[THIS COULD BE PUT FORWARD AS SECTION 791 OF CHAPTER 37 OF TITLE 18 OR AN AMENDMENT TO THE "BABY ESPIONAGE" PROVISION FOUND AT 50 U.S.C. 783.]

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06230287
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 4
• Document Creation Date: December 28, 2022
• Document Release Date: June 26, 2018
• Case Number: F-2008-01274

Approved for Release: 2018/05/16 C06230287
[This could be put forward as Section 791 of Chapter 37 of
Title 18 or an amendment to the "baby espionage" provision
found at 50 U.S.C. 783.]
Section UNAUTHORIZED DISCLOSURE
(a) PRoxiBiTioN.--Whoever, being an officer or employee of
the United States, a former or retired officer or employee
of the United States, any other person with authorized
access to classified information, or any other person
formerly with authorized access to classified information,
knowingly and willfully discloses, or attempts to disclose,
with intent or reason to believe that the disclosure will
harm national security, any classified information involving
or relating to foreign intelligence, counterintelligence, or
covert action and acquired as a result of such person's
authorized access to classified information to a person
(other than an officer or employee of the United States) who
is not authorized access to such classified information,
knowing or having reason to know that the person is not
authorized access to such classified information, shall be
fined not more than $10,000, imprisoned not more than 3
years, or both.
(b) LimITATIoN.�Nothing in this section shall be construed
to apply to the press.
(C) DEFINITION.�Ill this section:
(1) the term "authorized", in the case of access
to classified information, means having authority or
permission to have access to, the classified information
pursuant to the provisions of a statute, Executive Order,
regulation, or directive of the head of any department or
agency who is empowered to classify the information, an
order of any United States court, or a provision of any
Resolution of the Senate or Rule of the House of
Representatives which governs release of classified
information by the respective House of Congress; and
(2) the term "officer or employee of the United
States" means civil officers and employees (as defined in
sections 2104 and 2105 of Title 5) and officers and enlisted
members of the armed forces (as defined in section 1010 of
Title 10); and
(3) the term "classified information" means
information or material designated and clearly marked or
represented, or that the person knows or has reason to
believe has been determined by appropriate authorities,
pursuant to the provisions of a statute or Executive Order,
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as requiring protection against unauthorized disclosure for
reasons of national security; and
(4) the term "foreign intelligence" means foreign
intelligence as defined in section 3 of the National
Security Act of 1947, as amended (50 USC 401a); and
(5) the term "counterintelligence" means
counterintelligence as defined in section 3 of the National
Security Act of 1947, as amended (50 USC 401a); and
(6) the term "covert action" means covert action as
defined in section 503(e) of the National Security Act of
1947, as amended (50 USC 413b).
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18 �793
Note 9
and �� 791, 792, 794, 2388 and 3241 of
this title]. U.S. v. American Socialist
Soc., S.D.N.Y.1919, 260 F. 885, affirmed
266 F. 212, certiorari denied 41 S.Ct. 12,
254 U.S. 637, 65 L.Ed. 451.
Statute prohibiting anyone with docu-
ments relating to the national defense
from wilfully delivering them to any per-
son not entitled to receive them applied
to conduct of government employee in
"leaking" information to a British maga-
zine. U.S. v. Morison, D.C.Md.1985, 604
F.Supp. 655, appeal dismissed 774 F.2d
1156.
Statute prescribing punishment for one
who "permits" classified information to
be removed from proper place of custody
does not necessarily imply the involve-
ment of third party, and statute applied to
accused who inadvertently removed clas-
sified materials along with personal ef-
fects from his desk. U.S. v. Roller, U.S.
Armed Forces 1995, 42 M.J. 264, certio-
rari denied 116 S.Ct., 676, 516 U.S. 1029,
133 L.Ed.2d 524.
10. Instruments or appliances
Evidence established that radar receiv-
ers, accessory power units and radar
transmitter repossessed from plaintiff by
Navy Department were "instruments" or
"appliances" "relating to national de-
fense" within this section. Dubin v. U.
S., Ct.CI.1966, 363 F.2d 938, 176 Ct.C1.
702, certiorari denied 87 S.Ct. 1019, 386
U.S. 956, 18 L.Ed.2d 103.
11. Elements of offense
There is no requirement of bad faith
purpose on part of accused under Federal
Espionage Act provision prohibiting will-
fully retaining classified information.
U.S. v. McGuinness, CMA 1992, 35 M.J.
149, certiorari denied 113 S.Ct. 1364,
507 U.S. 951, 122 L.Ed.2d 743.
Conduct prohibited by espionage stat-
ute presupposes compromise of classified
material through gross negligence by one
who has authorized possession of, or has
been entrusted with, the material by per-
mitting it to be removed from its proper
place of custody by third party. U.S. v.
Chattin, NMCMR 1991, 33 M.J. 802, re-
view granted in part 35 M.J. 208, af-
firmed 36 M.J. 374, certiorari denied 113
S.Ct. 1365, 507 U.S. 951, 122 L.Ed.2d
743.
In retaining classified documents
which accused had reason to know could
CRIMES Part 1
be used to the injury of the United States
or to the advantage of a foreign nation,
and by failing to return them to duly
authorized officer, accused violated pro-
vision of the Federal Espionage Act pro-
hibiting a person who has possession of
classified information from willfully re-
taining it and failing to deliver it. U.S. v.
McGuinness, NMCMR 1991, 33 M.S. 781,
review granted in part 35 M.J. 209, af-
firmed 35 M.J. 149, certiorari denied 113
S.Ct. 1364, 507 U.S. 951, 122 L.Ed.2d
743.
12. Knowledge and intent
Scienter, that is, intent or mason to
believe that information to be obtained is
to be used to injury of the United States,
or to advantage of any foreign nation, is
essential element under this section and
section 794 of this title. U.S. v. Enger,
D.C.N.J.1978, 472 F.Supp. 490.
13. Negligence
Accused's failure to safeguard classified
material after discovering that he had
removed it from its place of custody vio-
lated his continuing duty to safeguard
information when it was discovered and
taken away by unauthorized third parties;
while not authorized to have material
with him outside secure area, accused
was nevertheless entrusted with its care
once he discovered it was in his posses-
sion. U.S. v. Roller, NMCMR 1993, 37
M.J. 1093, review granted in part 39 MS.
385, affirmed 42 M.J. 264, certiorari de-
nied 116 S.Ct. 676, 516 U.S. 1029, 133
L.Ed.2d 524.
14. Injury
Under former �� 31 to 42 of Title 50
[now this section and �� 791, 792, 794,
2388 and 3241 of this title] providing for
the punishment of persons who obtain or
deliver information relating to the nation-
al defense with intent or reason to believe
that the information is to be used to the
injury of the United States, or to the
advantage of any foreign nation, the evil
punished was the obtaining or furnishing
of the guarded information either to the
hurt of the United States or to the gain of
another nation, and it was not necessary
to prove that the "advantage" to a foreign
nation was an advantage as against the
United States and that the information
obtained was to be used to the injury of
the United States. Gorin v. U.S.,
U.S.Ca1.1941, 61 S.Ct. 429, 312 U.S. 19,
85 1 Pei ARR rehearing denied 61 S.Ct.
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Ch. 37 ESPIONAGE AND CENSORSHIP
617, 312 U.S. 713, 85 L.Ed. 1144, rehear-
ing denied 61 S.Ct. 618, 312 U.S. 713, 85
L.Ed. 1144.
Actual harm or benefit need not be
proven by the Government before a ser-
vice member can be found guilty of espi-
onage activity in violation of statute;
Government need only prove that the in-
formation was intended to be used to
injure or advantage. U.S. v. Allen,
NMCMR 1990, 31 M.J. 572, review
granted in part 32 M.J. 222, affirmed 33
MS. 209, certiorari denied 112 S.Ct.
1473, 503 U.S. 936, 117 L.Ed.2d 617.
15. Diplomatic immunity
Unilateral action by the Union of Soviet
Socialist Republics in granting defen-
dants charged with espionage a diplomat-
ic rank of second secretary, whatever its
import within the Soviet Union, was of
no extraterritorial effect and did not con-
fer diplomatic immunity upon defendants
charged with espionage. U.S. v. Enger,
D.C.N.J.1978, 472 F.Supp. 490.
Even if United Nations employee had
received American diplomatic visa, such
circumstance per se would not be of deci-
sive importance in ruling on his claim of
diplomatic immunity from criminal pros-
ecution. U. S. v. Melekh, S.D.N.Y.1960,
190 F.Supp. 67.
An alien who was an employee of the
United Nations who was never notified to
the United States as attached to the Sovi-
et Embassy or recognized by Department
of State as one entitled to diplomatic im-
munity, who was not eligible to receive
American diplomatic visa, who did not
receive American visa, but who, on each
occasion when he received an American
visa, received a nondiplomatic one, was
not entitled to immunity from criminal
prosecution, notwithstanding facts that
his government had conferred diplomatic
rank upon him and that he had entered
United States on diplomatic passport. U.
S. v. Melekh, S.D.N.Y.1960, 190 F.Supp.
67.
Charter of the United Nations, art. 105,
granting to representatives of members
such privileges and immunities as are
necessary for independent exercise of
their function granted no immunity from
prosecution on indictment charging con-
spiracy to violate this section and � 951
of this title relating to representatives of
foreign governments against alien who
was employee of United Nations and
18 �793
Note 16
whose only claim to diplomatic immunity
came from original appointment to diplo-
matic rank by his government and from
diplomatic passport. U. S. v. Melekh,
S.D.N.Y.1960, 190 F.Supp. 67.
Third Secretary of the Ministry of For-
eign Affairs of the U.S.S.R., who had a
Soviet diplomatic passport bearing a
United States diplomatic visa, and who
was an employee of the United Nations,
was not clothed with diplomatic immuni-
ty, so as to be immune to prosecution for
conspiracy to violate and for violation of
this section, where he did not enter as an
emissary from the U.S.S.R. to the United
States, was never received as such, was
never attached to Soviet embassy, and
never acted in a diplomatic capacity in
United States. US v. Coplon, S.D.N.Y.
1950, 88 F.Supp. 915.
Certification by the Department of
State of the United States that Third Sec-
retary of the Ministry of Foreign Affairs
of the U.S.S.R. who was employed by the
United Nations, did not enjoy diplomatic
status in the United States so as to be
clothed with diplomatic immunity, was
binding on district court in prosecution
for conspiracy to violate and for violation
of this section. US v. Coplon, S.D.N.Y.
1950, 88 F.Supp. 915.
The status of a citizen of the Union of
Soviet Socialist Republics as employee of
United Nations conferred upon him no
privilege or immunity which would con-
stitute obstacle to his apprehension, trial
or conviction for offenses of conspiracy to
violate and of violations of this section.
US v. Coplon, S.D.N.Y.1949, 84 F.Supp.
472.
16. Title to or possession of appliances
Plaintiff's title to and possession of ra-
dar receivers and accessory power units
and radar transmitters which were in-
struments or appliances relating to na-
tional defense within this section were
completely vulnerable so that all that was
required to destroy them was demand for
possession by proper official. Dubin v.
U. S., Ct.C1.1966, 363 F.2d 938, 176 Ct.
Cl. 702, certiorari denied 87 S.Ct. 1019,
386 U.S. 956, 18 L.Ed.2d 103.
Under this section, plaintiff, though
lawfully in possession of government
property relating to national defense be-
cause of mistake made by government
employees, had no right to keep posses-
sion of the property, and his keeping it,
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18 �793
Note 1
1144, rehearing denied 61 S.Ct. 618, 312
U.S. 713, 85 L.Ed. 1144.
Former � 31 of Title 50 [now this sec-
tion], construed as presenting a question
of fact for determination of the jury re-
garding what was or was not connected
with the "national defenses", did not vio-
late U.S.C.A.Const. Amends. 5 and 6.
Gorin v. U.S., U.S.Ca1.1941, 61 S.Ct. 429,
312 U.S. 19, 85 L.Ed. 488, rehearing de-
nied 61 S.Ct. 617, 312 U.S. 713, 85 L.Ed.
1144, rehearing denied 61 S.Ct. 618, 312
U.S. 713, 85 L.Ed. 1144.
Former �� 31 to 42 of Title 50 [now
this section and �� 791, 792, 794, 2388
and 3241 of this title] were constitutional.
U.S. ex rel. Milwaukee Social Democratic
Pub. Co. v. Burleson, U.S.Dist.Co1.1921,
41 S.Ct. 352, 255 U.S. 407, 65 L.Ed. 704.
See, also, O'Connell v. U.S., Ca1.1920, 40
S.Ct. 444, 253 U.S. 142, 64 L.Ed. 827.
Former �� 31 to 42 of Title 50 [now
this section and �� 791, 792, 794, 2388
and 3241 of this title] were not unconsti-
tutional as an entirely, because in conflict
with U.S.C.A.Const. Amend. 1, guarantee-
ing freedom of speech and of the press.
Abrams v. U.S., U.S.N.Y.1919, 40 S.Ct.
17, 250 U.S. 616, 63 L.Ed. 1173, 17 Ohio
Law Rep. 367, 17 Ohio Law Rep. 415.
See, also, Equi v. U.S., Or.1919, 261 F.
53, 171 C.C.A. 649, certiorari denied 40
S.Ct. 219, 251 U.S. 560, 64 L.Ed. 414.
The contention that some of the mat-
ters dealt with in former �� 31 to 42 of
Title 50 [now this section and �� 791,
792, 794, 2388 and 3241 of this title]
were punishable under the Constitution
as treasonable, or not at all, and that
alleged attempt to cause disloyalty, muti-
ny, and refusal of military and naval duty,
denounced by the law, cannot be pun-
ished, not being treason, was unsound.
Frohwerk v. U.S., U.S.Mo.1919, 39 S.Ct.
249, 249 U.S. 204, 63 L.Ed. 561.
Subsec. (1) (2) of this section governing
the reporting of the abstraction of a docu-
ment relating to national defense is not
unconstitutionally vague because of its
lack of a scienter requirement since inju-
ry .to the United States can be inferred
froix conduct of the sort charged. U. S.
v. DIdeyan, C.A.4 (Md.) 1978, 584 F.2d
36.
Phrase "nnt PntitlpA
CRIMES Part 1
ceive them was not unconstitutionally
vague as applied to defendant who
"leaked" information to a British maga-
zine, as authorization to possess docu-
ments and entitlement to receive them
could be determined by reference to clas-
sification system under which defendant
worked as a government employee. U.S.
v. Morison, D.C.Md.1985, 604 F.Supp.
655, appeal dismissed 774 F.2d 1156.
Application of Federal Espionage Act to
case where accused had appropriate se-
curity clearance and initially came into
possession of classified documents in per-
formance of his official duties did not
violate Fifth Amendment notice require-
ment; accused was clearly on notice he
was not authorized to retain classified
materials and store them in his home
given that he told military judge during
his plea inquiry that he had worked with
classified materials for the past 16 years
and he knew he had no authority to re-
tain the materials and store them in his
home. U.S. v. McGuinness, CMA 1992,
35 M.J. 149, certiorari denied 113 S.Ct.
1364, 507 U.S. 951, 122 L.Ed.2d 743.
2. Construction
Considered in conjunction with struc-
ture and purposes of Espionage Act as a
whole and with other sections of the Act
in pan i materia with it, statute prohibiting
those with access to national defense in-
formation from wilfully communicating,
delivering, or transmitting the informa-
tion to a person not entitled to receive it
was not intended to apply narrowly to
spying but was intended to apply to
disclosure of secret defense material to
anyone "not entitled to receive it." U.S.
v. Morison, C.A.4 (Md.) 1988, 844 F.24
1057, certiorari denied 109 S.Ct. 259,
488 U.S. 908, 102 L.Ed.2d 247.
3. Construction with other laws
Section 484 of Title 40 with respect to
the disposal of surplus government prop-
erty was intended to protect purchasers
against the peril of failure of the selling
government officers to take all prelimi-
nary steps required by that section to
make the property available for sale to
the public and was not intended to make
it lawful, in the fare nf thk
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Ch. 37 ESPIONAGE AND CENSORSHIP
4. Power of Congress
Congress has power to break down into
separate offenses various aspects of espio-
nage activity and to make each separate
aspect punishable. Boeckenhaupt v. U.
S., C.A.4 (Va.) 1968, 392 F.2d 24, certio-
rari denied 89 S.Ct. 162,393 U.S. 896, 21
L.Ed.2d 177.
5. Prior law
Under former �� 31 to 42 of Title 50
[now this section and �� 791, 792, 794,
2388 and 3241 of this title] it was a crime
to obtain or deliver with intent or reason
to believe that they are to be used to the
injury of the United States, or to the
advantage of a foreign nation, things de-
scribed in sections referring to any
sketch, photograph, plan, model, etc.,
connected with the national defense, and
any document, writing, sketch, photo-
graph, etc., relating to the national de-
fense without regard to their connection
with places and things listed in former
� 31 of Title 50 [now this section] relat-
ing to any vessel, aircraft, work of de-
fense, etc., connected with the national
defense. Gorin v. U.S., U.S.Ca1.1941, 61
S.Ct. 429, 312 U.S. 19, 85 L.Ed. 488,
rehearing denied 61 S.Ct. 617, 312 U.S.
713, 85 L.Ed. 1144, rehearing denied 61
S.Ct. 618, 312 U.S. 713, 85 L.Ed. 1144.
6. Offenses
Under international law, spying is not a
crime, and the offense against the laws of
war consists of being found during the
war in the capacity of a spy. U.S. v.
McDonald, E.D.N.Y.1920, 265 F. 754, ap-
peal dismissed 41 S.Ct. 535, 256 U.S.
705, 65 L.Ed. 1180.
This section prescribing penalty for loss
of classified messages through gross neg-
ligence may be applied to continuing ille-
gal acts. U. S. v. Gonzalez, AFCMR
1981, 12 M.J. 747, affirmed 16 M.J. 428.
7. Information
Information communicated and deliv-
ered or attempted to be communicated
and delivered need not be classified to
constitute a violation of espionage statute
prohibiting communication of informa-
tion relating to the national defense, if the
information requested is not generally ac-
+I_---L"- S v Allen.
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18 �793
Note 9
8. National defense
Under former �� 31 to 42 of Title 50
[now this section and �� 791, 792, 2388
and 3241 of this title] providing for the
punishment of persons obtaining or deliv-
ering information connected with or re-
lating to the national defense with intent
or reason to believe that the information
is to be used to the injury of the United
States, or to the advantage of any foreign
nation, the term "national defense" was a
generic concept of broad connotations
and referred to the military and naval
establishments and the related activities
of national preparedness. Gorin v. U.S.,
U.S.Ca1.1941, 61 S.Ct. 429, 312 U.S. 19,
85 L.Ed. 488, rehearing denied 61 S.Ct.
617, 312 U.S. 713, 85 L.Ed. 1144, rehear-
ing denied 61 S.Ct. 618, 312 U.S. 713, 85
L.Ed. 1144.
Classified government documents
transmitted to representatives of Socialist
Republic of Vietnam during 1977 Paris
negotiations between that country and
the United States by defendants, which
included information relating directly to
United States military, American POW's
in Indochina and names of sources for
intelligence in Vietnamese government,
related to the national defense within
meaning of this section. U. S. v. Truong
Dinh Hung, C.A.4 (Va.) 1980, 629 F.2d
908.
9. Persons within section
Espionage statutes, prohibiting those
with access to national defense informa-
tion from wilfully communicating, deliv-
ering, or transmitting the information to -
a person not entitled to receive it, applied
to military intelligence employee who
made unauthorized transmittal of satel-
lite-secured photographs to periodical
publisher. U.S. v. Morison, C.A.4 (Md.)
1988, 844 F.2d 1057, certiorari denied
109 S.Ct. 259, 488 U.S. 908, 102 L.Ed.2d
247.
Subsec. (1) (2) of this section requiring
the reporting of the abstraction of a doc-
ument relating to national defense is ap-
plicable to a civilian mathematician
working on United States Department of
Defense contracts in private industry. U.
S. v. Dedeyan, C.A.4 (Md.) 1978, 584
F.2d 36.