interpretation by the courts. Rather, they are a dramatic and unprecedented expansion of the criminal powers of the federal government to provide pervasive press censorship whose only equal in American history are the short-lived and discredited Alien and Sedition Acts.
I. THE EXPANSION OF THE ESPIONAGE LAWS TO COVER UNAUTHORIZED REPORTING OF NATIONAL DEFENSE MATTERS
1. Proposed section 1123
The most sweeping proposed expansion of the coverage of the espionage laws and of the control of free speech is contained in proposed section 1123 of S. 1, which is misleadingly labelled "Mishandling Defense Information". This section makes it a felony, punishable by imprisonment of up to seven years, for any person, inter alia, to communicate to an "unauthorized" person any "national defense information" which has not been officially released §1123(a) (1) (A) and (2) (A).
A felony is committed under this section whenever any of this national defense information which has not ''been made available to the public pursuant to authority of Congress or by the lawful act of a public servant", §1128(f), is communicated to an unauthorized person, which is defined as anyone who, under statute, executive order or regulation, does not have specific authority to have such information, §1128(a). Whenever defense information, other than information which leaves the government with official blessing, is communicated to or among those outside of the government, it is a crime.
The scope of this new felony is sweeping. "National defense information" is broadly defined to include nonpublic information that "relates to", inter alia, the United States' "military capability", "military planning or operations", "military weaponry, weapons development, or weapons research", "intelligence operations, activities, plans, estimates, analyses, sources or methods", and "in time of war, any other matter involving the security of the United States that might be useful to the enemy". §1128(f) (1), (2), (5), (6), and (10). None of this information must be classified in order to be covered by section 1123.
During peacetime this definition would include information related to practically all of the activity within the Defense Department, the Central Intelligence Agency, and other intelligence agencies. During war, practically anything involving military, economic, or diplomatic affairs would be included since the word "security" has been chosen for section 1128(f) (10); this term is far broader than "national defense" which, when used in the espionage laws, has been broadly construed by the courts. Gorin v. U.S., 312 U.S. 19, 23–25 (1940) .
Section 1123 forbids "communication"; this is defined to include the act of making information "available by any means, to a person or to the general public;" § 111. Thus, giving this information to a newsman and its publication by the press or electronic media would be a felony. The newspaperman, the editor, the pressman, even the newspaper delivery boy would commit a crime. Anyone who aided in this communication would be an accomplice, § 401; and newspaper publishers and television station owners would be liable for the crimes of their agents, § 402.
But publication is not required for this offense; even secret briefings of reporters or others would be a criminal act. And conversations between citizens containing such information would also become criminal.
The scope of this felony is so broad, it encompasses the communication of national defense information to unauthorized persons even if such information does not appear to or actually did not originate from a government source. If a government employee improperly discloses information which is subsequently published, all others who republish or communicate this information commit felonies, even if such persons have no belief or reason to believe that such information was improperly disclosed.
In addition, such information, even if properly obtained from foreign governments, from the foreign press or from direct observation, would still fall within the scope of this provision. For example, if information about secret U.S. bombings in Cambodia during the Vietnam war was not officially released, any reporting from journalists about such bombing, either through direct observation or foreign press reports, would be a crime.
This felony thus covers not only harmful "leaks" and justifiable "leaks", but also any discussion of nonofficial defense information.
Both those persons inside the government who have proper access to national defense information and those outside the government are fully liable to these penalties, § 1123(a) (1) and (2).
Most importantly, the act of communication is a crime under Section 1123 even if such communication is made with no intent to harm the United States or to aid its enemies. This crime requires none of the traditional mens rea or the intent to do wrong of the criminal law. In fact, a felony appears to be committed even if a person "communicates" this information by mistake or accident. And there is no requirement in this section that the information be the type which, if communicated to our adversaries, would actually or even possibly cause injury to the U.S.
In addition to penalizing communication, this section makes it a crime for any unauthorized recipient of this information to fail to deliver it promptly to the appropriate government official. § 1123(a) (2) (B). As discussed below, if a holder of the information returns the information, but refuses to divulge its source, that person could be jailed for contempt. Thus, a recipient of this type of information becomes a criminal if he or she either communicates it to anyone unauthorized to receive it, or just keeps the information and fails to report its divulgence.
Under this section, only those individuals who the government "authorizes"can communicate information concerning almost all aspects of our national defense; others do so as criminals subject to incarceration unless they restrict themselves to communicating that defense related information which the government has officially released. This expansion of the espionage laws transforms them from discrete crimes which penalize those individuals who injure the nation by giving military secrets to our enemies into a system of control, enforced by criminal sanctions, over the discussion and debate of all defense related information.
2. Proposed section 1121
Other sections of S. 1 substantially expand the existing espionage laws far beyond the prohibition of activities undertaken to harm the U.S. or to aid its enemies. For example, Section 1121, the central espionage section, would make it a felony to collect or obtain any "national defense information", knowing that it "may" be communicated to a foreign power. § 1121(a) (2). This would cover a reporter whose investigation of defense or intelligence affairs "may" some day be published or broadcast and "may" be heard or read by foreign intelligence analysts.
As in Section 1123, no intent to harm the U.S. or aid its enemies is required for conviction. Nor is Section 1121's coverage limited to top secret military information or information whose release would injure the U.S.; instead, it covers the broad scope of "national defense information" not released by the government as discussed above.
The only limitation contained in Section 1121 on this new crime of investigative reporting about our national defense is that, in order to be liable, a journalist must know that the information he collects or obtains "may be used to the prejudice of the safety or interest of the United States, or to the advantage of a foreign power". § 1121(a) (emphasis added). What does this standard mean? Certainly, it is not a requirement that the collector of information intend to injure the U.S., or that, as under present law, the collector believe "the information is to be used to injure the United States", 18 U.S.C. § 793(a) (emphasis added).
This new felony provision merely requires that the journalist understand that it is possible at some time in the future that the information may "prejudice" an "interest" of the U.S. The words "prejudice" and "interest" are not defined, but they would appear to encompass anything embarrassing or critical of the U.S. defense effort, including instances of corruption, policy failure, perjury by high government officials, illegal acts, and waste. No matter what the long-term effects, any possible immediate diplomatic, economic, or political setback appears to fall within this standard.
3. Proposed section 1122
Section 1122 of S. 1 also uses this weak, undefined standard of prejudicing an interest of the U.S. to delineate the scope of unofficial national defense information which cannot be communicated to unauthorized persons. This section, as does Section 1123, penalizes both government employees and private citizens for communicating or publishing such information regardless of the legitimacy of its source and the intent of the communicator.
Section 1122's limitation on the type of defense information covered to that which "may" prejudice an interest of the United States is totally superfluous, since all communication of any such information to unauthorized persons is forbidden under Section 1123.
The scope of these three provisions would permit the Executive Branch to control practically all discussion and debate over U.S. military and intelligence activities. Only communication of official information – press releases, statements and speeches of officials, agency briefings, and other information officially made public would be legal. All other defense information, no matter what its source, would be illegal to communicate or to possess without return to the government.
4. The scope of existing law
The scope of this proposed National Secrecy Act, of course, bears little resemblance to the existing espionage law covering these acts, 18 U.S.C. § 793(a)–(e), which generally limit criminal prosecution to espionage as it is traditionally understood.
First, these existing laws are limited in scope to cover specifically enumerated types of vital, secret information such as weapons plans, defense strategy, codes, maps, and other precisely defined information the divulgence of which would cause severe injury to the U.S. military posture. In addition, some of these sections use a residual phrase to cover other defense related information, but limit the scope of such information to that "which the possessor has reason to believe could be used to the injury of the United States or advantage of any foreign nation". 18 U.S.C. § 783(d) and (e). Thus, the present espionage laws are limited to the transmission of information which would seriously injure the defense of the U.S. if such information were made available to our enemies.
Second, conviction under the espionage laws requires that the person charged intend to injure the United States; the accused must have acted with the traditional criminal scienter or intent to do wrong.
Third, the courts have indicated that Congress, in order to avoid press censorship and an infringement over public debate of defense issues, limited those parts of these espionage provisions which reach acts by non-government employees so that they exclude coverage of "publication" of information; these sections are instead found by the courts to be directed only to the clandestine transmission of defense secrets to foreign powers:
"It will be noted that the word 'publication' does not appear in this section [18 U.S.C. § 793(e) ]. The Government contends that the word 'communicate' covers the publication by a newspaper of the material interdicted by the subsection. A careful reading of the section would indicate that this is truly an espionage section whereas what is prohibited is the secret or clandestine communication to a person not entitled to receive it where the possessor has reason to believe that it may be used to the injury of the United States or the advantage of any foreign nation."
U.S. v. New York Times Co., 328 F. Supp. 324, 328-29 (S.D.N.Y., 1971), reversed on other gds, 444 F.2d 544 (2d Cir., 1971), affirmed, 403 U.S. 713, 721 (1971) (Justice, Douglas concurring). See also, Edgar &; Schmidt, supra, at 1032-38.
Fourth, these provisions are limited in scope to the transmission of information which would cause an "injury" to the U.S. or would be used to the "advantage" of a foreign nation, 18 U.S.C. § 793.
These limitations on the espionage laws are the result of prolonged and detailed consideration by Congress during World War I, World War II, and the Cold War of the balance which must be maintained between the necessity of keeping certain military information secret and the requirements of free, speech and a free press. Congress tailored the scope of the espionage offenses to fit the crime of espionage and no more. And, as our history has demonstrated, these provisions have served our defense needs adequately while permitting the necessary and beneficial vigorous and free debate over defense matters.
These precise limitations on the scope of the existing espionage laws were specifically reaffirmed by Attorney General Elliot Richardson when, on behalf of the Administration, he testified before the Senate on their proposed expansion. In testimony during the 93rd Congress on S. 1400, the Nixon Administration's proposed federal criminal code revision, the Attorney General repudiated the sweep of Sections 1121-26 of that bill which are very similar to the proposed espionage sections of S. 1.
The Attorney General disavowed support of any espionage laws insofar as they imposed criminal penalties upon journalists without a finding of intent to harm the U.S. and insofar as they did not limit the formation covered to specifically enumerated categories of defense information or to information which a person would believe should not be released because it could injure the U.S. Hearings on S. 1142, S. 858, S. Con. Res, 30, S.J. Res. 72, S. 1106, S. 1520, S. 1923, and S. 2073 before the Subcommittees on Administrative Practice and Procedure and Separation of Powers of the Senate Committee on Judiciary and the Subcommittee on Intergovernmental Relations , the Senate Committee on Government Operations, 93rd Cong., 1st Sess., Vol. 2, at 262-63.
In addition to these espionage provisions, 18 U.S.C. § 793, which fully protect our military secrets, the federal criminal code contains other, broad provisions to prevent any transfer of vital defense information to our enemies:
18 U.S.C. § 952, forbidding government employees to publish or to transmit to unauthorized persons any diplomatic or military code or any diplomatic or military material that has been encoded.
18 U.S.C. § 954, forbidding any person from knowingly making untrue statements under oath which that person has reason to believe will influence a foreign government and thereby injure the United States.
18 U.S.C. § 794, forbidding any person to gather or deliver defense information to any foreign government with the intent or reason to believe that is to be used to the injury of the United States or the advantage of a foreign government.
II. THE CREATION OF A CRIME FOR THE UNAUTHORIZED RELEASE OF ANY CLASSIFIED INFORMATION
Section 1124 of S. 1 also creates a felony for the act of communicating any classified information to an unauthorized person. §1124(a). Thus, any release or discussion by government officials of any classified material with unauthorized persons becomes a crime. Those who leave government, in protest or otherwise, can also never divulge this information. § 1124 (a) .
A felony is committed if the government merely asserts that the information was properly classified; there is no judicial review of this assertion. § 1124(c) (2). The actual fact that the information was improperly classified is specifically eliminated as a defense to prosecution under this section. § 1124(e).
Under Section 1124, no intent to injure the U.S. or aid its enemies is required; communication alone is sufficient.
Any information which is classified, properly or improperly, is covered. § 1128(b). The material is not required actually to deal with defense secrets or national security matters; it need only have been classified for "reasons of national security". Id.
The thousands of bureaucrats who can classify information would have the power to define the scope of this crime simply by stamping material classified. Regardless of the propriety of their actions, they can place government information beyond the reach of the public and the press and make it a crime to release such information. The massive overclassification of information would be reinforced with the harsh force of criminal law. By preventing release of such information by those who have left government, the classification system can be used to permanently cover-up fraud, waste, mismanagement, illegal acts, and official perjury.
This felony does not cover communication of classified information by those who are unauthorized to possess it, § 1124(a) , and it excludes recipients of the information from prosecution as accomplices or co-conspirators, § 1124(b). This apparent exemption for journalists and others, however, has little meaning.
First, if the classified information relates in any way to defense matters, as most of it will, the recipient will commit a crime under the expanded espionage laws if he either keeps the information or communicates it, §§ 1121, 1122, and 1123.
Second, a recipient can be sent to jail for refusing to disclose the source of the information. If, for example, a reporter publishes a story using classified information, he either could be sent to jail or forced to reveal the source; the latter act would end any future sources and send the past source to jail.
Thus, under Section 1124, a reporter may be able to avoid a conviction; but he cannot avoid either jail himself or prosecution of his source.
Section 1124 also provides an affirmative defense to government employees prosecuted under this section if (1) the divulged information was not lawfully subject to classification, and (2) the employee attempted to have it declassified through existing administrative procedures. § 1124(d) (2). This exemption is almost totally meaningless, since every government employee fully realizes that attempts to declassify material which may involve the bureaucratic cover-up of corruption, waste, incompetence or illegal acts will only terminate any career advancement and spotlight the source of any subsequent unauthorized disclosure.
As in the case of the proposed espionage laws, Section 1124 represents an unprecedented and dramatic expansion of existing law. Under present law, prosecution for disclosing classified information is carefully and properly limited in one of two ways: it is either confined to specifically enumerated categories of information related to important military and intelligence secrets, 18 U.S.C. § 798, or it is confined to the giving ofany classified information to a foreign government or a communist organization, 50 U.S.C. § 783(b).
III. THE EXPANSION OF THE FEDERAL CRIME OF THEFT TO INCLUDE THE TAKING OF IDEAS AND INFORMATION
S. 1 contains several provisions which could make the obtaining by reporters of information from the federal government a crime by including such acts within the definition of the theft of property.
For example, if a person obtains or uses government property with intent "to appropriate the property to his own use," he commits theft, § 1731(a) (2) and (c) (2). Property includes government records or documents, § 1731(b) (2) (B) (11.1), "intangible property" and "anything of value resulting from a person's physical or mental labor or skill," § 111 (definitions of "property" and "services").
Thus, it appears that any ideas, thoughts, programs, or concepts created by government officials and orally communicated to reporters or copied from documents for publication could be considered a theft.
And Section 1344 of S. 1 makes it a crime "to remove" a government record; neither intent to keep the document or to appropriate it for one's own use, as traditionally required, are elements of this crime. Unauthorized removal of a government record by an official or by a reporter for reading or copying could be a crime.
IV. FORCED DISCLOSURE OF NEWS MENS' SOURCES
The enactment of the National Secrecy Act provisions of S. 1 discussed above transforms much of present legitimate investigative reporting of defense and foreign affairs into criminal acts. By so doing, these provisions will not only permit the government to prosecute those who disseminate unfavorable defense information, but they will also provide the government, through the use of grand juries and wiretaps, with enormous leverage to ferret out and prosecute those who provide such information to newsmen. This power to eliminate the flow of unofficial information is a necessary part of an effective National Secrecy Act. And with it, the politically difficult prosecution of newsmen would not always be necessary in order to silence critics.
1. The use of grand juries to force disclosure of confidential news sources
Under S. 1, once classified information or national defense information which has not been officially released appears in the media, it is apparent that a crime has been committed; this information must have been either stolen or illegally communicated. The mere publication of the information is prima face evidence of a felony.
If the published information is national defense information, the reporter has committed a crime by publishing it and not returning it to the government. Immunity can be granted to the reporter to find out who released the information. If the information is classified and not national defense information, the reporter will not have committed a crime, and no immunity need be granted to force disclosure of the source.
In either circumstance, the communication of the information to the reporter was a criminal act. The reporter must necessarily have been a witness to the felony, and he will probably be the only witness. Certainly, the reporter will be the only witness which the government can easily identify. The government can convene a grand jury, call before it the reporter who published the information, and demand he identify the source who is a felon. The reporter must divulge his source or go to jail for contempt.
Under the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the newsman is provided no constitutional protection to keep the source of information confidential or to refuse to reveal its contents. In fact, in Branzburg the Court clearly stated that of all the possible situations which may warrant First Amendment protection for the confidentiality of newsmens' sources, the one instance which merited no protection whatsoever was when a reporter refused to identify a person who actually committed a crime. Justice White, writing for a majority of the Court, stated:
"Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question." (408 U.S. 665 at 692.)
This passage from Branzburg makes it almost impossible for any lower court to hold that a reporter's failure to divulge the source of his information is privileged from disclosure when such information conceals the identity of a felon under the National Secrecy Act.
Based upon Branzburg, the federal courts have already begun rendering decisions against reporters' claims made before grand juries of a privilege not to reveal news sources. See, e.g., In re Lewis, 501 F.2d 418 (9th Cir. 1974). Even in a civil libel action against a reporter, these claims of privilege have been rejected. Carey v. Hume, 402 F.2d 631 (D.C. Cir., 1974).
Without a federal newspaperman's shield law, the only protection a journalist has from forced disclosure of his sources before a federal grand jury are the Attorney General's guidelines which limit the use of reporters' compulsory testimony to certain situations. Yet these guidelines would clearly permit the forced disclosure of the sources of such information under the National Secrecy Act offenses.
In order to issue a subpoena requiring the presentation of evidence before a grand jury, these guidelines require that other evidence indicate that a serious crime was committed, that the information sought is essential to the prosecution, that it is not available from nonpress sources, and that the subpoena be limited in time and scope to the criminal action involved. Hearings on S. 36, S. 158, S. 318, etc. before the Subcommittee on Constitutional Rights of the Senate Judiciary Committee 93rd Cong., 1st Sess., p. 699. Under these criteria, a journalist would have no protection, and a federal prosecutor would have no barrier to seeking the identity of the reporter's source before a grand jury, and from seeking a citation for criminal contempt for non-cooperating newsmen.