Unauthorized Disclosure of Classified Information

Disclosure of classified intelligence to the general public or to a foreign entity can be a serious matter of national security. Following the terrorist attacks of September 11, 2001, President George W. Bush provided the following statement about guarding classified information:

"Any sources and methods of intelligence will remain guarded in secret. My administration will not talk about how we gather intelligence, if we gather intelligence, and what the intelligence says. That's for the protection of the American people."

Whether Americans agree that keeping select information secret is best for the American people or not may be an open question. Yet, unauthorized disclosure of classified information in the United States is a crime under the Espionage Act and several other federal statutes. Those who violate such crimes against the government face severe criminal sanctions.

Read on to learn more about the unauthorized disclosure of classified information. This article will provide an overview of federal crimes in this area. It will also provide a case example and information on where to go for more information or legal help.

Unauthorized Disclosure Law Explained

Under Title 18 of the U.S. Code, Section 798 (Disclosure of Classified Information), federal law prohibits the knowing and willful disclosure of classified information.

A person is in violation of the law if their actions are knowing and willful and involve any of the following acts disclosing classified information:

• Communicate, furnish, transmit, or otherwise make it available to an unauthorized person
• Publish it
• Use it in a way that is either prejudicial to the safety or interest of the U.S., or for the benefit of any foreign government to the detriment of the U.S.

The criminal penalties for a conviction of unauthorized disclosure include up to 10 years in prison, a large fine, or both.

Classified Information Defined

It is important to understand the type of confidential information covered by the statute. For purposes of this statute, classified information:

• Concerns the nature, preparation, or use of any code, cipher, or cryptographic system of the U.S. or any foreign government
• Concerns the design, construction, use, maintenance, or repair of any device used, prepared, or planned for use by the U.S. or any foreign government for cryptographic or communication intelligence purposes
• Concerns the communication intelligence activities of the United States or any foreign government
• Is obtained by the processes of communication intelligence from the communications of any foreign government

Classified information is information designated by a U.S. Government Agency or another part of the intelligence community for restricted dissemination. The restrictions are for reasons of national security. An intelligence agency may create classified information. A government contractor may receive it. In any case, unlawful release of such information would damage national security.

The government has different ways it labels information as classified. The President sets forth the classification process by executive order. The order directs executive branch agencies in safeguarding, classifying, and declassifying confidential or sensitive information. President Obama issued the most recent executive order in this area (E.O. 13,526). It includes three levels of classification:

• Top Secret, which is the highest level
• Secret, which would cause "serious damage" if released
• Confidential, which is the lowest level

The President delegates his authority to classify documents to various executive agency directors and staff. Thus, an original classification authority may be the Director of the CIA or other intelligence agency. The Information Security Oversight Office at the National Archives oversees the procedures for classifying and declassifying documents. They provide directives and instructions to address maintaining classification status and also set the process to move toward unclassified status.

Dissemination of information classified at any of these levels could lead to criminal charges. Caselaw provides that a claim of improper classification of the information is not a defense.

Who Investigates Disclosure Crimes?

Who investigates the illegal disclosure of classified material and other restricted data? It depends. There are several investigatory agencies under the U.S. Attorney General. Investigations may begin with the FBI or the National Security Section of the U.S. Department of Justice (DOJ). Given the high profile of such crimes, the local U.S. attorney's office may also lead an inquiry.

If the investigation results in probable cause for a violation of disclosure statutes, it will proceed to the DOJ. Federal prosecutors will review and present the case to the federal grand jury for indictment. After indictment, the case will proceed to trial in federal court. A defendant can retain a criminal defense attorney at any time. If a defendant is indigent, the court can appoint an attorney to provide a defense.

Other Key Federal Statutes

There are several statutes that prohibit disclosure of classified information, national defense information, and national security information. The following are three other federal laws that prohibit disclosure of classified information.

Gathering, Transmitting, or Losing Defense Information (18 U.S.C. Section 793)

This law is part of the Espionage Act. It prohibits disclosures of information and items related to the national defense. The government must show an intent to injure the United States or to advantage any foreign nation. This law prohibits purposeful conduct.

It also prohibits anyone entrusted with such information from allowing the removal, loss, theft, or destruction of the information through gross negligence. Anyone with knowledge that a removal, loss, theft, or destruction has occurred must promptly notify a superior officer. The penalty for a conviction for a violation includes up to 10 years in prison, a fine, or both.

Gathering or Delivering Defense Information to Aid Foreign Government (18 U.S.C. Section 794)

This Espionage Act statute prohibits the conduct most associated with spying. This law prohibits disclosures of national defense information to any foreign government or its agents with intent to injure the United States or to advantage any foreign nation. Upon conviction, violation of its provisions can lead to a prison sentence of any number of years up to life, a fine, or both. In certain circumstances, such as at a time of war, an offender can receive a death sentence.

Unauthorized Removal or Retention of Classified Documents or Materials (18 U.S.C. Section 1924)

This statute relates to public officers and employees, making it illegal for such officers and employees to remove documents and materials that have classified information to an unauthorized location with the intent to retain them. The law also applies to government contractors and consultants, focusing on persons who may have obtained the classified documents or materials in the first place as part of their duties, but then removed the items without authorization to a separate location.

This statute defines classified information of the United States as:

• Information originated, owned, or possessed by the United States government
• Concerning the national defense or foreign relations of the United States
• That have been determined pursuant to law or executive order to require protection against unauthorized disclosure in the interest of national security

Violations of law can lead to a sentence of up to 5 years in prison, a fine, or both.

Protection of classified information related to civilian and military nuclear materials falls under a different statute. That responsibility belongs to the Nuclear Regulatory Commission (NRC) pursuant to the Atomic Energy Act of 1954. (42 U.S.C. Section 2201 et seq.) The NRC identifies two classification types:

• National security information
• Restricted data

National security information will come from an executive order. It represents information that, if disclosed, would cause damage to national security. Restricted data gets its classification from the Atomic Energy Act. It includes data that, if disclosed, would provide details related to the design, manufacture, and use of nuclear weapons.

Case Example: Unauthorized Disclosure of Classified Information

Past criminal prosecutions include persons who leaked government information to third parties. This could be the media or the public.

In 2008, Chelsea Manning completed basic training and became an intelligence analyst for the U.S. Army. In that capacity, Manning had a security clearance and access to classified national security information. She signed two nondisclosure agreements with the government. The agreements indicated knowledge of the rules related to classified information.

Deployed by the Army to Iraq in 2009, Manning began leaking classified information and documents to Wikileaks in early 2010. Estimates place the number of documents leaked at over 700,000. They included airstrike videos, army reports, and diplomatic cables related to the war.

Many saw Manning as a whistleblower. They alleged several of the documents and videos demonstrated violations of the rules of military engagement, including the killing of civilians. Manning pled guilty to several charges and was found guilty of others at a court-martial trial in 2013. Her convictions included Espionage Act counts for transmitting defense information. The court found that she knew such information could be used to injure the United States or advantage a foreign nation.

In an appeal, Manning sought an exception to the law based on First Amendment rights as a whistleblower. The appellate court rejected the claim. It found her communications related to national defense and were willful. It stated that the First Amendment cannot act as a shield to immunize such misconduct.

Sentenced to 35 years in prison, Manning's sentence was commuted after seven years by President Obama. He stated that it was disproportionate to the punishment others received in similar circumstances.

Additional Resources

• Classified Information Procedures Act (CIPA) (Department of Justice)
• Information Security Oversight Office (National Archives)

Need More Information on Unauthorized Disclosure of Classified Information? Get Legal Help

Leaking classified government intelligence to the public is not the only way to end up charged with a federal crime. There is a wide range of actions involving classified information that may lead to criminal charges. If you're being investigated or have been charged with a federal crime, contact a qualified criminal defense attorney to learn about your rights and options. As an expert in criminal law, they can help you achieve the best outcome possible.