Criminal Prohibitions on the Publication of Classified Defense Information – Jennifer K. Elsea, Legislative Attorney, June 24, 2013

“The publication of classified information related to National Security Agency (NSA) surveillance activity is the latest in a series of leaks to the press that has riveted Congress’s attention. Press reports describing classified U.S. operations abroad have led to calls from Congress for an investigation into the source of the leaks, and Attorney General Holder appointed two special prosecutors to look into the matter. The 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 had already focused attention on whether such publication violates U.S. criminal law. The suspected source of the WikiLeaks material, Army Private Bradley Manning, has been charged with a number of offenses under the Uniform Code of Military Justice (UCMJ), including aiding the enemy, while a grand jury in Virginia is deciding whether to indict any civilians in connection with the disclosure. A number of other cases involving charges under the Espionage Act, including efforts to extradite Edward Snowden in connection with the leak of NSA documents pertaining to certain surveillance programs, demonstrate the Obama Administration’s relatively hardline policy with respect to the prosecution of persons suspected of leaking classified information to the media. This report identifies some criminal statutes that may apply to the publication of classified defense information, noting 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 unlawful while present in the United States.”