Criminal Prohibitions on the Publication of Classified Defense Information Jennifer K. Elsea

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Published: September 9th 2013

Kindle Edition

58 pages


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Criminal Prohibitions on the Publication of Classified Defense Information  by  Jennifer K. Elsea

Criminal Prohibitions on the Publication of Classified Defense Information by Jennifer K. Elsea
September 9th 2013 | Kindle Edition | PDF, EPUB, FB2, DjVu, audiobook, mp3, ZIP | 58 pages | ISBN: | 4.53 Mb

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.

operationsMoreThe 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 source of the WikiLeaks material, Army Private Bradley Manning, has been sentenced to 35 years’ imprisonment for a number of offenses under the Uniform Code of Military Justice (UCMJ), but was not convicted of aiding the enemy.

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 unlawfully while present in the United States.

While prosecutions appear to be on the rise, leaks of classified information to the press have relatively infrequently 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 discusses 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 provides a summary of previous legislative efforts to criminalize the unauthorized disclosure of classified information.



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