THE ESPIONAGE STATUTES AND PUBLICATION OF DEFENSE INFORMATION

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• Collection: General CIA Records
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• Document Page Count: 160
• Document Creation Date: December 22, 2016
• Document Release Date: August 15, 2011
• Sequence Number: 1
• Publication Date: May 1, 1973
• Content Type: MISC

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COLUMBIA LAW REVIEW
VoL 73 May 1973
THE ESPIONAGE STATUTES AND PUBLICATION
OF DEFENSE INFORMATIONt
HAROLD EDGAR*
BENNO C.. SCHMIDT, JR."
I. Introduction: New York Times Co. v. United States .................... 930
II. The Espionage Statutes: An Overview ................................ 936
A. The Espionage Statutes ........................................... 937
B. The Legislative History ........................................... 939
III. Section 794 ........................................................... 942
A. Subsection 794(a) ................................................. 943
B. Subsection 794(b) ................................................. 944
1. Plain Meaning...,. .............................................. 945
2. Legislative History .............................................. 946
(a) The Publication Provisions of S. 8148 ....................... 947
(b) The Publication Provisions of S. 2 .......................... 950
STAT
(c) The House Debates on Section 794: H.R. 291 ................ 959
(d) The Conference Reports and Final Enactment of 794 ......... 961
3. Subsection 794(b): Conclusion .................................. 965
IV. Subsections 793 (a) and (b) .......................................... 966
A. Subsections 793(a) and 793(b) .................................... 967
B. Preliminary Considerations ........................................ 966
1. Related to the'National Defense ................................. 969
(a) Legislative Background ..................................... 969
(b) The Judicial Response .. .. ... 974
2. Intent or Reason to Believe That it is to be Used to the Injury of
the United States or to the Advantage of a Foreign Nation ........ 986
(a) The Problems of Plain :Meaning ........................... 987
(i) Injury or Advantage .................................. 987
(ii) Intent and Reason to Believe ........................... 989
(b) Legislative Background .................................... 991
(i) The Senate ........................................... 991
(ii) The House ........................................... 995
(c) Summary ................................................. 996
V. Subsections 793(d) and 793(e) ........................................ 998
A. Introduction ...................................................... 998
B. The 1911 Act ..................................................... 1002
C. The 1917 Act ..................................................... 1005
1. S. 8148 ........................................................ 1007
2. S. 2 ........................................................... 1012
3. H.R. 291 ......................................................
1016
4. The Conference ................................................ 1019
5. Epilogue to Section 1(d) ....................................... 1020
t We are very grateful to Philip I. Moncharsh, J.D. 1973, Columbia University, for
his research assistance in the preparation of this article.
* Associate Professor of Law, Columbia University. B.A. 1964, Harvard University;
I.L.B. 1967. Columbia University.
** Associate Professor of Law, Columbia University. B.A. 1963, LL.B. 1966, Yale
University.
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930 COLUMBIA LAW REVIEW (Vol. 73:929
D. The 1950 Act .................................. .
""""""'
1021
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E. Conclusion
...... ..................................
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1031
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ublication and Conduct Incidental Thereto ......................
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ransfer or Retention of Information . ..
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ocuments and Information .........
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4. Entitled to Receive It
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Summary
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VI. Subsection 793(c) .............................................
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VII. Other Statutes Bearin
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of Defense Information ..
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A. 18 U.S.C
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B. 18 U.S
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otographic Statutes: 18 U.S.C. Of 795, 797 and 50 U.S.C. App.
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Restricted Data
Statutes: 42 U.S.C. If 2271-81
VIII. Conclusion: Room for Improvement ........................
..........................
1074
1076
I. Introduction: New York Times Co. v. United States'
We began this lengthy study of the espionage statutes with grand
designs. Our original goal, suggested by the Pentagon Papers litigation, was
to elaborate the extent to which constitutional principles limit official power
to prevent or punish public disclosure of national defense secrets. But this plan
was short-lived. The more we considered the problem, the more convinced we
became that the central issues are legislative. The first amendment provides
restraints against grossly sweeping prohibitions, but it does not, we believe,
deprive Congress of considerable latitude in reconciling the conflict between
basic values of speech and security.
When we turned to the United States Code to find out what Congress
had done, we became absorbed in the effort to comprehend what the current
espionage statutes mandate with respect to the communication and publication
of defense information. The longer we looked, the less we saw. Either advanc-
ing myopia had taken its toll, or the statutes implacably resist the effort to
understand. In any event, whether the mote be in our eye or in the eyes of
the draftsmen, we have not found it possible to deal with the espionage
statutes except at forbidding length. This has cautioned us against augmenting
our study by detailed efforts to spell out statutory alternatives, a task further
complicated by our unfamiliarity with the Government's side of the secrecy
story, particularly the extent to which important security interests have in
fact been compromised by public disclosure of defense secrets. Consequently,
our conclusion suggests only some general principles that should control
legislative action-principles not retlected in the two proposals currently be-
fore Congress as part of the revision of the federal criminal law. The current
statutes come first, and we save the rest for another day.
The New York Times commenced publication of the Pentagon Papers2
1. 403 U.S. 713 (1971).
2. The Pentagon Papers are officially titled "History of U.S. Decision-Making
Process on Vietnam Policy." See, 403 U.S. at 714. Also at issue was a separate volume
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1973]
on June 13, 1971. The event created little stir until the Executive Department
threatened legal proceedings to halt the presses.3 We may not know for a long
time, if ever, precisely why this unprecedented course was chosen. Current
speculation, however, emphasizes the Administration's fear that budding
relations with Communist China would be nipped if secrets could not be
guaranteed 4 That it is even plausible that such a bruising domestic confronta-
tion would be undertaken to facilitate relations with Mao is a measure of the
complexity and the irony of current statecraft.
The battle was soon over. Proceedings in the lower courts took a mere
two weeks. The Supreme Court heard argument on June 26 and delivered its
opinion on June 30. The stakes were as high as. the pace was fast, for the
principles that clashed were fundamental notions of national security and
freedom of speech and press, the two values measured against which other
interests are so often treated as but straws in a wind. Not surprisingly, how-
ever, the Supreme Court decided the case without making much concrete law.
Among the ten opinionss produced in New York Times Co. v. United States,
the only proposition commanding a majority of the Court was the naked and
largely uninformative conclusion that on the record the Government had not
met its heavy burden to justify injunctive relief against publication. Prior
restraints, the Court reaffirmed, are available only in the most compelling
circumstances.?
The central theme sounded in the opinions of the six majority justices
was reluctance to act in such difficult premises without guidance from Con-
gress. That reluctance necessarily lost the case for the Government, which
argued that, without regard to legislation, the President's constitutional
powers as Commander-in-Chief and foreign relations steward entitled him to
injunctive relief to prevent "grave and irreparable danger" to the public
interest. The Government's brief in the Supreme Court did not even cite the
espionage statutes, let alone take a position on whether the New York Times
and the Washington Post had violated criminal laws by publishing the
Pentagon Papers or by their conduct in obtaining and retaining the alleged
entitled "Command and Control Study of the Tonkin Gulf Incident" See United States
v. New York Times Co., 328 F. Supp. 324, 328 (S.D.N.Y. 1971).
3. See S. UNGAR, THE PAPERS AND THE PAPERS 15-17 (1972). The Associated Press
carried nothing on the story until Monday afternoon June 14, 1971, nor was the story
carried in United Press International's "budget" of most important news. Both Senator
Humphrey and Defense Secretary Laird appeared on television interview programs on
Sunday, June 13. Neither was asked a single question about the Pentagon Papers.
4. Id. at 113-14.
5. A per curiam opinion announced the judgment of the Court. Justices Black,
Douglas, Brennan. Stewart. White and Marshall each filed an individual concurring
opinion. Chief Justice Burger and Justices Harlan and Blackmun wrote individual
dissents.
6. The Court had stressed in an opinion issued in May, 1971, the "heavy burden"
required to justify imposition of prior restraints. Organization for a Better Austin v.
Keefe, 402 U.S. 415, 419 (1971). For brief discussion of whether the Times case is
properly viewed in terms of prior restraint doctrine, see Kalven, Foreword: Even When
a Nation is at War, 85 HARV. L. REV. 3, 31-34 (1971).
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COLUMBIA LAW REVIEW [Vol. 73:929
national defense information. When litigation moves this quickly and the
underlying statutory problems are so complex, one cannot be sure that tactics
represent deliberate assessments of statutory coverage rather than acquiescence
to the demands of instantaneous response. Presumably, however, the Govern-
ment ignored the statutes in the Supreme Court7 because they do not expressly
authorize injunctive relief, whether or not they make publication or retention
criminal.8 If publishing the papers were criminal, injunctive relief might have
been thought barred, either by the principle that equity will not enjoin a crime
or by an assessment that Congress explicitly declined to authorize injunction
proceedings. If publication were not criminal, then Congress valued free
speech higher than possible security risks, and the Court was bound to accept
that judgment.
The Government's failure to discuss the legislative materials, however,
did not deflect judicial focus from them. All the justices concurring with the
judgment, including the late justice Black who found the first amendment
dispositive in any event, stressed the Government's failure to premise its case
on legislative authority. Thus the Supreme Court's decision resembles in
result a similar failure for unadorned claims of executive power in Youngstown
Stee1.9 Perhaps the Government would have fared better by arguing that in
this context interstitial power is appropriately used to enjoin contemplated
criminal behavior or "to limit the consequences of completed crimes, thus
testing head-on in the Supreme Court whether the espionage statutes were in
fact being violated.
Accepting the premise that there was no statutory basis available for
granting injunctive relief, we believe several considerations support the
Supreme Court's refusal to forge new rules concerning the disclosure of
national secrets. First, it has inadequate tools for the task ; ad hoc evaluations
of executive claims of risk are not easily balanced against first amendment
language and gloss. The spacious generalities of the constitutional text
7. The Government did seek to rely on the espionage statutes in the District Court
proceeding against the New York Times. See, United States v. New York Times Co.,
328 F. Supp. 324, 328-30 (S.D.N.Y. 1971). Judge Gurfein. held them inapplicable to
"publishing."
The Government apparently conceded the inapplicability of 18 U.S.C. ? 797 (1970)
which prohibits publishing any "photograph, sketch, picture, drawing, map or graphical
representation" of presidentially designated "vital military or naval installations or equip-
ment." The applicable executive order defines all classified "off'icial military naval or
airforce . documents" as protected "equipment." Exec. Order No. 10104, 3 C.F.R.
298-99 (1949-53 Comp.). See text accompanying note 391 infra.
8. Solicitor General Griswold, who argued the case for the Government, later ob-
served:
[A] serious problem in the government's case before the Supreme Court with
respect to the Pentagon Papers was that there literally was "no law" that
authorized an injunction against publishing material merely because it was
classified.
Griswold, The Jzi dicial Process, 28 RECORD of N.Y.C.B.A. 14, 19 (1973).
9. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). See Junger,
Dow Memory Lane: The Case of the Pentagon Papers, 23 CASE W. RES. L. REV. 3, 18
et seq. (1971), for suggestive analogies to Youngstown Steel.
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provide only vague standards if, as we believe, they do not compel acquiescence
in the publication of all information whatever its source, defense importance,
or minimal significance for public debate. Furthermore, there are no judicial
precedents even remotely analogous from which the Court could have drawn
an appropriate and satisfactory rule to fit the case. Street demonstrations,
apocalyptic rhetoric, obscenity, libel, and the rest of first amendment judicial
fare are poor materials from which to fashion permissions and restraints on
the publication of national security secrets. Moreover, even if standards could
be formulated from these sources, the judicial process is not well suited to
judge the risks inherent in releasing particular secrets. The task necessarily
requires conjectures,10 and adequate conjectures cannot be made without an
overview of the substance and interrelationship of military and diplomatic
policy that the judicial process cannot provide, a concession that only the
late justice Harlan was willing to accept ti
Second, dissemination of secret information often arises in the context of
heated disagreements about the proper direction of national policy. A secret
may be disclosed to demonstrate the futility of current policy, and one's
assessment of the disclosure's impact on security will depend on one's
reaction to the policy. Official efforts to suppress, therefore, trigger political
debate on the broader question, and that in turn threatens the public percep-
tion of detached judgment that underlies acceptance of judicial law-making.
Third, as justice White noted in his opinion,'2 - it would be particularly
unsatisfactory to build a judge-made system of rules in an area where much
litigation must be done in camera. Proper understanding of judicial decisions
defining the scope of the first amendment is especially dependent upon full
elaboration of the facts on which judgment has turned. Judicial attempts to
provide the rules governing publication of defense secrets would produce
little more than a series of ipse dixits as unenlightening as the per curiam
opinion in the Pentagon Papers case.
Thus, the tendency to see problems of grand sweep in constitutional
perspective should be resisted in the case of publication of defense information.
The legislative process is better suited to accommodate the need for secrecy
10. Justice Brennan unwittingly demonstrated the point when he outrightly con-
demned injunctions "predicated upon surmise or conjecture that untoward consequences
may result" but nonetheless saw some possibility for equitable relief where "publication
must inevitably, directly, and immediately cause the occurrence of an event kindred to
imperiling the safety of a transport already at sea." 403 U.S. at 725-27. To treat "peril"
as a "consequence" is not quite fair. "Imperiling" means increasing the risks that harm
will occur. The extent to which the probability of unfavorable outcome is affected by
publication of sailing dates may be just as, if not more, conjectural than predicting that
publication will seriously compromise negotiations already underway and make achieve-
ment of a particular position impossible. Cf. Manning, Foreign Policy and the People's
Right to Know, 50 DEP'T OF STATE BULL. 868, 870-71 (1964) (revelation of specific U.S.
negotiating positions "cripples our diplomacy").
11. 403 U.S. at 756-58.
12. Id. at 732.
l -_
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934 COLUMBIA LAW REVIEW [Vol. 73:929
with preservation of free speech about national security matters of prime
political importance. General rules about specific categories of defense-related
information cannot be fashioned by courts.
While the Court was therefore right to decline the executive branch's
invitation to fashion judicial rules without statutory guidance, it is somewhat
surprising that the Executive found it necessary to proceed without a clear
statutory basis. Few problems have had a greater claim to post-war legislative
concern than the issue of national security, and security is, by and large,
equally compromised by the publication of secrets in newspapers or magazines
available to all as it is by their transfer to foreign spies in encoded microdots.
Differences in the detrimental consequences of the breach lie primarily in
the hope that foreigners do not read carefullyta and in the advantage to the
would-be secret-keeper of knowing that his efforts have probably failed. The
latter consideration varies in importance depending on whether the secrets
revealed concern easily altered contingency plans or, by contrast, blueprints
for entrenched weapons systems.
Plainly, the best way of ensuring secrecy is to keep all defense-related
information from everyone outside the Government." But that policy would
deprive citizens of the opportunity to understand, evaluate and vote on
official conduct and; td' the extent that the information is scientific, would
greatly retard technological progress.ta Both the problem and the conflict in
values are obvious, and one might expect that Congress had responded to it in
a reasonably clear-cut way. Unfortunately, however, the legislation applicable
to revelation of defense secrets was not drafted to reconcile the competing
demands of national security and public debate about matters of prime political
importance.
There is an additional, fundamental problem: the legislation is in many
respects incomprehensible. Legal practitioners must often overlook this and
accept as irrebuttable the presumption that the draftsman was an artist with
a complex vision, whose canvas is coherent if only brooded upon long enough.
The proposition is false, and one of the major issues presented by the espionage
13. The Roosevelt administration in 1942 contemplated prosecuting the Chicago
Tribune for publishing accounts of the Battle of Midway that revealed that the United
States had broken the Japanese code. Subsequently, it was ascertained that the Japanese
had apparently not noticed the story. See S. UNGAR, supra note 3, at 115.
14. Evidence of what censors deem potentially useful to adversaries may be gleaned
from a World War II regulation covering radio and cable transmissions to foreign
countries. No mention in an international communication was permitted (except in press
dispatches subject to separate regulation) of, inter alia: "[t]he civil, military, industrial,
financial, or economic plans of the United States, or other countries opposing the Axis
powers, or the personal or official plans of any official thereof"; "[w]eather conditions
(past, present, or forecast)"; "[c]riticism of equipment, appearance, physical condition
or morale of the collective or individual armed forces of the United States or other
nations" opposing the Axis powers. U.S. Cable and Radio Censorship Regs. ? 1801-18(d),
(g), (k), 7 Fed. Reg. 1499. 1500 (1942).
15. See J. WIGGINS. FREEDOM OR SECRECY 109-12 (Rev. ed. 1964) (discussion of the
tension between secrecy and technological advance).
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1973] ESPIONAGE STATUTES
statutes is how demonstrably false it must be before courts treating first amend-
ment problems can rightly insist that they be given a more comprehensible
legislative instruction.
In view of the great difficulty of understanding the espionage statutes, it
is most regrettable that several justices gave vent to irritation against the
newspapers by volunteering readings of the statutes quite unnecessary to a
decision in the injunction proceedings. Although the injunctions were denied,
the satisfaction that would-be scoop readers might otherwise have enjoyed
was thoroughly chilled by dicta amounting to admonition in several opinions
that the present espionage statutes may authorize criminal sanctions against
the newspapers and their reporters for their roles in the Pentagon Papers
affair. Despite the justices' warnings, no criminal liability under the espionage
statutes for publication has materialized. The prosecution of Daniel Ellsberg
and Anthony Russo proceeded, however, on statutory premises that would in
effect criminalize publication by subjecting to liability the communication and
retention activities that necessarily precede publication. That aborted proceed-
ing has left the statutory question unresolved.
Justice White was the principal author of the warnings. His opinion,
joined by justice Stewart, detailed a construction of section 793 of title 18
that would impose criminal liability on newspapers for retaining defense
secrets.16 He noted, moreover, that "the issue of guilt or innocence would be
determined by procedures and standards quite different from those that have
purported to govern these injunctive proceedings"'?--a clear reference to the
traditional wisdom viewing the first amendment as less of a restraint on send-
ing publishers to jail than it is a bar to the issuance of injunctive relief against
publications. Justice Stewart wrote for himself that the criminal statutes "are
of very colorable relevance to the apparent circumstances of these cases."18
Chief Justice Burger and Justice Blackmun, in dissent, respectively registered
"general agreement"" and "substantial accord"=0 with justice White's views,
evidencing a surprising willingness to speculate about matters extraneous to
a litigation which they complained had proceeded too hurriedly for careful
judgment on the relatively narrow questions briefed and argued. Justice
Marshall, while not approving the construction, noted its "plausibility. "21
With opinions reaching afar in such unusual fashion, one may well ask "who
won" ?22
16. 403 U.S. at 737-38. The statute. set out in text following note 178 infra, makes
criminal "willful" retaining of defense secrets. Justice White intimated that even though
publishing such secrets might nor be an offense, retaining them is. 403 U.S. at 739, n.9.
We disagree with that position. See text accompanying note 289 infra.
17. Id. at 740.
18. Id. at 730.
19. Id. at 752.
20. Id. at 759.
21. Id. at 745.
22. Thus, Solicitor General Griswold is reported to have commented to another
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The legal posture of publication of defense information cannot comfortably
be left to inferences from these dicta. These tentative readings of the espionage
statutes are a loaded gun pointed at newspapers and reporters who publish
foreign policy and defense secrets. We have lived since World War I in a state
of benign indeterminacy about the rules of law governing defense secrets. In
a community where there exists consensus about the desirable ends of foreign
policy and the propriety of using force to accomplish them, at least among
those with access to defense secrets, the argument might plausibly be made
that the Brandeisian preference for clarity and stability should be inverted.
It may be better that the issues be left unsettled than settled rightly. Shared
premises preclude serious security breaches, while firm rules threaten too much
at their margins. But that delicate approach mandates reliance upon the
presence of ambiguities, both constitutional and statutory, that do not survive
many trips to the courthouse. Indeed, in the Court's first exposure to the
problem of the right to publish, several justices could not resist the temptation
to discourse on the law of post-publication criminality. The urge is under-
standable ; the unspoken rules of the defense establishment have unraveled in
the pressures of the Vietnam War, and legal questions are pressed to resolu-
tion.2
II. THE ESPIONAGE STATUTES: AN OVERVIEW
The major challenge in construing the espionage statutes is to give the
draftsmen's language a meaning that approximates what Congress thought it
was doing and what proponents of broader legislation have repeatedly insisted
it has done. The framework for the present statutes is the Espionage Act of
lawyer, shortly after the decision was announced "Maybe the newspapers will show a little
restraint in the future." N.Y. Times, Jul. 1, 1971, at 1, col. 8 to 15, cot. 1. In April, 1972,
a justice Department official warned the press at the annual meeting of the American
Society of Newspaper Editors that they run the risk of criminal prosecution for publishing
classified information. N.Y. Post. Apr. 20, 1972. at 9, col. 1.
23. Professor Bickel. counsel for the New York Times, has observed:
For law can never make us as secure as we are when we do not need it. Those
freedoms which are neither challenged nor defined are the most secure. In this
sense, for example. it is true that the American press was freer before it won its
battle with the government over the Pentagon Papers in 1971 than after its
victory. Before June 15, 1971. through the troubles of 1798, through one civil and
two world wars, and other wars, there had never been an effort by the federal
government to censor a newspaper by attempting to impose a restraint prior to
publication, directly or in litigation. That spell was broken, and in a sense freedom
was thus diminished.
But freedom was also extended in that the conditions in which government
will not be allowed to restrain publication are now clearer and perhaps more
stringent than they have been. We are. or at least we feel, freer when we feel
no need to extend our freedom. The conflict and contention by which we
extend freedom seem to mark, or at least to threaten, a contraction: and
in truth they do, for they endanger an assumed freedom, which appeared limitless
because its limits were untried. Appearance and reality are nearly one. We extend
the legal reality of freedom at some cost in its limitless appearance. And the cost
is real.
Bickel. The "Uninhibited, Rohnst and U'ide-Open" First Amendment, 54 COMMENTARY
00, of (1972).
f
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19731 ESPIONAGE STATUTES
1917. It was enacted after a series of legislative debates, amendments and
conferences that may fairly be read as excluding criminal sanctions for well-
meaning publication of information no matter what damage to the national
security might ensue and regardless of whether the publisher knew its publica-
tion would be damaging. Despite the apparent thrust of the legislative history,
however, the language of the statutes has to be bent somewhat to exclude
publishing national defense material from its reach, and tortured to exclude
from criminal sanction preparatory conduct necessarily involved in almost
every conceivable publication of defense matters.
It is the apparent reach of the language of these provisions, particularly
18 U.S.C. ? 793(e), that attracted the justices' dicta. In most such cases of
conflict between a statute's language and evidence of the legislators' intent,
there is soundness in the view, as Holmes put it, that "we do not inquire
what the legislature meant, we ask only what the statute means."24 Here,
however, the legislative intention behind the Espionage Act is given added
significance because Congress has, since 1917, repeatedly been told by Executive
Branch sponsors of broader statutes that the present laws do not cover
publication of secret information damaging to national security. No prosecution
premised on publication has ever been brought under the espionage laws, even
though numerous opportunities have been presented. Moreover, the prosecu-
tion of Daniel Ellsberg and Anthony Russo for unlawful retention of defense
information under subsection 793(e) was the first effort to apply the espionage
statutes to conduct preparatory to publication.
The discrepancy between legislative intent and apparent effect complicates
the choice of an analytic approach to the materials. Our resolution of the
problem is to provide an initial overview of the statutes and their legislative
history. Then we will present a detailed analysis of the individual statutory
provisions and the legislative record that generated them, and interweave the
pertinent case law that has interpreted them.
A. The Espionage Statutes
The relevant espionage statutes are codified in sections 793-798 of Title 18
of the United States Code. The basic provisions are sections 793 and 794.
Section 794 contains comprehensive provisions bearing on transfer of defense
information to foreigners. Subsection 794(a) punishes actual or attempted
communication to a foreign agent of any document or information "relating
to the national defense," if the communication is "with intent or reason to
believe that it [the information] is to be used to the injury of the United
States or to the advantage of a foreign nation." Subsection 794(b), which is
applicable only in time of war, also deals with transfer of information to
foreigners and prohibits collecting, recording, publishing, or communicating
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938 COLUMBIA LAW REVIEW (Vol. 73:929
information about troop movements and military plans "with intent that the
same shall be communicated to the enemy." Subsections 794(a) and 794(b)
thus create offenses involving the intentional transmission of information to
foreigners. Both subsections also criminalize preparatory conduct intended
to achieve the proscribed results; subsection 794(a) expressly prohibits
attempts, and subsection 794(b) accomplishes much the same result, as it
prohibits collecting and recording the protected information with intent to
communicate it to an enemy. Subsection 794(c) makes criminal, and punishes
equivalently with the completed offense, conspiracies to violate the other
subsections.
In addition to section 794's seemingly comprehensive coverage of espionage
activities, section 793 defines six offenses, each involving conduct which would
be preliminary to foreigners' acquisition of information. Subsections 793(a)
and 793(b) prohibit entering an installation or obtaining or copying a
document "connected with the national defense" for "the purpose of obtaining
information respecting 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." Subsections (c), (d), and (e) are more
sweeping, and make criminal receipt of material knowing that it has been
obtained in violation of, other espionage provisions, communication of defense-
related material or information to any person not entitled to receive it, and
retention of such information. Subsections 793(d) and 793(e) proscribe will-
ful conduct, while subsection (c) appears to prohibit any receipt of defense
information by one who knows of an actual or contemplated breach of the
espionage laws. Because these statutes do not explicitly on their face require
an ulterior intent to harm the United States, subsections (c), (d), and (e)
may make criminal nearly all acquisitions by newspapers of "national defense"
information, a term defined so broadly by the courts that it comprehends most
properly classified information. Congress, however, did not understand the
provisions to have that effect, and they have never been so employed.
Other important provisions of Title 18 directed at breaches of security
are section 798, which prohibits publication of information dealing with the
special category of communications intelligence, and section 795, which pro-
hibits photographing or making a graphical representation of any vital military
equipment or installation that the President has defined "as requiring protec-
tion against the general dissemination of information relative thereto," without
first obtaining permission from the appropriate military authority. Section 797
prohibits subsequent publication of such a photograph.
The major questions concerning the espionage statutes are: (1) what type
of revelation or communication is a necessary element of the particular offense,
and if so, is it accomplished, in the statutory sense, by publication or prepara-
tory communications : (2) what state of mind with respect to the consequences
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for United States' interests is made a material element of the different
offenses, and how should the mental state of a person who publishes informa-
tion be characterized under the various culpability standards ; and, (3) what
information is subjected to statutory restraints under various standards rang-
ing from "information related to the national defense" to "classified communi-
cations intelligence."
These central questions of coverage cannot be satisfactorily resolved by
analysis only of statutory language and judicial constructions. Therefore,
legislative history becomes of necessity a major interpretive resource. Although
the history of these statutes is more than usually confused, ambiguous, and
voluminous, neither we nor, more importantly, the courts have any choice but
to turn to it for enlightenment.
B. The Legislative History
The basic provisions of sections 793 and 794 of the Code were enacted
in the Espionage Act of 1917 and have remained almost unchanged since its
passage. Congress, however, has grappled with the problems of accommodat-
ing secrecy, and public speech on at least five occasions since 1911. In each
instance, the legislative debates.have focused on the problem of how to protect
military secrets from spies without promulgating broad prohibitions that would
jeopardize the legitimate efforts of citizens to seek information and express
views concerning national security.
The Defense Secrets Act of 191.125 was the first attempt by Congress to
25. 36 Stat. 1804 (1911). This statute provides:
SEC. 1. That whoever, for the purpose of obtaining information respecting
the national defense, to which he is not lawfully entitled, goes upon any vessel,
or enters any navy-yard, naval station, fort, battery, torpedo station, arsenal,
camp, factory, building, office, or other place connected with the national defense,
owned or constructed or in process of construction by the United States, or in the
possession or under the control of the United States or any of its authorities or
agents, and whether situated within the United States or in any place non-
contiguous to but subject to the jurisdiction thereof; or whoever, when lawfully
or unlawfully upon any vessel, or in or near any such place, without proper
authority, obtains, takes, or makes, or attempts to obtain, take, or make, any
document, sketch, photograph, photographic negative, plan, model, or knowledge
of anything connected with the national defense to which he is not entitled; or
whoever, without proper authority. receives- or obtains, or undertakes or agrees
to receive or obtain, from any person, any such document, sketch, photograph,
photographic negative, plan, model, or knowledge, knowing the same to have
been so obtained, taken, or made: or whoever, having possession of or control
over any such document, sketch, photograph, photographic negative, plan, model,
or knowledge. willfully and without proper authority. communicates or attempts
to communicate the same to any person not entitled to receive it, or to whom
the same ought not, in the interest of the national defense, be communicated at
that time. or whoever, being lawfully intrusted with any such document, sketch,
photograph, photographic negative, plan, model, or knowledge, willfully and in
breach of his trust, so communicates or attempts to communicate the same, shall
be fined not more than one thousand dollars, or imprisoned not more than one
year, or both.
SFc. 2. That whoever, having committed any offense defined in the preced-
ing section. communicates or attempts to communicate to any foreign govern-
ment, or to any agent or employee thereof, any document, sketch, photograph,
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940 COLUMBIA LAW REVIEW [Vol. 73:929
protect military information. Before passage of that act, the only federal laws
of general applicability relating to espionage were statutes dealing with trea-
son,26 unlawful entry into military bases,27 and the theft of governmental
property.28 The 1911 statute proscribed several, vaguely defined information-
gathering activities in and around military installations that have been carried
over into subsections 793(a) and (b), but lacked the important requirement
of intent to injure the United States or advantage a foreign nation that was
added in the 1917 Act. The 1911 statute also prohibited communication of
defense information to persons "not entitled to receive it," although who and
what was covered was unclear. This inartful language has been carried over to
the present subsections 793(d) and (e), which present the most difficult prob-
lems of interpretation of any of the espionage statutes. The 1911 statute
provided a more severe penalty for communication, regardless of intent, of
illegally obtained information to a foreign government. It was thus a precursor
of section 794(a) as well.
The word "publishes" did not appear in the 1911 statute, and nothing in
the lackadaisical debates which led to it reflected an awareness that publication
of defense information might pose a problem for national security. In contrast,
three-hundred pages of the Congressional Record attest to the attention given
to the Espionage Act 'of 1917,29 which was first introduced in the 64th Con-
gress two days after President Wilson announced to a joint session of Con-
gress the severance of diplomatic relations with Germany. Heated debate
stretched over two frenetic sessions and encompassed three bills and two
conference reports. Concern about enemy spying, triggered by American
entry into World War I, accounted for some of the increased consideration,
but most of the significant debate was not provoked by worry over espionage
in the usual sense.
Two different matters dominated the legislative history. First, the Wilson
Administration proposed to censor, or punish after the fact, (exactly which
was never resolved) publication of defense information in violation of Presi-
dential regulations. The desirability of such a measure was seen by its
adherents to derive from the obvious harm that would befall military interests
photographic negative, plan, model, or knowledge so obtained, taken, or made, or
so intrusted to him, shall be imprisoned not more than ten years.
26. 35 Stat. 1038 (1909).
27. 35 Stat. 1097 (1909) :
Whoever shall go upon any military reservation, army post, fort, or arsenal,
for any purpose prohibited by law or military regulation made in pursuance of
law ... shall be fined not more than five hundred dollars, or imprisoned not more
than six months, or both.
28. 35 Stat. 1097 (1909):
Whoever shall embezzle, steal or purloin any money, property, record,
voucher, or valuable thing whatever, of the moneys, goods, chattels, records.
or property of the United States, shall be fined not more than five thousand
dollars. or imprisoned not more than five years, or both.
29. 40 Stat. 217 et seq. (1917).
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when untimely publications fell into enemy hands. Proponents of the measure
pointed to the Civil War experience when the Union cause had been
jeopardized by newspaper retailing of military plans. Second, sponsors of the
Espionage Act were eager to carry over and broaden the proscriptions on
information-gathering contained in the 1911 Act. They were content to rely on
prosecutorial discretion to ensure that the provisions would not be invoked
against innocent citizens merely curious about military policy.
In response to these proposals Congress engaged in its most important
and extensive debate on freedom of speech and the press since the Alien and
Sedition Acts. The preoccupation was not academic. Congressmen feared that
President Wilson or his subordinates would impede, or even suppress, in-
formed criticism of his Administration's war effort and foreign policy under
the guise of protecting military secrets.
Both proposals were ultimately defeated. Express controls on publication
not conditioned on a narrow intent requirement were rejected by close votes
in both the Senate and House ; after parliamentary maneuvering, a conference
report reinstating the controls was also defeated. The only surviving prohibi-
tion was that now found in section 794(b), which forbids publication of
military information "with intitpt that the same shall be communicated to the
enemy." Whether this action represented legislative animosity to any general
controls on publication is not. clear, however. The issue of restrictions on
publications was tied to the highly partisan question whether President Wilson
could decide, or, worse to his critics, delegate the authority to decide what
information was subject to restraint against general dissemination. Accord-
ingly, it is often debatable- whether solicitude for freedom of the press or
political anxiety about the powers of a war-time President led Congress to
resist broad prohibitions on publication.
The information-gathering activities proscribed by the 1911 Act were
made criminal in the 1917 Act, for the most part, only when performed 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." Only the
1911 Act's vague proscription against communication of defense material to a
person "not entitled to receive it" was brought forward into the Espionage
Act without significant change.
Despite the rejection of the proposed flat ban on publication and the in-
clusion of an intent requirement in most of section 793, the legislative history
of the Espionage Act does not yield simple answers to the problems of publica-
tion and preliminary information-gathering. The congressional action did not
leave the law utterly without impact on publication and information-gathering,
but rather made them illegal when done with certain culpable states of mind
such as "intent" or "reason to believe." Ascertaining the meaning of such
phrases is thus a central task. Unfortunately, the proponents of culpability
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942 COLUMBIA LAW REVIEW (Vol. 73:929
requirements were more concerned with obtaining their inclusion than elucidat-
ing their meaning. Ambiguity pervades the Espionage Act, as, indeed, the
whole of the federal criminal law, as to whether intent to cause a result requires
a conscious purpose to bring it about or is to be inferred from action when
occurrence of the result is a virtual certainty.
The basic provisions of sections 793 and 794 have been changed impor-
tantly only once since 1917. As a little-noted aspect of the massive Internal
Security Act of 1950, section 793 was extended by the addition of subsection
(e).30 This provision departed from the established pattern of the 1917 Act
by imposing a prohibition applicable to everyone, not conditioned on any
special intent requirement, on communication of information relating to the
national defense to persons "not entitled to receive it." Mere retention of
defense information was also made a crime.
The problem of regulating publication in the interest of national security
also received explicit attention in 1932, when Congress, in response to the
publishing activities of a former State Department code-breaker, made criminal
the publication by federal employees of any matter originally transmitted in
foreign code.31 Broader controls on publication were debated once more and,
for the most part, rejected in 1950 with the passage of section 798 dealing
only with the publication of information concerning domestic codes and com-
munications intelligence. operations.32 The 1932 and 1950 legislation reflects
more than Congress' view of how to treat public speech about the quite specific
categories of information covered by those statutes. The debates suggest also
the understanding of Congress and the Executive Branch that the 1917
Espionage Act was not applicable to publication of general defense information,
a classification which would subsume the narrower categories of information.
Other retrospective views of the 1917 Act were reflected in 1957 in the
unsuccessful recommendation of the Commission on Government Security
that publication of classified information be made a crime 33
With this overview of the espionage statutes and their legislative history
hopefully affording a general perspective for detailed analysis, we will now
consider the individual statutory provisions as they bear on public speech
about national security. -
III. SECTION 794
Section 794 concerns the transfer of information to foreigners and conduct
undertaken to accomplish that result. The section consists of two primary
subsections, with a third covering conspiracies to commit the substantive
offenses.
30. 64 Stat. 1004 (1950).
31. 48 Stat. 122 (1933).
32. 64 S tat. 159 (1950).
33. See text accompanying note 348 infra.
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A. Subsection 794(a)
Subsection 794(a) provides:
Whoever, with intent or reason to believe that it is to be used to the
injury of the United States or to the advantage of a foreign nation,
communicates, delivers, or transmits, or attempts to communicate.
deliver, or transmit, to any foreign government, or to any faction or
party or military or naval force within a foreign country, whether
recognized or unrecognized by the United States, or to any repre-
sentative, officer, agent, employee, subject, or citizen thereof, either
directly or indirectly, any document, writing, code book, signal book,
sketch, photograph, photographic negative, blueprint, plan, map,
model, note, instrument, appliance, or information relating to the
national defense, shall be punished by death or by imprisonment for
any term of years or for life.'
This provision raises several major questions of interpretation: 1) What is
meant by "communicates, delivers, or transmits . . . to any foreign govern-
ment, or to any . . . citizen thereof ?" Is publication of a newspaper that is
certain to reach foreign hands within the scope of this language? 2) What
"documents, writings.... or information" are covered by the concept "relating
to the national defense?" 3) What is the mental element required by the
language "with intent or reason to believe that it is to be used to the injury
of the United States or to the advantage of a foreign nation ?" The answer
to the first of these questions is dispositive in assessing the application of
794(a) to publication ; accordingly the meaning of "relating to the national
defense" and the culpability standard will be discussed in connection with
other provisions of broader sweep in which the same formulations appear.
Both the language of 794(a) and the clear intent of Congress confirm that
the provision does not reach public speech. Subsection 794(a) proscribes com-
munition to a foreign recipient. Presumably, the drafters did not believe
that a person who publishes a fact communicates it to foreigners in the
statutory sense simply because foreigners may read the publication. To be
sure, the statute adds that communication may be "direct or indirect," but
that phraseology seems better read as directed at communication between
citizens when the transmitter realizes that his contact is but a link in an
intended chain to a foreign recipient. If this reading of "direct or indirect" is
accepted, section 794(a) does not impose liability for routine publication,
because the required specificity of purpose to communicate to foreigners is
lacking. Moreover, it may be argued that the draftsmen saw a difference be-
tween publishing-used in the dictionary sense of "to make publicly (gener-
ally) known"-and communicating, even though the latter term might ordi-
narily be thought to comprehend all transmissions of information, including
publication. While 794(a) prohibits communication, delivery or transmittal
34. 18 U.S.C. 1 794(a) (1970).
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of information, the word "publishes" appears in subsection 794(b) where both
"communicates" and "publishes" are used. By implication, the drafters thought
the latter mode of communication was not reached by subsection 794(a).
The legislative history strongly supports this conclusion, as a brief
summary will demonstrate. When Congress enacted 794(a) and 794(b) as
part of the Espionage Act of 1917, the proposed legislation reported by the
Judiciary Committees of both House and Senate contained a third provision
that would have authorized the President to issue regulations prohibiting
publication of any designated national defense information.sa This potential
blanket restriction on publication was the major focus of the debates on the
Espionage Act and was defeated in both House and Senate despite a
last-minute personal appeal by President Wilson. For purposes of construing
794(a), the defeat of the proposal is significant because opponents of a gen-
eral prohibition argued that the only controls on publication of general
national defense information consistent with sound public policy were accom-
plished by what is now 794(b)." Supporters of the provision argued con-
versely that 794(b) was not sufficient because it prohibited only publication
with intent to communicate to the enemy, and that a general prohibition, not
conditioned on a mental requirement, was necessary.37 Significantly, neither
supporters nor opponents ever asserted that 794(a)'s prohibition on com-
munication to a foreigner had any bearing on the problem posed by publication
of defense information. Thus, both language and legislative history demonstrate
that section 794(a) concerns only that communication which occurs in typical
espionage.
B. Subsection 794(b)
Subsection 794(b) is applicable to public speech about military matters
since it explicitly covers publication as well as communication. The general
offenses defined by 794(b), like those in 794(a), are drawn in terms of trans-
mission, or intended transmission, of information to foreigners. Subsection
794(b) provides:
Whoever, in time of war, with intent that the same shall be
communicated to the enemy, collects, records, publishes, or com-
municates, or attempts to elicit any information with respect to the
movement, numbers, description, condition, or disposition of any of the
Armed Forces, ships, aircraft, or war materials of the United States,
or with respect to any works or measures undertaken for or con-
nected with, or intended for the fortification or defense of any place.
or any other information relating to the public defense, which might
be useful to the enemy, shall be punished by death or by imprison-
ment for any term of years or for life.:',y
35. See text accompanying note 51 infra.
36. See text accompanying note 73 infra.
37. See text accompanying note 69 infra.
38. 18 U.S.C. 4 794(b) (1970).
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1. Plain Meaning. Apart from its coverage of publication, 794(b), is,
in most respects, narrower than 794(a). The categories of protected informa-
tion are narrower than those described by 794(a)'s vague "relating to the
national defense" standard if "any other information related to the public
defense," as used in 794(b), is limited to matters of the same genus as the
items specifically described. Furthermore, 794(b) prohibits communications
to "the enemy" whereas 794(a) prohibits transfers intended or likely to ad-
vantage "a foreign nation." On the other hand, 794(b) is somewhat broader
because the required culpability is only the mere intent that information be
communicated. The actor's state of mind with respect to the injurious conse-
quences of the communication is irrelevant.
A perplexing question as to 794(b)'s coverage arises from its applicability
only in time of war. In 1953, Congress enacted 18 U.S.C. ? 798, which
declares that "acts which would give rise to legal consequences and penalties
under section 794 when performed during a state of war shall give rise to the
same legal consequences and penalties when performed" for the duration of
the Presidentially-proclaimed state of national emergency or until concurrent
resolution of Congress declares otherwise.30 Insofar as the proclamation of
national emergency has been continued to this day, subsection 794(b) is pur-
portedly in force. Whether the sentiment which moved Congress in 1953 has
been successfully implemented is, however, questionable. The subsection pro-
scribes communication to the "enemy," but in the absence of war, who is the
enemy? The statute gives the President no power to make that determination,
nor do any Executive Orders purport to do so. Moreover, we question whether
subsection 794(b) may be applied if open hostilities are commenced without
declared war. Because of increasing interrelationships among nations and the
untenability of "total war," cooperation in some areas is likely to coincide
with the pursuit of violent solutions in others. Under such circumstances it is
questionable whether a citizen may be forced to guess at what point hostilities
become sufficiently intense-from the sending of "advisers," to protective
reactions, to tactical reprisals-to make another nation an_ "enemy," particu-
larly insofar as the statute does not explicitly require intent to aid the enemy
cause.
In any event, assuming its applicability, 794(b) thus far appears to
cover little not already covered by the more general standards of 794(a).40
In two respects, however, it is broader. Unlike subsection 794(a), which
39. 67 Stat. 133 (1953). Congress inadvertently enacted two statutes codified as
18 U.S.C. ? 798. The other pertains to cryptography.'
40. helpful consequence of legislative specificity as to the information covered by
section 794(b) is to bypass the issue under 7')4(a) of whether antr-to what extent
information must be secret in order to relate to the national defense. That problem is
most difficult as to matters like troop movements that are plainly not secret to some but
nonetheless constitute information that should surely he kept from enemy hands. Sec text
accompanying note 140 infra.
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punishes attempts, subsection 794(b) makes criminal specific acts-"collects,
records or attempts to elicit"-which are probably on the preparation side of
the preparation/attempt line. More important, subsection 794(b) is broader
than 794(a) in expressly making "publishing" criminal, thus bringing news-
papers within its purview. Publication, however, is criminal only if done with
the "intent that [information] shall be communicated to the enemy." If this
intent requirement is read to mean conscious purpose-a construction sug-
gested by the absence of the "reason to believe" standard used in the cul-
pability formulation of 794(a)-then, paradoxically, prosecution of normal
publication under subsection 794(b) is a virtual impossibility. The purposes
underlying publication will almost always be to inform the public, affect na-
tional policy or sell newspapers ; that foreigners will read the publication is
a known, but not motivating, factor.
It seems anomalous to proscribe "publishing" but condition responsibility
on a mental requirement that will almost never be present. Is it possible that
Congress desired such a result? Should it be avoided by reading "intent"
to mean "with knowledge" that the enemy will learn? Since no case law
illuminates the issue, a detailed study of the legislative record is the only
source of enlightenment.
2. Legislative History! The story of the Espionage Act of 1917 is essen-
tially the tale of how the Wilson Administration fought and lost the battle
for broad controls on all information relating to our military efforts. It sub-
mitted bills which, if enacted, would have given the President full power to
restrict the divulgence of government secrets, public access to defense places,
and public discussion and reporting of matters relating to the war. At first,
the Executive Department got its way-the initial Administration bill, S. 8148,
sailed through the Senate by a huge margin in substantially the terms its
sponsors desired. Then, however, the newspapers brought their pressure, as
considerable then as now, to bear on Congress, especially in connection with
the most sweeping of the prohibitions on publication of defense information.
As the newspapers' ire mounted, so did congressional reluctance to enact
sweeping proposals. The House took no action on S. 8148, and the Senate
Judiciary Committee rethought the matter.
When the next session opened and successor measures, S. 2 and H.R.
291, were debated, the Administration forces could not win acceptance of
broad prohibitions. First, both the House and Senate committees narrowed the
scope of provisions that limited public access to defense installations by re-
quiring some culpable purpose beyond satisfaction of curiosity. Second, and
most important, the Administration could not, despite vigorous efforts, secure
enactment of any form of censorship provision, even though it accepted in-
creasingly narrow formulations of the prohibition.
Thus the scope of the Espionage Act was gradually narrowed. Assess-
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ment of the intended scope of subsections 794(a) and 794(b), consequently,
can be measured in part by looking to the objections which led to the defeat of
broader provisions, but which Congress did not believe were grounds for
concern with respect to the statutes it enacted.
(a) The Publication Provisions of S. 8148. The earliest version of
section 794 was section 2 of chapter 1 of S. 8148,41 which contained three
subsections, the first two of which were comparable to the present 794(a)
and 794(b), with the important exception that 2(a) did not include the
intent requirement later added to 794(a). The third subsection, 2(c), would
have empowered the President to issue regulations controlling the publication
of a broad range of defense information. It provided:
Whoever, in time of war, in violation of regulations to be pre-
scribed by the President, which he is hereby authorized to make and
promulgate, shall collect, record, publish, or communicate, or attempt
to elicit any information with respect to the movement, numbers,
description, condition, or disposition of any of the armed forces,
ships, aeroplanes, or war materials of the United States, or with re-
spect to the plans or conduct, or supposed plans or conduct of any
naval or military operations, or with respect to any works or measures
undertaken for or connected with, or intended for the fortification or
defense of any place, or any other information relating to the public
defense or calculated to be, or which might be, useful to the enemy,
shall be punished by a fine of not more than $10,000 or by imprison-
ment for not more than three years, or by both such fine and impris-
onment4s
The Senate debate on section 2. was surprisingly limited ; almost nothing
was said about subsections 2(a) and 2(b), and what little debate there was
focused on subsection 2(c). Although it was ultimately stricken from the
Espionage Act, the censorship provision is of the greatest significance in
assessing 794(a) and 794(b), and, as we shall subsequently show, other pro-
visions of the Espionage Act as well.
The feature of 2(c) that drew the most criticism was the absence of any
intent requirement. Senator Cummins attacked it as "an absolute suppression
of free speech" and "an absolute overthrow of a free press. 1148 Significantly,
he did not object to subsection 2(b), which prohibited publication with intent
to communicate to the enemy, other than by unsuccessfully trying to amend
it to narrow the range of information covered.44 Cummins' strong objection
41. The full text of proposed S. 8148 is set out at 54 CoNG. Rsc. 2820-21 (1917).
42. S. 8148. 65th Cong.. 1st Sess. ? 2(c) (1917).
43. 54 Cong. Rec. 3492. Although effective only in time of war, Cummins argued
nonetheless that Section 2(c) went too far:
Instead of overturning the freedom of the people by one act, we have simply
delegated the authority to the President to overturn and obliterate that freedom.
Under this provision the President can absolutely command silence in the United
States upon every subject mentioned in the paragraph. He can suppress every
suggestion concerning the national defense in every newspaper of the land.
44. Id.
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to 2(c) thus was derived not from opposition to any and all prohibitions on
publication, but rather from opposition to prohibitions not conditioned on
intent to communicate with the enemy. `5 The debate was primarily cast
on the assumption that general publication would in many instances lead to
receipt of information by the enemy. If knowledge of this probable conse-
quence satisfied an intent requirement, it would have been redundant to insist
on it in a prohibition on publication. Cummins, therefore, presumably believed
that intent, as used in 2(b), required explicit proof of conscious purpose to
inform the enemy, and would not be satisfied by inference from knowledge
of the predictable consequences of publication. We stress Cummins' position
on these provisions because he was certainly the most voluble, and perhaps
the most influential, Senate critic of general publication controls. His views
probably come closest to reflecting the reasons which ultimately led a ma-
jority of Senators, in the next Congress, to strike 2(c) from the Espionage
Act.
The supporters of 2(c) also interpreted Cummins' intent requirement
to necessitate proof of guilty purpose. Senators Walsh and Nelson, two of
the Administration's leading supporters, opposed inclusion of such a standard
because newspaper disclosures of defense information could aid the enemy
even though the paper and its reporter were entirely innocent of evil motives 46
45. Although Cummins also objected strenuously to the delegation to the President
of power to make regulations, it is clear that the absence of intent was, by itself, grounds
for objecting to 2(c)'s prohibition on publication. Section 2(c), as originally forwarded
by the Justice Department to the Senate Judiciary Committee, included no reference to
regulations prescribed by the President. Cummins objected to it before the Committee as a
suppression of free press, when his objection actually must have focused only on the
absence of intent: -
As this bill was originally introduced, as it was drawn in the office of the
Attorney General, the crime was described without any reference to regulations
to be prescribed by the President. It was simply made criminal for anyone to
promulgate, collect, record, publish, or communicate, and so forth, any informa-
tion with respect to any of these things, all of which may be combined in the one
expression "relating to the national defense."
This is the paragraph of which I said before in the committee, and which I
now say again, had it been in force in the last two years three-fourths of the people
of the United States would have been in the penitentiary, or ought to have been
in the penitentiary, because it was an absolute suppression of free speech, it was
an absolute overthrow of a free press. I made that objection to it before the com-
mittee; and the way in which it has been amended is to insert the words "in
violation of regulations to be prescribed by the President ...."
I was very unwilling to make it an offense directly to do these things, and
I am quite as unwilling to give the President the authority to prescribe any such
regulations....
Id. at 3492. Cummins did not elaborate further his objections to 2(c), though he noted
that it was the paragraph which "will arouse most interest throughout the country." Id.
46. The point arose early in the debates on S. 8148, when the Senate was debating
the provisions of section 1, the predecessor to 793, but is nonetheless illustrative of the
meaning of intent in 794. Senator Nelson stated:
I want to call the Senator's attention to how utterly futile it would be to put in
clauses requiring the information to be given to a foreign country. What we
suffered from during the Civil War more than anything else was the fact that
our news ispers contained full information as to the number of troops, their loca-
tion. the I movement of the troops, and everything. The newspapers did not do
it with an evil intent. They did it for the purpose of selling their newspapers,
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Again, presumably neither would have objected if intent had been understood
to mean only knowledge of the probable result."'
getting a market for purveying the news to the American people, and yet it was
one of the greatest evils that we had to contend with during the Civil War.
Id. at 3488.
Cummins' position was also understood to mean a requirement of purpose by Senator
Walsh of Montana, another member of the judiciary Committee and the most knowledge-
able proponent of the legislation:
I desire to say, Mr. President. that I am not in harmony with the view
expressed just now by the Senator from Iowa. I do not think we ought to make
the intent to do harm to the United States or to convey aid or comfort to the
enemy an element in these crimes. We differ radically there, and I would not
like to be understood that it is in any such spirit that these amendments. tendered
by myself are proposed.
Mr. President, we could very readily conceive that some enterprising news-
paper man, some writer for the magazines, would go about to get this informa-
tion without any purpose whatever to convey it to the enemy. He simply wants to
do it for the enlightenment of the American people, as he believes, for their
information, and perhaps his purpose does not go any further than to make a story
that he can sell to some periodical. I think that ought to be guarded in the way
that this legislation seeks to guard it.
Id. at 3498-99.
47. The same understanding of intent crops up in the debates over section 3 of chapter
1 of S. 8148, which prohibited making statements with intent to cause disaffection in or
interference with military forces. Section 3 provided:
Whoever, in time of war, shall, by any means or in any manner, spread or make
reports or statements, or convey any information, with intent to cause disaffection
in or to interfere with the operations, or success of, the military or naval forces
of the United States, or shall willfully spread or make false reports or statements
or convey any false information calculated to cause such disaffection or inter-
ference, shall be punished by a fine of not more than $10,000 and by imprison-
ment for life or any period less than 30 years.
Id. at 3494.
Although Cummins had espoused a reading of intent limited to purpose in his unsuccess-
ful efforts to have such a requirement added to subsection 2(c), he objected to section 3,
presumably for purposes of argument, on the clear premise that the intent requirement
there specified could be satisfied constructively. He argued that it would prohibit any
criticism of military policy which might result in disaffection among the troops. Walsh,
again the bill's leading supporter, met Cummins' criticism with a reading of intent as
amounting to conscious purpose.
MR. Ct mmugs. Now, if any citizen saw great blunders being made, disaster im-
mediately before us, and if he could not rise and intentionally interfere by speech,
if possible, with the operations that were in progress, we have become indeed a
nation without spirit and without liberty.
They may be perfectly true; they may be highly necessary and desirable: but
if the intent is to interfere with the operations of the military or naval forces of
the United States, the man who utters or makes these statements becomes a
criminal. If this were the law in England. I wonder whether the-agitation which
led to the leadership and the promotion of Lloyd George would have taken place?
I wonder if the articles in the London Times which exposed the errors, the mis-
takes, the blunders which had been committed in the Dardanelles campaign would
ever have seen the public eye or been heard by the public ear? I wonder if the
agitation in France which finally led to the deposit of great power in the hands
of the premier would ever have taken form? Is it possible that Members of Con-
gress are to he told that in time of war no man can utter a criticism that may
interfere with the military or naval forces of the United States?
MR. WALSit. Mr. President. suppose that Lloyd George had known about some
fatal weakness in the English forces in the unfortunate and disastrous Gallipoli
Peninsula campaign. and he had told about that weakness. Does the Senator
desire to leave him at liberty to do so? Why. Mr. President. that was not the way
that the revolution was accomplished, either in England or in France. No one had
accused Lloyd George of seeking to create disaffection and dissention among the
troops in the field. He criticized, and so did Lord Northcliffe. very severely indeed,
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S. 8148, section 2(c) intact, was passed by the Senate on February 20,
1917, by the overwhelming majority of 60-10.4" The 64th Congress adjourned
before the House could act on the bill, and new espionage legislation was
considered in the 65th Congress.
(b) The Publication Provisions of S. 2. Section 2 of the Senate bill S. 2,
introduced in the 65th Congress, contained three subsections virtually identical
to the provisions of section 2, chapter 1, of S. 8148. The Senate debate was
more extensive than in the previous session, and most of the pertinent discus-
sion focused on subsection 2(c), identical to 2(c) of S..8148 except for the
addition of two cosmetic and largely self-cancelling provisos to the effect,
respectively, that the subsection should not be used to restrict discussion and
criticism of government policies, but further providing that no discussion or
criticism should convey information covered by the subsection." In the
Senate of the 65th Congress, 2(c) was defeated. Again the objections raised
against it, but not against 2(a) or 2(b), are valuable evidence of the Senate's
understanding of the limits on the latter provisions, ultimately codified as
794(a) and 794(b).
Section 2(c) was attacked on three different grounds. First, opponents
claimed that the provjsion would establish a system of prior restraint censoring
the general conduct of that campaign and the -wisdom of carrying it on at all ; but
neither of them could be accused, in anything that he said in connection with the
matter, either of a desire to create disaffection among the troops in the field or of
a desire to interfere with the military operations.
Id. at 360607.
By specifying intent as meaning purpose in section 3, Senator Walsh supported a
reading which would not prohibit general criticism of military plans aimed at changing
Policy, even though a predictable consequence might be some disaffection among the troops.
Even criticism of military policy which aired general information of use to the enemy,
Walsh made clear, would not meet the intent standard. On the other hand, if criticism
should disclose some specific "fatal weakness" in a military operation, Walsh suggests,
albeit his language is most unclear, that the intent requirement of section 3 might be
satisfied by imputation. Walsh seems to advocate a sliding intent scale as a matter of
evidentiary inference: where criticism is clearly aimed at persuading the people to back
a change of policy, no purpose to create disaffection or interfere with success will be
imputed (though both may occur), but when a specific weakness is disclosed, the revealer
could, in Walsh's words, "be accused ... of a desire to create disaffection among the
troops or ... to interfere with the military operations." Id. at 3607.
48. Id. at 3665.
49. Subsection 2(c) of S.2 provided:
Whoever, in time of war, in violation of regulations to be prescribed by the
President, which he is hereby authorized to make and promulgate, shall collect,
record, publish, or communicate, or attempt to elicit any information with respect
to the movement, numbers, description, condition, or disposition of any of the
armed forces, ships, aircrafts, or war materials of the United States, or with
respect to the plans, or conduct, or supposed plans or conduct of any naval or
military operations. or with respect to any works or measures undertaken for or
connected with, or intended for the fortification or defense of any place, or any
other information relating to the public defense calculated to be, or which might
be, useful to the enemy, shall be punished by a fine of not more than $10,000 or by
imprisonment for not more than 10 years, or by both such fine and imprisonment:
Provided. That nothing in this section shall be construed to limit or restrict, nor
shall any regulation herein provided for limit or restrict, any discussion, comment,
or criticism of the acts or policies of the Government or its representatives, or
the publication of the same: Provided. That no discussion, comment, or criticism
shall convey information prohibited under the provisions of this section.
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newspaper publication of news about the war. Second, the provision was
challenged as delegating unlimited power to the President to decide what
information should not be published. Third, objection was again made to the
lack of a specific culpability standard. In all three respects, 2(c) differed
from 2(b), which was accepted by the Senate virtually without debate. While
it cannot be shown with certainty which of these objections, or what combina-
tion of them, was responsible for the defeat of 2(c), the objection to the
absence of intent must be evaluated if the legislative history is to shed light
on Congress' understanding of the intent requirement codified in subsection
794(b). Obviously, if 2(c) was rejected on the prior restraint or executive
power grounds, the defeat would imply nothing about the intent provision
in 2(b). Two questions, then, must be answered concerning the objection to
lack of intent: 1) was it the main reason for the defeat of 2(c), and, if so,
2) what understanding as to the intent requirement of 2(b) rendered it,
and not 2(c), acceptable to Congress. Our first task, therefore, is to assess
the relative force of the objections to 2(c).
The debate concerning prior restraint is interesting for two reasons.
First, it indicates that the opponents to 2(c) tended to invoke the first amend-
ment strictly along Blackstonian lines, only as a prohibition on pre-publication
controls.50 Second, the supporters of 2(c) did not attempt to meet the objec-
tion directly. Walsh and Overman, for instance, never asserted that a system
of prior restraint would ' be constitutional ; instead, they contended that 2(c)
was intended to authorize only post-publication controls.51 Thus, while there
50. Senator Hiram Borah was the most vociferous critic of what he regarded as
2(c)'s authorization of a system of prior restraint.
Does not it clearly provide in advance of publication that unless the censor-to
wit, the President-consents, either direct or through his regulations, that upon
certain subjects publication shall not be had. And if you can make the President
a censor you can make anybody else a censor. Now, you may, if Congress has
any jurisdiction at all, punish for results of publication, but you can not set
up licensors.
55 Cote. Rac. 779 (1917). His comments reflect a squarely Blackstonian understanding
of freedom of the press. Borah had no doubt that newspapers could constitutionally be
punished after the fact for publishing material which injures the war effort, though, as
he made clear later in the debates, he doubted the wisdom of prohibiting publication of
war information:
You can not prohibit his publishing in the first instance, but you can make it a
!d, crime if there is any injurious result from the publication.
51. Walsh repeatedly stated that the bill did not envision pre-publication controls:
[Wle do not attempt in this proposed act to restrain the commission of the acts
made punishable, to prevent by the process of injunction the publication of such
articles. The publication of them is made criminal. So the bill under consideration
presents exactly the case of a libel statute in which a penalty is prescribed for
the publication of the article, and not of an injunction statute, which attempts to
prevent the publication of the article in the first place.
1!. at 786. Opponents of the measure, however, continued to attack 2(c) throughout the
dehates as an effort to authorize a system of prior restraint. Senator Brandegee argued
that the prohibitions on publication under 2(c) would likely be so vague that a system
ui prior approval would be essential to forestall chaos. Id. at 838.
Senator Ashurst agreed that the effect of 2(c) would be to set up an unconstitu-
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was strong opposition to censorship, we strongly doubt that this objection led
to the defeat of 2(c). We believe the Senate did not reject 2(c) on an inter-
pretation of its meaning not required by its language and vigorously rejected
by its chief proponents. The issue was cast in terms of the propriety of punish-
ment, not whether publication might be enjoined.52
More meaningful in the debate, we believe, was the objection to the
provision's broad delegation to the President of authority to promulgate
regulations prohibiting publication of an unlimited range of military or de-
fense information. Fear of unfettered executive power appeared, at least
initially, to be the most politically potent objection to 2(c). Senator Brandegee,
for example, argued that the section would give the President "authority to
make any regulations he sees fit about what people say to each other ... [and
about] what information newspaper reporters shall obtain. ..."6E Similarly,
Senator Hiram Johnson warned: "We may well pause ... lest in our tender-
ness for democracy abroad we forget democracy at home."" Other Senators
took the objection a step farther, arguing that the unlimited power granted
by the measure could not feasibly be exercised by the President, and therefore
would be delegated by him to subordinates in the War Department as
Supporters of 2(c) did not claim that the measure provided concrete
standards limiting the President's power to regulate publication by punish-
ment after the fact. Rather, they argued that delegation was constitutional,
that legislating categories of protected information in advance was an
impossible task, and that it was necessary in wartime to trust Presidential
authority.6' The delegation issue, then, was a source of substantial conflict be-
tween supporters and opponents of 2(c), was frequently raised in connection
with various efforts to narrow or strike 2(c), and was undoubtedly an impor-
tant factor in the Senate's rejection of the section.57
tional system of prior restraints. Id. at 2004, 2010. Senator Walsh. however, continued
to insist that a prior restraint reading of 2(c) was not intended:
I want to say to the Senator that those of us who are responsible for the
language do not give it that interpretation.
Id. at 2010. Senator Knox joined Walsh in challenging Borah's insistence that 2(c)
would establish a censorship system. Id. at 836.
52. Thus, we disagree with justice White's apparent position that the rejection of
subsection 2(c) revealed congressional antipathy to prior restraints, but not opposition
post-publication punishment. Sec 403 U.S. at 733-34. See also Carroll, Freedom of Sperrh
and of the Press in War Time: The Espionage Act, 17 Mica. L. REV. 621, 627 (1919)
("The real question, therefore, was whether any real restraint could be laid upon publica-
tion in war time.").
53. Id. at 784.
54. Id.
55. See, e.g., the fears expressed by Senator Lodge, id. at 781, and Senator Sherman.
Id. at 2113.
56. See, e.g., the colloquy between Senators Colt and Thomas. Id. at 789-90.
V. See, e.g., the remarks of Senator Johnson:
War is the natural enemy of freedom and democracy. We have already
conferred practically autocratic powers financially; we doubtless shall in the
future, where imperative necessity demands it. accord extraordinary and un-
heard-of powers to our President: but we must stop short of successful assault
upon democracy's basic principles. No free people should be subjected to undefined
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In the final analysis, however, the absence of an intent requirement was,
in our opinion, the most significant objection to 2(c). Supporters of the
measure advanced a narrow definition of 2(b)'s intent requirement in order
to demonstrate the need for the unconditioned prohibition on publication found
in 2(c). For example, in an important dialogue with Senator Kellogg early
in the debate, Senator Walsh explained why he believed 2(b) was not suffi-
cient to protect the military effort:
MR. WALSH ... [Slubdivisions (b) and (c) are intended to meet
entirely different conditions. Of course, all will agree that the things
denounced by subdivision (b) should be punished; that is, the gather-
ing of these things with the intent and purpose to convey them to the
enemy, but . . . subdivision (c) is intended to reach the case of a
publication of these things without any sinister purpose at all. An
energetic and enterprising newspaper reporter, with no purpose at all
to aid the enemy, but simply with the very commendable purpose of
extending the circulation of his paper, collects a whole mass of this.
information and publishes it. Another man may gather it and publish
it, having some consideration for his own political future or some-
thing of that character, having no purpose whatever that it shall be
communicated to the enemy.
Ma. KELLOGG. I ask the question with a view of eliciting from the
Senator from Montana whether in his opinion subdivision (c) is
necessary after enacting subdivision (b) ? I did not hear the discus-
sion before the Judiciary Committee, but I take it that the Senator
from Montana does not think subdivision (b) is sufficient.
Ma. WALSH. I should say not. I should say, in the first place, that
we ought to go quite beyond the case of the man who accumulates the
stuff and publishes it with the treasonable purpose of aiding the
enemy. We ought to go to the man who incautiously does it, without
any such deliberate purpose, but whose acts really are as destructive
to our interests as the acts of the man who went about to do it for
the very purpose of having the information communicated to the
enemy.
MR. KELLOGG. Would the Senator from Montana think there was
any danger of an innocent person seeking information being punished
under this act?
MR. WALSH. I think there is. I have no doubt that there is that
danger ; and seeing that it is a war measure, applicable only in time
of war, the committee believed that we could well afford to subject
the innocent citizen to whatever discomfort might come to him by
reason of this act, rather than to allow promiscuous publications to
be matte that might be invaluable to the enemv.5s
At first, some opponents of 2(c) did not accept Walsh's narrow under-
and indefinable laws. To subject a people to unwritten penal statutes, resting
from day to day in the bosom of any one man, however exalted, in nebulous and
elastic language, even where no evil intent exists by construction of any one
official, however high and highly respected, to make felons of our people, is an
excursion into autocracy in America that can not be justified or excused by our
desire to destroy autocracy in Europe.
Id. at 841.
58. Id. at 787.
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954 COLUMBIA LAW REVIEW (Vol. 73:929
standing of 2(b)'s coverage; apparently they were not willing to argue for
the rejection of 2(c) on the premise that 2(b) reached only, in Walsh's
words, "the man who . . . publishes . . . with the treasonable purpose of
aiding the enemy." Senators Borah and Brandagee, for example, in justifying
their opposition to 2(c), suggested that the intent requirement of 2(b) should
be interpreted as constructive, a reading that would help make 2(c) unneces-
sary.59
At a later and critical stage in the debate, however, the opponents of
2(c) moved to a markedly narrower interpretation of 2(b)'s intent require-
ment. This different understanding was revealed in discussion of Senator
Hiram Johnson's motion to strike 2(c) from S. 2 and provides the clearest
evidence in all the legislative history of the 1917 Act of the consensus among
59. The full colloquy between Senators Borah and Brandegee made use of construc-
tive intent:
Ms.. BRANDEGa3. As I understand the Senator from Montana (ML WALSH],
his question is, If a man publishes in a paper plans of our military authorities
which do become of use to the enemy, although the publisher did not intend
that they should, is it within the power of Congress to pass any law to punish
him for publishing such things, although he did not intend to furnish aid or
comfort to the enemy?
Ma. Boswx. The Senator says with the absence of intent?
Ms. BRANDaGas. Yes; with the absence of intent on his part; and yet the plans
published are of such a nature that a wise man would have seen that it would
furnish aid and comfort to the enemy, but he did not see the effect of what he
was doing.
Ms. Boswa. I apprehend the rule would be invoked there that every man intends
the natural consequences of his own act, and in that respect there would be not
an actual intent but a constructive intent.
Ma. BLANDiom. I think so myself.
Id. at 834.
Senator Thocna also read intent as broader than Walsh's "sinister purpose" in urging
that 2(b) was sufficient:
The element of intent is an essential ingredient to the commission of a criminal
offense. Some acts are so reckless, so utterly indefensible and unjustifiable, that
the law infers the intent from the act. For example, if I drive an automobile
recklessly down Pennsylvania Avenue without regard to the rights or the safety
of others, and somebody is injured or killed, the law presumes, and ought to pre-
sume, an intention to accomplish that result, because of my reckless disregard
of the laws of my country and of the rights of others. In other instances the intent
may not be predicated directly upon the act, but depends upon independent proof
-for its establishment. In other words, if the intent is not obvious from the act.
it must be established by a proper line of testimony or there can be no conviction.
It is a fundamental element of the criminal laws of this country that offenses
against them must be committed with criminal or unlawful intent; and in that
particular the recitals of subsection (b) are in entire harmony with this
legal requirement. When we come to subsection (c), however, no element of
intent is there involved.
The President may make a regulation, and instantly the doing of any of the
things mentioned in subsection (c) innocently, ignorantly, or in good faith con-
stitutes a crime as completely as the doing of the same thing by the worst
traitor in the United States, with full intent to obtain information and com-
municate it to the enemy: and what is, I think, equally important, it is the
regulation of the Executive which imposes such a tremendous responsibility,
which creates such tremendous consequences to the citizen, and not a statute
of the United States. This can not be under our Constitution if it be any more
than a scrap of paper.
I believe that subsection (b) covers the entire subject....
Id. at 848.
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both supporters and opponents that a reading of intent in 2(b) to mean
purpose was the premise on which the vote to strike 2(c) proceeded. The
final colloquy between Walsh and Johnson pushed the debate to concrete
consideration of publication problems, in contrast to the abstract and obfusca-
tory level preferred by most of the Senate opponents of the publication
provision:
MR. WALSH. Mr. President, [the motion to strike 2(c)] signifies,
as a matter of course, that there is to be no restriction whatever upon
the publication of any matter concerning the naval or military forces,
or the disposition or movement of the troops, or works intended for
the fortification or defense of any place, or anything else the publica-
tion of which is unlawful, unless, as provided in subdivision (b), it
is intended that it shall get to the enemy. I do not desire to say any-
thing upon that, but I merely desire to inquire of the Senator from
California if he was present in the Chamber last night when I in-
serted in the Record the publication in the New York paper of all
about the Navy secret, the spreading of a net across New York
Harbor to intercept the entrance of submarines?
MR. JOHNSON OF CALIFORNIA. In response to the Senator, I will
state that I was present. The purpose is to strike out all of subsec-
tion (c) ; and the bill contains ample powers, ample crimes, and
ample penalties to reach any intentional design to do aught that is
wrong.
MR. WALSH. Now, Mr. President, I want to propound a further
inquiry to the Senator from California. I want to inquire of him
whether, in his judgment, the publication of such information as that
to which I called the attention of the Senate last night should be
prohibited!
MR. JOHNSON OF CALIFORNIA. That is not the question. The ques-
is one of balancing disadvantages and wrongs. It would be infinitely
better that there be such a publication than that the mouths of the
citi:ens of the United States be gagged or the press be muc:led.
MR. WALSH. I am obliged to assume that the Senator answers
"no"; that there are contrary considerations of a public nature of so
weighty a character as that we ought not to prohibit the publication
of information of this character. Have I interpreted the Senator cor-
rectly ?
MR. JOHNSON OF CALIFORNIA. I assume that the Senator has in
part. It is exceedingly difficult to hear over here.
THE PRESIDING OFFICER. The Senator will suspend for a moment.
The Senate will be in order.
MR. JOHNSON OF CALIFORNIA. The Senator may interpret my con-
clusion to be this-that there are crimes sufficiently described in this
particular bill, there are in it enough provisions to meet every re-
quirement that is present in this Nation, and that there. is no occasion
at this particular time to gag either the press or the people of this
country.
MR. NVALSII. Of course that is general, and is no. answer to my
question as to what the view of the Senator is as to whether the pub-
lication of information of this character should be prohibited. I take
it that his answer is that. in his judgment. it should not be, that the
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956 COLUMBIA LAW REVIEW [Vol. 73:929
papers should be free to publish information of this character if they
see fit to do so.
MR. JOHNSON OF CALIFORNIA. The distinguished Senator may take
it just exactly as he intellectually determines it to be. The answer I
have made to him, and the answer is, I repeat, that while there may
be things done that ought not to be done, things that we would not
justify and would not desire to be done, the harm that is done by an
act of this sort infinitely transcends the harm that would be done by
the other sort of act.
MR. WALSH. I so understand the Senator ; that is to say, that there
are public considerations of so weighty a character that we ought not
to attempt to prohibit the publication of matter of this character. That
is the question on which the Senate is now called upon to vote.60
The next morning the Senate reconvened and almost immediately pro-
ceeded to a vote. The Johnson amendment to strike 2(c) was carried by one
vote-39 yeas, 38 nays, 19 not voting?1 and the Senate, by the narrowest
margin, rejected general controls on publication of military information not
conditioned on the intent requirement now found in section 794(b).
How did the successful opponents of 2(c) view the prohibition in 2(b)
of S. 2 to which they did not object? Should we look to the early statements
that interpreted 2(b) as reaching instances of constructive intent or to the
later statements that held that 2(b) reached only publication with a clear
purpose to reach the enemy?
The reasons for the discrepancy of views about 2(b) are not clear in the
legislative history. It may have been that no consensus on the meaning of
intent in 2(b) existed among the opponents of 2(c), and that it happened by
chance that Borah, Brandegee, and Thomas, who spoke out early against 2 (c),
believed in a constructive interpretation of 2(b)'s intent requirement, while
Cummins and Johnson, who carried the weight of opposition at the time 2(c)
was voted down, believed that 2(b) should be read as requiring purpose to
communicate to the enemy. But the issue was posed most concretely in the
Walsh-Johnson colloquy just before the vote on the motion to strike 2(c)
was taken. We know from the record that Borah, Brandegee, and Thomas
were present for the vote taken immediately following the Walsh-Johnson
colloquy and did not seek to challenge Walsh's -characterization of the issue.
The second possibility is that the opponents' shifting assessment of the
reach of 2(b) was tactical. Opponents to 2(c) cannot have been confident at
60. Id. at 2111-12 (emphasis added). Senators Cummins, Smith and Reed took po-
sitions similar to Johnson. Id. at 2164-65. The story about the submarine net across New
York Harbor to which Walsh referred was initially discussed by him and put in the
Record the previous evening. Id. at 2073. The story had a powerful effect on the Scnatc'-
consideration of 2(c). As Senator Underwood put it, "this vote seems to turn on thy.
question, by way of illustration, of the stretching of a net in New York Harbor. .
Senator Overman added further force to Walsh's reference about the submarine nets by
complaining that "the newspapers are constantly publishing the dates of sailing of
sels." Id. at 2114.
61. Id. at 2166. Overman made one last effort to reclaim 2(c) by seeking to add the
Cummins's disclosure version of 2(c), see note 63 infr.t. to the bill. This amendment \%d'
more resoundingly defeated: 48 nays, 34 yeas: and 14 not voting. Id. at 2265.
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the outset of debate on S. 2. Cummins' attack on the parallel provision of S.
8148 had been overwhelmingly beaten in the previous session, and the compo-
sition of the Senate was the same. Doubtful of their strength, opponents of
2(c) might initially have urged a broad understanding of 2(b) to help make
the former provision seem unnecessary. However, as the debate proceeded,
the opposition to 2(c) gathered strength, clearly manifested in successful
efforts of opponents of 2(c) tQ narrow it down in various respects. For ex-
ample, Senator Smith succeeded in winning Overman's acceptance and the
Senate's agreement to a series of amendments which narrowed 2(c) to cover
only publication, and also narrowed the categories of information covered
by the provision.sa Following this limited early success, Cummins tried to
alter the basic thrust of 2(c) from a control on publication to an authorization
for controls on initial disclosure from within the Government." While Cum-
62. Senator Smith of Georgia first moved an amendment to 2(c) to strike the words "or
which might be" within the provision's original phrase "information relating to the
national defense calculated to be or which might be useful to the enemy...:' Id. at 872.
He also moved to strike the words "collect, record, . . . or communicate," thus leaving
2(c) applicable only to publication. Further narrowing by Smith included striking the
phrases "or attempt to elicit" and "or supposed plans or conduct." Senator Overman
announced his acceptance of all the Smith amendments, and they were agreed to. Id. at 876.
63. Cummins proposed to alter the basic conception of 2(c) by converting it from a
control on publication to a control ow the initial disclosure from within the government.
Cummins' proposed disclosure provision read:
In time of war the President is hereby authorized to prescribe and promul-
gate reasonable rules and regulations, not abridging the freedom of speech or of
the press, for the purpose of preventing the disclosure to the public, and thereby
to the enemy, of information with respect to the movement and disposition of any
of the armed forces of the United States or the plans of naval or military opera-
tions ; and whoever in time of war shall willfully violate any such rule or regula-
tion shall be punished by a fine of not more than $10.000 or by imprisonment
for not more than five years.-or by both such fine and imprisonment: Provided,
however, That no such rule or regulation shall apply to the proceedings of the
Congress of the United States nor to the debates therein.
Cummins explained the purpose of his alteration of the provision to one directed at dis-
closure rather than publication in terms strikingly apposite to the Pentagon Papers
situation:
If the purpose is not obvious, I am afraid I can not make it clear. I assume
that the President can, in so far as his supervision goes, prevent the disclosure
by the several departments of information relating to the Army and the Navy;
but suppose it is disclosed to individuals or to the newspapers, then' the Presi-
dent's power ceases and the individual who communicates or the individual who
publishes can not be punished. The purpose of this paragraph is- to inflict punish-
ment upon the person who in violation of the rules of the President discloses to
the public the information. I think that is the only object.
Id. at 881.
Cummins urged that the category of information should be reduced in scope. He
argued that only troop or naval movements should be covered, stating very clearly his
objection to the breadth of the phrase "relating to the public defense":
If Congress desired to give to the President of the United States the right to
prohibit anybody from securing any information with regard to the movements of
the Army and the Navy, I would not feel disposed to object; but this paragraph
-and it is characteristic of the entire chapter, so far as that is concerned-
extends the operation of secrecy to every energy of the American people. There
is nothing in which the American people can now engage which is not related to
the national defense. It is now the supreme duty of the Republic to prepare for
the national defense. It is the one thing which consumes and absorbs the thought
and the purpose of the American people.
Id. at 877. Cummins also spoke to the first amendment implication of his proposal:
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mins was unsuccessful, he failed only by six votes. From that point on, pre-
sumably, it was apparent that the Senate of the 65th Congress had a more
dubious outlook toward general publication controls than did its predecessor
in the 64th Congress. 64 As the strength of the opposition to 2(c) became even
clearer when the Senate moved to consider successive motions to strike, it
may have dawned on Johnson. Cummins. and the others that they could defeat
2(c) even assuming a narrow interpretation of 2(b).
The espionage proposals provoked enormous interest in the country, fired
by extensive coverage in the press. The debate on 2(c) was filled with
editorials, remonstrances from press associations, and petitions from con-
cerned citizens. In view of the mounting public concern, an assumption of
careful coordination among opponents of 2(c) does not seem unwarranted.
Whether the dichotomy in the opponents' understanding of the intent
requirement of 2(b) is ascribed to tactics, confusion or lack of agreement, .
surely it is better to give weight to the later and concrete statement rather
than the earlier and general. Both Walsh and Overman saw 2(b) as Johnson
understood it in the end. Though the Senate debates on 2(c) are far from
clear, we believe a careful consideration of the legislative record in the Senate
can lead only to the conclusion that the Senate rejected 2(c) on the assumption
that the intent standard of what is now subsection 794(b) was understood to
require a showing of purpose to communicate to the enemy.
My amendment differr mainly from the committee's proposal in this, that
it limits the subjects upon which the President can make the regulations of
secrecy to the movement of our Army and our Navy-that is, our armed force-
and to our plans for military and naval operations. I think the court will hold,
if the question is ever submitted to it, that that does not constitute an abridgment
of the freedom of the press or an abridgment of the freedom of speech. I think,
upon the doctrine that Alexander Hamilton himself laid down so eloquently and
conclusively in the somewhat famous libel case which involved Thomas Jefferson,
a statute of that kind can be sustained.
But when we advance beyond that and take in or embrace all the things in
the country which may relate to the public defense, and when we attempt to
close the columns of the newspapers to all information relating to everything
which may be interesting to the enemy but which touches the national defense:
when we attempt to lay the obligation upon every citizen that he shall not publish
or communicate, for there is no difference between the two words in substance:
when we attempt to prohibit every citizen from saying anything with regard to
the vast multitude of subjects which relate to the public defense, I think we
offend the Constitution: I think it is an abridgment of the freedom of speech
and the freedom of the press, and I think any court in America to which that
question is submitted will declare that such a law followed by such a regulation
is unconstitutional, because it is an abridgment of speech and an abridgment of
the freedom of the press.
Id. at 880. Cummins' substitute was rejected by a vote of 40 to 34 (22 not voting). Id. at
886.
64. A major success for the opponents of 2(c) came when the Senate accepted an
amendment offered by Senator Thomas which followed both the disclosure and the
troop movement pattern which had been earlier offered unsuccessfully by Cummins. Id. at
2111. The information subject to regulation under the Thomas amendment was the move-
ment. etc. of the armed forces in military operations. Senator Walsh attempted to expand
this definition to include "the plans of" military operations. Cummins argued against the
expansion because he wanted to be sure that any limitation on the right of publication he
"confined to matters purely military in character.' Id. at 2110. Walsh was defeated and the
Thomas amendment passed.
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(c) The House Debates on Section 794: H.R. 291. The bill considered
by the House, H.R. 291, was introduced on April 2, 1917, the same day
President Wilson asked Congress to declare war on Germany. Alhough sec-
, tion 4 was comparable to S. 2's subsection 2(c), the House bill had no
counterpart to subsection 2(b) of the Senate bill, and consequently no pre-
decessor provision to section 794(b)." The House debates are both simpler
than those in the Senate-because most of the intelligent commentary was
provided by one extraordinarily articulate and influential Congressman-and
less relevant to the meaning of 794(b)-because H.R. 291 had no such pro-
vision to serve as a convenient contrast to section 4.
The House debate on section 4 paralleled the Senate discussion of sub-
section 2(c) : the objections were frequently raised that the provision would
delegate unlimited power to the President," that it would authorize a system
of prior restraints,87 and that the information covered was entirely vague.es
However, as was the rase in the Senate, the absence of an intent requirement
was the preponderant factor in the ultimate defeat of section 4. Underlying all
these objections was the theme that, especially in time of national emergency,
the people need a free press to facilitate informed discussion and criticism of
government action." Section 4 was initially struck by the House, but then a
substitute for it was passed whicH'put the House into disagreement with the
Senate and left the issue of publication controls to the Conference.
The most powerful opponent of section 4 was Congressman Graham of
Pennsylvania, a member of the judiciary Committee, who championed the
amendment to strike the provision and defeated it again when it reappeared
in the conference report. His views in opposition, even more so than the
views of Cummins in the Senate, gave expression to the consensus of success-
ful opponents of section 4.70
65. Section 4 of H.R. 291 provided:
During any national emergency resulting from a war to which the United
States is a party, or from threat of such a war, the President may, by proclama-
tion, declare the existence of such emergency and, by proclamation, prohibit the
publishing or communicating of or the attempting to publish or communicate any
information relating to the national defense which, in his judgment, is of such
character that it is or might be useful to the enemy. Whoever violates any such
prohibition shall be punished by a fine of not more than $10,000 or by imprison-
ment for not more than ten years, or both: Provided. That nothing in this
section shall be construed to limit or restrict any discussion, comment, or criticism
of the acts or policies of the Government or its representatives, or the publication
of the same.
66. See, e.g., remarks by Congressman Dillon, id. at 1712, Congressman Chandler,
id. at 1751-52, and Congressman Graham. Id. at 1705.
67. See, e.a., remarks of Congressman Towner, id. at 1750-51, and Congressman
Fess. Id. at 1773-74.
68. See, e.g.. remarks by Congressmen Walsh and Igoe, id. at 1601, and Congressmen
Gordon and Webb. Id. at 1715.
69. See, e.g., remarks of Congressman LaGuardia, id. at 1701, and. Congressmen Wood
and Madden. Id. at 1718.
70. Given the prominence of Graham's views in our analysis of the House's under-
standing of the culpability standards of the Espionage Act, it may be of interest to note
that he was no stranger to such conceptual problems in the criminal law. Holder of an
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In criticizing section 4, Graham focused on the absence of an intent
requirement and made clear that the objection would be satisfied only by
inclusion of a standard equating intent and bad purpose.71 Like Johnson in
the Senate, Graham recognized that striking section 4 would leave newspapers
free to publish material which might be useful to the enemy.72 As the follow-
ing dialogue indicates, he was willing to pay this price in order to preserve a
press free to criticize national policy.
Ma. BATHRICx. Before the gentleman leaves section '4 I would
like to ask him does he think that any information relating to national
defense that might be useful to the enemy should be published?
MR, GRAHAM OF PENNSYLVANIA. I do not.
MR. BATHRICx. If you strike out this section, everybody will have
a right to publish that, will they not?
MR. GRAHAM OF PENNSYLVANIA. They have the right today.
MR. BATHRICK. I understand that ; but the law is for the purpose
of prohibiting the right of anyone to communicate information to the
enemy that might injure the country.
MR. GRAHAM OF PENNSYLVANIA. I think anybody who does it with
a guilty purpose can be caught and dealt with under the preceding
sections of the bill, and anybody who merely publishes matters here
at home and does it in the discharge of what seems to him to be a
duty by way Af criticism ought not to be prosecuted nor punished
under any portion of the bill.73
After a series of unsuccessful attempts to narrow the section to meet
particular objections, Graham's motion to strike section 4 was accepted by
I.L.B. from the University of Pennsylvania, Graham was the elected District Attorney of
Philadelphia County from 1880 to 1899. For the next eleven years, Graham was Pro-
fessor of Criminal Law at the University of Pennsylvania until his election to Congress
in 1912. 1 WHO WAS WHO IN AMERICA 1897-1942 at 475.
71. Graham's opposition to section 4 was not based on constitutional objections. He
indicated that he was not fully persuaded by the constitutional objections to section 4.
either that the provision violated the first amendment or that it unconstitutionally dele-
gated power to the President. Id. at 1718.
72. The suggestions that have been made on this floor as to the treatment of
soldiers, how they are fed, clothed, and handled; the policy under which the war
is being conducted, and a hundred subjects that would spring to our minds that
ought not to be prohibited but that ought to be freely discussed for the welfare
of the country, are subjects of national importance whose discussion ought not to
be left to any one man or any set of men; and it is better to meet whatever evil
may ensue from the discussion of them than to throttle the discussion and prevent
the airing of evils that exist which will make against the welfare of the country
and its success in the war. My own mind has reached the conclusion with respect
to this section, and I give notice now. Mr. Speaker, that it is my intention to
move to strike out of this bill section 4 [applausel and to leave the bill in all of
its other provisions, with whatever slight amendments your wisdom may think
ought to be made to them, to stand as the act of this House.
Id. at 1719.
73. Id. at 1719. Graham indicated that one wayto correct the overbreadth of section
4 would be to add an intent requirement, but he feared such an addition would make
convictions nearly impossible to procure.
The difficulty is apparent to anybody, for that would relegate the whole
question to a jury, the jury would determine every fact in connection with it, and
the probabilities are that except in some extreme case that would inflame the
public mind and drive men away from a cool, calm, deliberate judgment; you
would never secure a conviction in a case of the violation of the prohibition.
Id. at 1720.
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the House.74 The vote was 221 in favor, 167 against, 1 answering "present,"
and 43 not voting. Immediately after this vote, however, Congressman Gard
introduced a variation of section 4 which, he argued, met the objections to
earlier versions by legislating what was to be prohibited and giving the jury,
rather than the President, final authority to decide what information should
be deemed "relating to the national defense" and "useful to the enemy."71"
Graham again objected to the lack of an intent requirement and argued that
Gard's version was in fact worse because it added an element of uncertainty by
leaving the vital determinations to the jury.76 Despite these objections, the
Gard amendment was adopted by a vote of 191 yeas, 185 nays, 1 "present,"
and 54 not voting.77
(d) The Conference Reports and Final Enactment of 794. After separate
74. Id. at 1816. The effort to perfect section 4 by amendment began with an amend-
ment introduced by Chairman Webb designed to meet the delegation objection. Webb's
amendment simply changed the form of section 4 by authorizing the President to designate
information and then making publication of such information a crime. Id. at 1765. Webb's
amendment was accepted. Id. at 1815. Webb also struck the words "or communicate"
from the section. Id.
Other amendments designed to meet particular objections were unsuccessful. For
example, Congressman Dempsey offered an amendment which would have removed all
Presidential discretion by converting the section into a flat ban on publication of
"information relating to the national defense which is of such a character that it is or
might be useful to the enemy." Id. "at 1771, 1815. Congressman McCormick sought un-
successfully to amend section 4 by enumerating the specific types of information publica-
tion of which the President could prohibit by proclamation. Id. at 1771, 1815.
75. The Gard version of section 4 provided:
During any national emergency resulting from a war to which the United
States is a party, or from imminence of such war, the publishing willfully and
without proper authority of any information relating to the national defense
that is or may be useful to the enemy is hereby prohibited, and the President is
hereby authorized to declare by proclamation the existence of such national
emergency, and is hereby authorized from time to time by proclamation to
declare the character of such information which is or may be useful to the enemy,
and in any prosecution hereunder the jury trying the cause shall determine not
only whether the defendant or defendants did willfully and without proper
authority publish the information relating to the national defense as set out in the
indictment, but also whether such information was of such character as to be
useful to the enemy: Provided, That nothing in this section shall be construed
to limit or restrict any discussion, comment, or criticism upon any fact or any
of the acts or policies of the Government or its representatives, or the publication
of the same.
Whoever violates the foregoing provision shall upon conviction thereof be
punished by a fine of not more than $10,000, or by imprisonment for not more
than 10 years, or both.
!d. at 1817.
76. [I]t says that the jury shall determine whether or not the information was
calculated to give aid and comfort to the enemy, or whatever the particular
language may be in the proposed substitute-"useful" is the word. There- is
nothing in this with regard to the intent, and the vice of all of the preceding
legislation circled around that thought. Where a man does a thing with intent to
hurt his country, then he ought to he punished: but when an individual or a
newspaper criticizes the act of the Government with the hope of bettering
conditions for his Government, although what he may say would in some aspects
of it be considered by a jury as useful information to the enemy, that man, I
say, in the interest of liberty and the welfare of the country ought not to be
prosecuted or convicted.
Id. at 1818. Congressman Dillon sought to amend the Gard version by adding a require-
ment of "intent to aid the enemy" but his amendment was rejected. Id. at 1819.
77. Id. at 1819.
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action on the Espionage Act of 1917 in the House and the Senate, the provi-
sions now codified in 18 U.S.C. 794(a) had been passed, virtually without
debate, in both chambers. What is now codified as 794(b) had been passed in
the Senate, but no comparable provision existed in the House bill. The provi-
sion granting the President power to prohibit publication of defense informa-
tion, section 2(c) of S. 2 and section 4 of H.R. 291, had been struck in both
the Senate and the House, but Congressman Gard's variation on section 4
had passed the House by a narrow margin.
The conferees on the Espionage Act-Senators Overman, Fletcher, and
Nelson, and Representatives Webb, Volstead, and Carlin-made the Senate
bill the basis for their agreement, thereby including 794(b). However, they
added to the conference report still another broad prohibition on publication."
This provision provoked heated partisanship when the report was first pre-
sented to the House. Republicans caucused and decided as a matter of party
policy to oppose it. Chairman Webb responded by characterizing opposition to
the provision as unpatriotic,7? which led opponents of the measure to respond
78. The Conference Report version of section 4 provided:
When the United States is at war, the publishing willfully of information
with respect to the movement, numbers, description, or disposition of any of the
armed forces of the United States in naval or military operations, or with respect
to any of the works igtended for the fortification or defense of any place, which
information is useful to the enemy, is hereby prohibited; and the President may
from time to time by proclamation declare the character of such above described
information which in-his opinion is not useful to the enemy, and thereupon it
shall be lawful to publish the same. In any prosecution hereunder the jury trying
the cause shall determine not only whether the defendant did willfully publish
such information but also whether such information was of such character as
to be useful to the enemy: Provided, That nothing in this section shall be con-
strued to limit or restrict any discussion, comment, or criticism of the acts or
policies of the Government or its representatives or the publication of the same,
if such discussion; comment, or criticism does not disclose information herein
prohibited.
Whoever violates this section shall, upon conviction thereof, be punished by
a fine of not more than $10,000 or by impisonment for not more than five years,
or both.
Three new aspects of this version should be noted. First, the provision specifically
defined the types of information to which its prohibition applied, and contained no
general ejusde,n genesis category. Second, the President's proclamation power was to be
affirmative rather than prohibitory; the Executive was empowered to declare what
information (presumably, either specifically or by type) within the defined categories
could legally be published. Finally, the jury was required to find that the information
published "was of such character as to be useful to the enemy."
79. Webb's statement was as follows:
In fact, gentlemen, unless this House wants to put itself on record as favoring
the right of the newspapers to furnish and publish information as to the move-
ment, numbers, and disposition of the armed forces of this country in time of war
in a naval or military operation, which information is useful to the enemy, I
think the House ought to support the amendment. In other words, it seems to me
that if you want the newspapers of the country to publish that kind of informa-
tion, then you will vote to recommit this bill with instructions to strike out section
4.
Id. at 3131.
This opener. led to the following colloquy with Congressman Slayden:
MR. SLAYDEN. I would like to know if the gentleman really believes the state-
ment he made in the first part of his remarks, that a man who could not support
this measure would be in favor of having information conveyed to the enemy?
MR. WEBS. No; I did not say that.
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angrily with the charge that an unsuspecting House had been duped by
passage of the Gard amendment following the acceptance of Graham's motion
to strike.so
Congressman Graham now used the intent requirement in section 2 of
the conference bill to buttress his contention that publication should not be
criminal absent a showing of purpose to aid the enemy.
There are other sections of this title, the first and second, under
which the obtaining of many things and any information connected
with the national defense to benefit or aid the enemy is made a crime,
and in the second section the publication of any information with
reference to the national defense for the same 'purpose is made a
crime for which the man who willfully and intentionally and with
the purpose of aiding the enemy, which facts must be found by the
jury, published the information, shall be punished under the severe
penalties that are prescribed in those sections.
No man can sit down and sanely and fairly read these two sections
without arriving at the conclusion. that there is ample power for the
punishment of any villainous newspaper that would attempt to pub-
lish anything for the benefit of the enemy ; but I want to ask your
attention, my friends, to this distinction. A publication might be
alleged to be one that gave information to the enemy, and, in fact, to
some degree might do so, and yet be a subject that the papers of the
L
Ma. SLAYDEN. The gentleman said what would be interpreted that way.
Ma. Wait. Of course, I do not mean or say that. But I mean this, that what is
prohibited here is the willful publication of information concerning the armed
forces of the United States in military or naval operations which would be useful
to the enemy. Now, if you vote that down, you can construe your act just as you
please.
Id. at 3132.
Webb repeated his charge of partisanship at the conclusion of debate, when he quoted
the Wilson letter.
I want to say, as a man who loves his country above all other countries,
that I regret that there was any effort to make a partisan matter of this censor-
ship bill. I do not believe that you ought to be bound, especially the 26 Members
who voted for the Gard amendment, ought to be bound by your Republican con-
ference. I say it regretfully that our Republican friends for the first time since
the declaration of war have undertaken to make a partisan question of these
matters of vital importance to the national defense. (Applause on the Democrat
side.] Oh, yes; we know that they wanted to coerce the 26 Republican Members
who voted for the Gard amendment.
Id. at 3143.
80. MR. Haasiy. Mr. Speaker, when this House, after the able constitutional
argument of the gentleman from Pennsylvania [MR. GRAHAM], and the eloquent
appeal for liberty from our beloved Speaker, voted by a huge majority to con-
demn the attempt to deprive the American citizen of the priceless right of free
speech and a free press, the friends of liberty everywhere rejoiced that the Con-
gress still represented the people of the United States. (Applause.)
And yet, I regret to say it to our shame, on that same day of freedom's
victory, a small minority of this House. taking advantage of empty seats, under
the guise of an amendment passed on to the Senate this tyrannical measure. And
now under the plausible argument of an infamous compromise the administra-
tion again demands that we crucify liberty and then, like Pilate of old, we are
to wash our hands before the people and declare that we are innocent of this
shameless crime.
Id. at 3134. Congressman Gard himself, moreover, disapproved the Conference Com-
mittee's provision. Gard objected that section 4 went beyond his amendment in authorizing
the President, in effect, to set entire categories, of information outside the area of per-
missible publication.
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country as a free press and the men of the country in the exercise of
their freedom of speech ought to discuss, and the question would be,
Is it more harmful than beneficial? It may be something that would
give information to the enemy, but at the same time if left without
exposure it might bring a calamity upon one's own country. Under
such circumstances, who is to muzzle the press or who is to leave it
to the jury to say whether or not on the single and exclusive issue
that it is helpful to the enemy, for that is what alone is left outside of
"willful publication" to the jury to try?81
Supporters of section 4 also adopted a purpose construction of the intent
requirements in the 793 provisions and in 794(b) in order to argue the need
for section 4:
MR. Dvza. This section applies to individuals as well as news-
papers. Suppose a newspaper published the movement of a ship
going out to sea, a transport, and by reason of that publication the
enemy sinks the transport and drowns the men on board. Would
there be any punishment unless this section were agreed to?
Ma. VOLSTEAD. No ; not unless you could show that the editor had
published it and put the publication into the hands of the enemy. It
would then come under another section. This section is designed to
prevent publications of a character that are likely to reach the
enemy and that are likely to be injurious to the country.82
Thus, the House debate th'Ei the conference report paralleled the Johnson-
Walsh dialogue in the Senate at the time 2(c) was struck from S. 2, with
consideration of whether the advantages of freedom to criticize the Govern-
ment's war policy outweighed the utility to the enemy of such concrete infor-
mation as the sailing dates of transports.
Just before the vote on the conference report, Chairman Webb concluded
his efforts by reading to the House a last-minute personal appeal for the cen-
sorship provision from President Wilson:
The White House
HoN. EDWIN Y. Wass Washington, May 22, 1917
,
House-of-Representatives
MY DEAR 'Ia. WEBB: I have been very much surprised to find
several of the public prints stating that the administration had aban-
doned the position which it so distinctly took, and still holds, that
authority to exercise censorship over the press to the extent that that
censorship is embodied in the recent action of the House of Represen-
tatives is absolutely necessary to the public safety. It, of course, has
not been abandoned, because the reasons still exist why such author-
ity is necessary for the protection of the Nation.
I have every confidence that the great majority of the news-
papers of the country will observe a patriotic reticence about every-
81. Id. at 3140. Graham's determined opposition to section. 4 led to a comical display
of animosity between Graham and Carlin, provoked by Carlin 's claims that Graham had
changed his mind repeatedly about the wisdom of section 4 and had frequently not been
present at judiciary Committee meetings.
82. Id. at 3137.
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thing whose publication could be of injury, but in every country there
are some persons in a position to do mischief in this field who cannot
be relied upon, and whose interests or desires will lead to .actions on
their part highly dangerous to the Nation in the midst of a war. I
want to say again that it seems to me imperative that powers of this
sort should be granted.
Cordially and sincerely, yours,
WOODROW WILSON"
Despite the President's appeal, the House voted to recommit the bill to con-
ference with instructions that the conferees delete section 4. The vote was 184
ayes, 144 nays, 5 answering "present" and 96 not voting.84 The bill returned
to conference ; on June 7th it was reported back to the House without section
4 and was approved.86 In the Senate, the first conference report was with-
drawn without debate upon notice that the House had voted to recommit with
instructions.86 The second conference report was agreed to by the Senate on
June 5th, 1917.87
3. Subsection 794(b): Conclusion. Despite the considerable confusion
pervading particularly the Senate debates on 2(c), the inferences to be drawn
about the scope of 794(b) are reasonably clear if the whole pattern of con-
gressional action is considered. The statute is violated only if information
about such matters as troop -movements and ship sailings is published with the
purpose of communicating to an enemy ; a newspaper that publishes such de-
tailed information simply to satisfy its readers' curiosity and fill its own
coffers does not violate this law. Subsection 794(b), the nation's only general
prohibition on publication of vital defense information, is so limited as to be,
in practice, insignificant.
The critical distinction drawn in the 1917 debates between publication
with the "villainous" or "treasonable" purpose of communicating defense
information to the enemy and innocent publication which might have the
same effect may well evoke skepticism today. Viewing the problem of publica-
tion in modern perspective, many will wonder why Congress would have
bothered to pass a statute which, resting on such a distinction, is without sig-
nificant impact. While today we do not worry about disloyal papers, the 1917
debates indicate substantial congressional concern over newspapers whose
loyalties ran to Germany. Several provisions of the Espionage Acts of 191788
and 1918,80 as well as the Trading With the Enemy Act of 1917,90 manifested
83. Id. at 3144.
84. Id. at 3144-45.
85. Id. at 3306-07.
86. Id. at 3149.
87. Id. at 3264.
88. Sections 2 and 3 of Title XII of the Espionage Act of 1917 made criminal any
attempt to mail any publication "urging treason. insurrection, or forcible resistance to any
law of the United States...." 40 Stat. 230 (1917). Sec also section 3 of Title I. Id. at 219.
89. Id. at 553-54 (1918).
90. Id. at 411-27 (1917).
I
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966 COLUMBIA LAW REVIEW [Vol. 73:929
this-concern. For example, the Trading With the Enemy Act required all
the foreign language newspapers of the day to submit sworn translations before
publishing stories or editorials about the war 91 Moreover, the Espionage Act
of 1918 contained numerous provisions covering publications which printed
seditious material or German propaganda, or which incited insubordination
among the troops, curtailment of war production, and the like es Such pro-
visions indicate that an actively disloyal press was a problem perceived as
requiring statutory restrictions 9s
When one considers the additional fact that in 1917 most military in-
formation of value to the enemy would be in relatively open view-troop
movements, ship sailing dates, or fortification plans-Congress's concern that
a disloyal newspaper might publish military information for the purpose of
communicating to the enemy is understandable. The Congress which passed
794(b) would not have seen its impact as trivial, and the legislative intention
seems reasonably clear that a narrow prohibition on publication was the most
Congress was willing to authorize.
N. SuBszcrioxs 793(a) AND (b)
A. Preliminary Conss`derations
Section 793 prohibits four basic categories of activities that augment the
probability that defense information will come into foreign hands. Subsections
793(a) and 793(b) cover, respectively, obtaining information by physical
intrusion into military installations, and copying or otherwise obtaining any
document, model, or note of anything connected with the "national defense.'rea
Each subsection includes a rather complicated mental requirement, similar
to that found in section 794(a) ; to be criminal, the conduct must be done "for
the purpose of obtaining information respecting 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 second group of 793 offenses, found in subsections (d) and (e),
are the most troublesome of all the espionage statutes.95 These provisions
cover persons who, having lawful or unauthorized "possession" of tangible
documents or intangible information "relating to the national defense," either
communicate the same "to any person not entitled to receive it," or fail to
91. See section 19 of the Act. Id. at 425-26.
92. The Espionage Act of 1918 made criminal an extensive variety of utterances
"intended to ... encourage resistance to the United States, or to promote the cause of its
enemies...:. Id. at 553 (1918).
93. See. e.g., 55 CONG. REC. 7021-22 (1917) (pungent remarks of Senator King in
the debate on section 19 of the Trading With the Enemy Act).
94. The definition of information is essentially the same as that in 18 U.S.C. 794(a)
(1970).
95. Subsections 793(d) and (e) are quoted and discussed in text following note 178
infra.
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hand it over to appropriate authorities. No mental requirement, other than
that the communication or retention be willful, is explicitly made an element
of these offenses.
The third type of offense is contained in a catch-all subsection-793(c).
This provision makes criminal the receipt of any document or other tangible
item if the recipient knows or has reason to believe that the document has been
or will be taken or disposed of by any person in violation of any of the pro-
visions of the espionage chapter of Title 18.
Finally, 793 (f) covers any person entrusted with or lawfully in possession
of tangible or intangible information relating to the national defense who
either permits the information to be removed from where it belongs "through
gross negligence" or, having knowledge that the information has been removed
or delivered to an unauthorized person in breach of his trust, fails to report
that fact to his superior 9? The principal problem posed by this provision is
self-incrimination, and we shall not discuss it further.
Section 793 raises substantial issues as to whether much of the flow of
defense information between executive branch employees and the press con-
stitutes serious criminal offenses. The overriding question of interpretation is
whether newspapers, their reporters, their informants, or anyone who in-
vestigates, accumulates, informs"about, or retains defense information as a
prelude to public speech is covered by the section.. Since section 793 crimes
are not defined in terms of the actor's intent to transfer information to for-
eigners, neither the communication/publication distinction found in 794(a),
nor 794(b)'s requirement of an intent to communicate to the enemy directly
protect such persons from liability under 793.
B. Subsections 793(a) and 793(b)
Subsections 793(a) and (b) state:
(a) Whoever, for the purpose of obtaining information respect-
ing 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, goes upon, enters, flies over,
or otherwise obtains information concerning any vessel, aircraft,
work of defense, navy yard, naval station, dockyard, canal, railroad,
96. Subsection 793(f) provides:
Whoever, being entrusted with or having lawful possession or control of
any document, writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, note, or informa-
tion, relating to the national defense, (1) through gross negligence permits the
same to be removed from its proper place of custody or delivered to anyone in
violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having
knowledge that the same has been illegally removed from its proper place of
custody or delivered to anyone in violation of his trust, or lost, or stolen,
abstracted, or destroyed, and fails to make prompt report of such loss, theft,
abstraction, or destruction to his superior officer-
Shall be fined not more than $10,000 or imprisoned not more than ten years,
or both.
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968 COLUMBIA LAW REVIEW [Vol. 73:929
arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal
station, building, office, research laboratory or station or other place
connected with the national defense owned or constructed, or in
progress of construction by the United States or under the control of
the United States, or any of its officers, departments, or agencies, or
within the exclusive jurisdiction of the United States, or any place
in which any vessel, aircraft, arms, munitions, or other materials or
instruments for use in time of war are being made, prepared, re-
paired, stored, or are the subject of research or development, under
any contract or agreement with the United States, or any department
or agency thereof, or with any person on behalf of the United States,
or otherwise on behalf of the United States, or any prohibited place
so designated by the President by proclamation in time of war or in
case of national emergency in which anything for the use of the
Army, Navy, or Air Force is being prepared or constructed or stored,
information as to which prohibited place the President has determined
would be prejudicial to the national defense; or
(b) Whoever, for the purpose aforesaid, and with like intent
or reason to believe, copies, takes, makes, or obtains, or attempts to
copy, take, make or obtain, any sketch, photograph, photographic
negative, blue-print, plan, map, model, instrument, appliance, docu-
ment, writing, or note of anything connected with the national
defense ; ... shall be fined not more than $10,000 or imprisoned not
more than ten years, or both 97
Neither 793(a)"nor 793(b) could properly be applied to the act of
publication because they do not prohibit communications of any kind.98 Both
subsections, however, cover activities which will in many instances occur prior
to publication of defense information. Although 793(b) would not be violated
if newsmen received oral reports concerning classified information, it never-
theless potentially casts a broad threat of criminal liability across any pub-
lication of a defense-related document or any. published analysis based on
documentary evidence in the hands of the writer. Although 793(a)'s coverage
is not limited to documentary information, it is restricted to entering or
obtaining information while upon places connected with the national defense.
To assess the impact of these subsections on activities preliminary to
public speech, it is necessary to understand the crucial formulations "respecting
[or "connected with"] the national defense," and "intent or reason to believe
that ... information is to be used to the injury of the United States, or to
the advantage of any foreign nation." These concepts are critical not only in
subsections 793(a) and (b), but throughout the espionage statutes; com-
parable language appears in subsection 794(a), and other subsections of 793
utilize the same phrases or derivations thereof. In contrast to the problems
of interpretation we encountered in connection with 794(a) and (b), case law
has an important bearing on the application of 793(a) and (b) to public speech
97. 18 U.S.C. $$ 793(a), (b) (1970).
98. Even if publication were regarded as a form of "copying" under 793(b), a
dubious reading indeed, it would nonetheless not be undertaken "for the purpose A)t
obtaining information respecting the national defense."
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and related activities. In addition, the legislative history offers valuable in-
sights, particularly with respect to the meaning 7af the mcns rea standard.
1. Related to the National Defense. No matter how evil the actor's intent,
subsections 793(a) and (b) make activity criminal only if the information
involved or sought respects the "national defense." The principal problem in
construing this term is to find its limits in an era when every facet of civilian
life may have an important bearing on the nation's military capabilities.
Learned Hand aptly stated the problem of broad construction:
The amount of iron smelted, of steel forged, of parts fabricated ; the
number of arable acres, their average yield ; engineering schools,
scientific schools, medical schools, their staffs, their students, their
studies, their curriculums, their laboratories ; metal deposits ; tech-
nical publications of all kinds ; such non-technical publications as
disclose the pacific or belligerent temper of the people, or their dis-
content with the government ; every part in short of the national
economy and everything tending to disclose the national mind are
important in time of war, and ... "relate to the national defense.""
(a) Legislative Background. The problem of interpreting the phrase did
not go unnoticed in the 1917 debates, and numerous speakers in both Houses
remarked its dangerous breadth. On our reading of the legislative record,
however, no consensus for a narrow definition emerged. In the end, a majority
of Congressmen was willing to accept the breadth, and, depending on their
political predilections, to rely either on prosecutorial discretion or the culpabil-
ity requirements to avoid harrassment of innocent activities.
The term originated in the Defense Secrets Act of 1911, which punished
anyone who, "for the purpose of obtaining information respecting the national
defense," enters any military station, building, office or "other place connected
with the national defense" ; anyone who, being in such a place, "obtains, takes,
or makes . . . any document, sketch, ... or knowledge of anything connected
with the national defense to which he is not entitled" ; anyone without proper
authority who receives such a document or information "knowing the same
to have been so obtained, taken, or made . . ."; and anyone who, having
control of any such documents, knowledge, or information "willfully and
without proper authority, communicates or attempts to communicate the same
to any person not entitled to receive it, or to whom the same ought not, in the
interest of the national defense, be communicated at that time."100
Briefest attention to the 1911 Act reveals that it was alternately so broad
in its first prohibition that it reached an almost unlimited. range of legitimate
inquiries about military affairs, if they took place on federal property, and so
vague in succeeding sections as virtually to defy analysis. The sparse legisla-
tive history, however, is almost completely unenlightening. The five-page report
99. United States v. Heine. 151 F.2d 813. 815 (2d Cir. 1945).
100. 36 Stat. 1804 (1911). The 1911 Act is quoted in full at note 25 supra.
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of the House Judiciary Committee, adopted without change as the Senate
committee report, contained no clarification of the meaning of "information
respecting the national defense," "place connected with national defense,"
or of other provocative terms such as "knowledge . . . to which he is not
entitled," or "without proper authority."101 The report was interested only
in "protect[ing] the nation against spying in time of peace";10all the ex-
amples cited to demonstrate a need for the statute were instances in which
information useful in wartime was collected by agents of foreign governments.
The perfunctory floor debates barely acknowledged the vagueness of the 1911
Act. No attention was given to the meaning of "relating to the national
defense" or the possible application of the statute to non-espionage situations ;
such questions as were raised were answered by non-sequiturs and irrelevan-
ciq.10' In view of the fact that the 1911 Act contained no limiting culpability
standards, it is surprising that no attention was given to the scope of docu-
ments and places "connected with the national defense."
Once the formulation had found its way into the Statutes at Large, Con-
gress in 1917 ignored objection to its essential vagueness, readopted it and
even broadened its reach in the Espionage Act. Section. 1(a) of S. 8148
followed the pattern of the first clause of the 1911 Act, but it increased the
number of places covered, ,adding such items as dockyards, railroads, and
mines, thereby also broadening, by implication, the reach of the ejusdesn
generic phrase "or other place connected with the national defense."104 Section
101. H.R. Rat. No. 1942, 61st Cong., 3d Sess. (1911).
102. Id. at 2.
103. For example, Congressman Bennet asked whether a tourist would be liable
under the statute if he took a photograph which happened to include a military installa-
tion, adding "we ought to pass with some hesitation a bill which makes the innocent
act of a person a crime." Congressman Hobson replied that the taking of such a photo-
graph would not be criminal because it "would not be giving away any national defense
secret," a near absurdity since most of sections of the 1911 Act were directed at gathering
activities and not at subsequent dissemination. 46 CONG. Rac. 2030 (1911). Conclusory
statements of this kind constituted all the debate in the House, which passed the bill
without objection. Id. The Senate was even more lackadaisical, its debates made no
mention whatever of non-espionage activities. Id. at 3516.
104. Subsection 1(a) of S. 8148 proposed to punish:
[W]hoever, for the purpose of obtaining information respecting the national
defense, to which he is not lawfully entitled, approaches, -goes upon, or enters,
flies over, or induces or aids another to approach, go upon, enter, or fly over any
vessel, aircraft, work of defense, navy yard, naval station, submarine base.
coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal,
camp, factory, mine, telegraph, telephone, wireless, or signal station, building.
office, or other place connected with the national defense, owned or constructed.
or in progress of construction by the United States, or under the control of the
United States, or of any of its officers or agents, or within the exclusive juris-
diction of the United States, or any place in which any vessel, aircraft. arms.
munitions, or other materials or instruments for use in time of war are being
made, prepared, repaired, or stored under any contract or agreement with the
United States, or with any person on behalf of the United States, or otherwise
on behalf of the United States....
54 CON-G. Rec. 2820 (1917). The places covered by S. 8148 but not by the first clan",.
the 1911 Act were aircraft, work of defense, submarine base, coaling station, ttoc >.
canal, railroad, mine, telegraph, telephone, wireless, and signal station. Sonic of ti
items, such as dockyards, railroads, and mines do suggest a broadening of the ~~n.c?
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1(b) of the bill went far beyond the comparable provision of the 1911 Act in
that its prohibitions were made applicable to anyone, rather than only to
persons in the places covered by the first clause 105 The subsequent prohibitions
of section 1 were similarly not limited by reference back to the entry pro-
hibition.106
The meaning of "national defense," did not shift throughout the debates
on the Espionage Act. The Senate debates on S. 8148 took note of the vague-
ness of the term. Cummins, for example, asked whether the term "information
respecting the national defense" would encompass "every national energy
which makes up an adequate and effective national defense?"10T He objected
strongly to the additional enumeration of places covered in subsection 1(a),
and offered an amendment to strike the words "building, office, or other place
connected with the national defense."108
Cummins also objected to section 6 of S. 8148, which had no analogue in
the 1911 Act. In part, it empowered the President to designate any place as
within the prohibitions of subsection 1(a), on the ground that information
concerning it would be detrimental to the national defense if revealed.109 Here,
gexeris phrase "place connected with the national defense" beyond what that phrase
imported in the 1911 Act.
105. Subsection 1(b) of S. 8148 isquoted in note 165 infra
106. Subsections 1(c) and 1(d) of S. 8148 are quoted in note 165 ixfra.
107. Cummins' full statement on the breadth of the term "national defense" is as
follows:
Is it confined to the Army and the Navy? Evidently not, for it is universally
agreed that it extends to all manufactories engaged in producing arms and
munitions of war. But is it confined to manufactories engaged in producing the
things that are directly used in war, or is it to be extended to every national
energy which makes up an adequate and effective national defense?
I have heard it applied, and so have you, to agriculture. It is said that it is
necessary to make stable, permanent, and general the development of our fields
in order that in time of war our armies may be successfully sustained, or our
citizens adequately fed. I have heard it applied to schools, because it is alleged
that we can not create an adequate national defense unless we have cultivated
the heart and the mind. I do not believe it will be asserted here that the words
"national defense" do extend to these things, but no one can tell to what they
extend. They may mean, I suppose, anything that is necessary in order success-
fully to defend ourselves against an enemy or successfully to attack an enemy,
if attack is the approved method of defense at any given time. I should think
that it would include everything from the mines and the forests which ultimately
passes into the structures or the arms that are used in war, no matter whether
they are used immediately in battle, or whether they are used in general connec-
tion with the Army or the Navy. -
54 CONG. REc. at 3485.
108. Id. at 3599. Overman opposed the amendment however, arguing:
It would be impossible to specify these places. No Senator knows what are these
plans or what specific articles are in some buildings that ought to be protected,
and we made it general to protect everything connected with the national defense.
Id. at 3601. The Senate rejected Cummins' amendment. Id.
109. Cummins read the proposed subsection 6 of chapter 1 which provided:
The President of the United States shall have power to designate any place
other than those set forth in paragraph (a) of section 1 hereof as a prohibited
place for the purposes of this chapter, on the ground that information with respect
thereto would be prejudicial to the national defense; he shall further have the
power, on the aforesaid ground, to designate any matter, thing, or information
belonging to the Government. or contained in the records or files of any of the
executive departments, or of other Government offices, as information relating
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Cummins was more successful, and his amendment to limit the President's
power of designation to locations "in which anything for the use of the Army
or Navy is being prepared or constructed," was accepted notwithstanding
Overman's objections.tto
However, the frequent criticisms of Cummins and others provoked no
attempt from the bill's supporters to define the limits of the term "relating to
the national defense." Instead, supporters argued that it would be impossible
to give a precise definition that would adequately protect sensitive information.
The Senate clearly agreed ; attempts to limit the term to named places or to
specific categories of information, consistently met with defeat. Absorbing
this lesson, opponents subsequently focused their energy on limiting the reach
of the bill by adding an intent standard. S. 8148 passed the Senate with no
real limits in either statutory language or legislative understanding on the
term "national defense."
As earlier noted, the 64th Congress adjourned before S. 8148 could be
presented for action in the House, and new bills, S. 2 and H.R. 291, were
introduced in the 65th Congress. With respect to "national defense," the
language and legislative history of S. 2 paralleled the history of S. 8148.
The House bill, however, was different in structure and included an even
broader conception of national defense. It contained no prohibition directed
to entering, and consequently included no enumeration. of places "connected
with the national defense." Instead, sections 1 and 2 contained entirely
non-specific prohibitions against obtaining or communicating documents or
information "relating to the national defense.""' Furthermore, section 4 pro-
hibited publication of "any information relating to the national defense that is
to the national defense, to which no person (other than officers and employees
of the United States duly authorized) shall be lawfully entitled within the
meaning of this chapter.
Id. at 3487. Under this provision, Cummins culminated, the President could "padlock the
lips of every man in America respecting the national defense." Id. Cummins persuaded
Senator Walsh, the most knowledgeable and influential of the bill's proponents, that
subsection 6 should be narrowed. Id. at 3610.
110. The disagreement between Cummins and Overman about section 6 produced a
typical exchange:
Ms. OVERMAN. ... For fear that we have not covered everything, in order to
protect the national defense, in section 6 we give power to the President to
designate, in his judgment, other places and stations that are to be protected.
That is the reason for section 6. Senators do not know, the Senator from Iowa
does not know, of the places that ought to be protected. If the time shall come
when some places that ought to be protected are not included in the section
then we want to give the Executive of the Government the power to designate
other places which should be protected from spies. That is what it is for-to
protect the Government from spies and from traitors. I would hang every one of
them.
Ma. CuMMtxs. I wish the Senator from North Carolina would use the word
"spy" in the act and the word "traitor" in the act instead of in his speeches.
Id. at 3600.
111. Section 1 of H.R. 291 provided:
Whoever, with intent or knowledge, or reason to believe that the information
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or may be useful to the enemy."132 Finally, unlike the Senate bills, section 1202
of H.R. 291 included a broad definition of national defense:
The term "national defense" as used herein shall include any
person, place, or thing in anywise having to do with the preparation
for or the consideration or execution of any military or naval plans,
expeditions, orders, supplies, or warfare for the advantage, defense,
or security of the United States of America.113
There was no debate in the House bearing on the meaning of section 1202;
most attention focused on the controversial general prohibition on. publication,
and discussion of the predecessor provisions to 794. concerned the force of
the intent requirement. Sections 1, 2, and 1202 passed the House without
significant opposition to the breadth of the term "national defense."
In reconciling S. 2 and H.R. 291, the conferees made the Senate bill the
basis of their final agreement. Thus, section 1 of the conference bill prohibited
entry into named places as well as those included in the general phrase "or
other place connected with the national defense."114 Believing that the broad
enumeration of places in section 1 would imply a broad understanding of
national defense, the conferees eliminated section 1202 of the House bill.
Although the managers from the Douse made some confusing statements about
why section 1202 was eliminated, we believe it is clear that the conferees
continued to understand the term "relating to the national defense" as ex-
tremely far-reaching, and that section 1202 was eliminated as surplusage
rather than in service of some more narrow meaning.116
to be obtained is to be used to the injury of the United States, copies, takes,
makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photo-
graph, photographic negative, blue print, plan, model, instrument, appliance,
document, writing, code book, or signal book, connected with the national defense,
or any copy thereof, or with like intent or knowledge, or reason to believe,
directly or indirectly, gets or attempts to get information concerning the national
defense, shall, upon conviction thereof, be punished by a fine of not more than
$10,000 or by imprisonment for not more than five years, or both.
H.R. REP. No. 30, 65th Cong., 1st Sess. 1 (1917).
Section 2 provided:
Whoever, with intent or knowledge, or reason to believe that it is to be used
to the injury of the United States, communicates, delivers: transmits, or
attempts to communicate, deliver, or transmit, to any foreign government, or
to any faction or party or military or naval force within a foreign country,
whether or not recognized by the United States, or to any representative, officer,
agent. employee. subject, or citizen thereof, any information, document, writing,
code book, signal book, sketch, photograph, photographic negative, blue print,
plan, model, note, instrument, or appliance, relating to the national defense, shall
be punished by a fine of not more than $10,000, or by imprisonment for not more
than twenty years. or both: Provided, That whoever violates this section in time
of war shall be punished by imprisonment for not more than thirty years or by
death.
112. H.R. 291. 65th Cong.. 1st Sess. 14 (1917).
113. H.R. REP. No. 30. 65th Cong., 1st Sess. 9 (1917).
114. H.R. REP. No. 65, 65th Cong.. 1st Sess. 1 (1917).
115. The House managers stated:
The several provisions under this title in the conferees' report do not
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Our reading of the legislative history thus offers no limits on the range
of the term "relating to the national defense" and its statutory variations. This
term, so central to the Espionage Act's prohibitions was without principled
limitations in the minds of the Congresses which adopted it.
(b) The Judicial Response. As is so frequently the case, the courts were
left to grapple with an amorphous phrase, and not surprisingly, their efforts to
give content followed the pattern of the congressional debates. Unable to find
satisfactory limits inherent in the term itself, the courts invoked the statute's
culpability requirements to avoid due process problems of vagueness.
The most important decision construing "related to the national defense"
is Gorin v. United States,'" the Supreme Court's first and only confrontation
with the problem. During the late 1930's, Gorin, a citizen of the U.S.S.R. paid
Salich, an employee of the San Pedro branch of the Naval Intelligence Office,
to report the substance of counter-intelligence reports bearing on Japanese
activities in the area. The material transferred was described by the court of
appeals:
The reports consisted principally of a relation of the movements
of certain Japanese from one place to another, and activities thereof,
such as photography, conferences, and other matters. A few reports
dealt with Japanese activities in Mexico, Mexican waters and Central
America, and a few reports concerned alleged communists and their
activities. None of the reports contained any information regarding
the army, the navy, any part thereof, their equipment, munitions,
supplies or aircraft or anything pertaining thereto. One report named
a number of Japanese 'suspected' of being interested in intelligence
work. Most of them, on their face, appear innocuous, there being no
way to connect them with other material which the Naval Intelligence
may have, so that the importance of the reports does not appear.iiz
materially change the provisions of this title as passed by the House. Section 1
sets out the places connected with the national defense to which the prohibitions
of the section apply while the similar provision of the House bill designates such
places in general terms.
Section 7 (Section 6 of the Act] was not in the House bill but was taken
from the Senate amendment. It was adopted because-of the changes made in
section 1, and for the further reason that section 1202 of the House bill, which
gave the words "national defense" a broad meaning, was stricken out.
Id. at 18-19.
These statements were asserted by the defendants in Gorin v. United States, 111 F.2d
712 (9th Cir. 1940), to mean that subsection 1(a) of the 1917 Act should be limited to
the enumerated places, and that phrase "other place connected with the national defense"
added nothing. The Supreme Court rejected the argument, presumably because the Senate
had quite clearly understood the national defense language in subsection 1(a) to include
more than just the enumerated places. An amendment had been offered in the S. 8148
debates to limit 1(a) to enumerated places. 54 Cong. Rec. 3599-3600. but was rejected
after Senator Overman urged its defeat. 1d. at 3601.
Id. at 3601.
116. 312 U.S. 19 (1941).
117. Gorin v. United States, 111 F2d 712, 715-16 (9th Cir. 1940).
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Convicted of violating the precursors of 793(b), 794(a), and 794(c) (con-
spiracy), Gorin and Salich argued that the information transferred was not
.covered by the statutes. They contended that "related to the national defense,"
as used in sections 793(b) and 794(a), must be read in conjunction with
section 793(a), which defines "national defense" in terms of protected places
and things. Without that limitation of national defense to specified places and
things, defendants contended, section 793(b) and 794(a) were vague because
everything "relates" to national defense more broadly construed.
Justice Reed's opinion for a unanimous Court rejected, as had the
court of appeals, both the proposed construction and-the argument that without
it the statutes were vague:
The sections are not simple prohibitions against obtaining or deliver-
ing to foreign powers information which a jury may consider relating
to national defense. If this were the language, it would need to be
tested by the inquiry as to whether it had a double meaning or forced
anyone, at his peril, to speculate as to whether certain actions violated
the statute . .
But we find no uncertainty in this statute which deprives a
person of the ability to predetermine whether a contemplated action
is criminal under the provisions of this law. The obvious. delimiting
words in the statute are those requiring "intent or reason to believe
that the information to be obtained is to be used to the injury of the
United States, or to the advantage of any foreign nation." This
requires those prosecuted to have acted in bad faith. The sanctions
apply only when scienter is established. Where there is no occasion
for secrecy, as with reports relating to national defense, published
by authority of Congress or the military departments, there can, of
course in all likelihood be no reasonable intent to give an advantage
to a foreign government. Finally, we are of the view that the use of
the words "national defense" has given them, as here employed, a
well-understood connotation. They were used in the Defense Secrets
Act of 1911. The traditional concept of war as a struggle between na-
tions is not changed by the intensity of support given to the armed
forces by civilians or the extension of the combat area. National de-
fense, the Government maintains, is a "generic concept of broad
connotations, referring to the military and naval establishments and
the related activities of national preparedness." We agree that the
words "national defense" in the espionage act carry that meaning.118
The Court decided with little discussion that the particular, reports might be
deemed related to national defense. The issue was for the jury to decide, and
an adequate basis supported the jury's decision as the intelligence reports gave:
a detailed picture of the counter-espionage work of the Naval Intel-
ligence, drawn from its own files. they must be considered as dealing
with the activities of the military forces. A foreign government in
possession of this information would be in a position to use it either
for itself, in following the movements of the agents reported upon,
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or as a check upon this country's efficiency in ferreting out foreign
espionage.tta
We agree that Gorin and Salich were properly found to have violated
the statute. Nonetheless, the Court's opinion, which has set the ground rules
for the lower courts, is confused and inadequate in its treatment of three
related issues. First, to what extent does information respecting national
defense, which encompasses specifically military affairs, also encompass in-
formation bearing on broader issues such as over-all national defense policy,
the state of civilian defense readiness, economic capacities, and the like?
Second, is information defense-related if. it pertains to military affairs but is
unimportant? Third, does "related to the national defense" include information
which the Government has not sought to keep secret, or which has found its
way into the public domain despite such efforts?
On the first question, the extent to which information may be defense-
related regardless of whether it describes military operations directly, justice
Reed's opinion is internally inconsistent. The first mention of "related to the
national defense" assumes that the concept is a wide-reaching one, but one
that poses no constitutional difficulties because "scienter" is required to
violate the statute. Immediately, thereafter, however, the Court sets out a
rather narrow definition. The words "national defense" have a "well under-
stood connotation" and the "traditional concept of war as a struggle between
nations is not changed by the intensity of, support given to the armed forces
by civilians or the extension of the combat arena.""=? This formulation would
at least exclude industrial production information and matters bearing on
civilian morale from the reach of "national defense." It also suggests, however,
that "national defense" is not a hopelessly vague term curable only by scienter
requirements.
The third mention of "related to the national defense" defines it broadly
once again. Taking its language from the Government's brief, the Court ruled
that "national defense is a generic concept of broad connotations, referring to
the military and naval establishments and the related activities of national
preparedness."tzi This standard seems plainly to comprehend national capacity
to produce necessary military goods, a matter the "well. understood connota-
tion" excluded. Does it also include information about the political and
diplomatic establishments which set the boundaries of military action? Lower
courts have properly deemed the "generic concept" language the Supreme
Court's last word on the scope of national defense. Left in doubt, however,
is the breadth of that standard and whether national defense so defined is
119. Id.at29.
120. Id. at 28. The observation is curious because it is precisely the intensity of civilian
support and the extension of the combat arena that made war truly a struggle between
nations.
121. Id. (emphasis added).
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sufficiently precise to withstand constitutional challenge where the actor does
not behave with intention to harm the United States or to advantage a foreign
nation.
We shall see that this issue becomes important in two subsequent con-
texts in which newspaper publication or conduct incidental thereto may be
thought criminal under current statutes: the meaning of the culpability stan-
dard "reason to believe" in subsections 793(a) and (b),122 and the meaning of
"willfully" in subsections 793(d) and (e).123 Ungenerous construction of
either phrase would force newspapers and reporters to speculate at their peril
as to just how "generic" the national defense concept is. Partly for this
reason, however, as we shall later detail, we believe that these culpability
standards should be read to exclude from the reach of the statutes participation
in public debate and conduct incidental thereto. On the point with which the
Court was concerned, however, we believe the Court's broad definition was
right. Purposeful assistance of the agents of foreign governments may properly
be regulated broadly, even though the assistance pertains to matters at the
periphery of military affairs. But recognizing the appropriateness of defining
rather broadly the materials protected against transfer in that context under-
lines how mistaken it is to treat,Xhe materials protected against newspaper
disclosure by the same standard.
The second problem Gorin treated inadequately is whether and to what
extent information must be important in order to be. defense-related. For
example, is the information that John Jones is a sailor on a nuclear submarine
"related to the national defense" because it clearly pertains to military matters,
or is that information not covered by the statutes because it has no particular
utility to any foreign nation that might acquire it? The issue was raised in
Gorin because defendants maintained that the counterintelligence hearsay
they had transferred was of little significance, which was undoubtedly true.
The Supreme Court held, however, that the particular information might
properly be found defense-related. Foreign nations, in possession of it, might
either follow the suspected Japanese agents themselves, or else they could
check on the efficiency of the United States counterespionage effort. The
Court's approach to the problem thus assumed, although with no discussion,
that some military information might be so worthless as to be outside the
statute but it defined the category of the potentially useful information very
broadly-an approach that has been followed subsequently in the lower courts
as we shall see.124 Indeed, if the Court's rationale is extended but slightly, any
defense matter that is secret may be held "defense related" within the statute,
simply because its revelation permits estimation of the efficiency of the United
122. See text accompanying note 145 infra.
123. See text accompanying note 292 infra.
124. See text accompanying note 148 infra.
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States' secrecy system itself, as well as providing foreigners with the oppor-
tunity to judge how good their intelligence system was at guessing the matter
in question prior to revelation.
Nonetheless, what the Court did in Gorin was to define the category of
national defense related information in terms of the statutory culpability
standard "injury to the United States" or "advantage to a foreign nation."
Information that is not susceptible to either use is not defense-related, quite
apart from the intent with which it is transferred. The point has special
significance in two contexts. First, subsections 793(d) and (e) may be read
to make transfer or retention of national defense information criminal regard-
less of the actor's intentions or expectations in regard to foreign use. Conse-
quently, if the statutes are so read, it is important that their reach is limited by
the necessity of showing that mishandling of the information might have
potential adverse consequences. Second, the Court's treatment of the issue
requires that the prosecutor demonstrate in open court the military significance
that defense information may have.
The latter point is an especially troublesome one. The question is not
only whether wrongfully motivated transfer of completely trivial defense in-
formation should be an offense, but also the price that must be paid to ad-
judicate in open court the triviality of material that clearly relates to military
affairs. First, if the information was transferred to only one nation, then
revealing it in open court and describing its significance subsidizes other
nations' intelligence services. Second, information may be of vital significance
if one knows what to look for, but utterly meaningless otherwise. Suppose, for
example, that decoded communications between ships at sea are revealed. They
deal with trivial matters. Should the Government be required to prove in court
that a good team of foreign cryptographers could, if message logs were kept,
break the code in which all messages of a certain type and date were sent,
including many of great significance, simply by systematically working through
them? People generally spend less time and determined effort on puzzles when
they are unsure of whether the puzzle can be solved. Knowledge that a solution
exists may, in fact, be the single most important discovery on the road to
success.
These are the types of problems underlying the issue whether as a
general matter criminal sanctions should be visited upon breach of classification
orders, without regard to whether information is properly classified. Requiritt4
the Government to prove proper classification may so compromise securit v
that national defense interests require subordination of the interest in impo~.tnt:
punishment. Our problem, whether defense-relatedness may be shown with'l'it
proof of susceptibility to advantageous or injurious use, is a more retitic
aspect of the same issue.
Although the problem is not a simple one, we think susceptibility t-
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advantageous use should be a required element of defense-relatedness under
the current statutes.125 Congress, except in the most narrowly defined espionage
offense-transfer of classified information by a Government employee to
foreign governments126-has consistently refused to make classification dis-
positive of the criminality of transfer. That refusal should be respected in
treating this problem.
The third, and in many ways most troublesome aspect of the Gorin
opinion, is its treatment of the relation between secrecy and the statutory
standard of defense-relatedness. The issue arose because Gorin and Salich, in
arguing the unconstitutional breadth of the national defense concept claimed
that criminal punishment might be imposed for any discussion of any military
matters with foreigners, even those matters which were plainly known to the
general public.127 In its brief the Government responded, without conceding
the point formally, that secrecy was an element of defense-relatedness.12e That
approach would permit characterization of "public" information as worthless,
and outside the statute on the ground that foreigners could get it easily enough
without relying on the actor's conduct. Rather than decide whether and to
what extent secrecy was necessary, the Court invoked the culpability provi-
sions:
? .r
Where there is no occasion for secrecy, as with reports relating to
national defense, published by authority of Congress or the. military
departments, there can, of course. in all likelihood be no reasonable
intent to give an advantage to a foreign government.12e
This response simply avoids the problems. First, an enormous amount of
useful information in no way tracing back to official publications can be
gleaned from newspapers, periodicals,130 personal observation and interviews.
125. We do believe that well-drafted espionage laws would limit the prosecutor's
duty to disclose significance in cases of clandestine transfer of military information. See
text accompanying note 444 infra.
126. 50 U.S.C. 1783(b) (1970). It is set out and discussed in the text accompanying
note 403 infra
127. In Gorin, defendants claimed that the information Salech transferred had been
published in popular magazines, indicating its unimportance. The court of appeals noted,
"while a serious question might arise in a case where the only information
divulged was such as could be found in newspapers . such question does
not arise in this case, because the article in the periodical does not, and does
not purport to relate all information contained in the reports in question."
111 F2d at 722.
128. The Government's brief argued:
In a broad sense, it protects military information which is secret or confidential.
Its secret nature may arise from the fact that it is held confidential by the
Government, or from the fact that through independent investigations the of-
fender has secretly accumulated data which has a military importance such that
it should not be placed at the disposal of a foreign nation. The Act, then, quite
plainly is directed at espionage, not at innocence.
Brief for the United States at 60, Gorin v. United States, 312 U.S. 19 (1941).
129. 312 U.S. at 28.
130. Indeed the considerable sums the United States government spends on sys-
tematic monitoring of foreign news are otherwise inexplicable. Cf. A. DULLES, THE
CRAFT OF INTELLIGENCE 240 (1963):
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Moreover, like most puzzles, several small clues may permit piecing together
the entire story. Whether the current espionage statutes are properly read
to make criminal the assembling and transmittal of such information is a hard
question, which we shall postpone for the moment. The problem is that the
Court gave no guidance to its resolution. Surely, whether the actor has an
intent to benefit foreign nations does not turn on the secrecy of the informa-
tion transferred. For example, a foreign military attache who dutifully mails
home a readily available copy of our military appropriations bill does so
because he rightfully believes that his country will benefit thereby. The ques-
tion is not with his intent. If his conduct is not criminal it is because the
information is not defense-related, or because the statutory-word "advantage"
does not comprehend any and all benefits accruing to foreign governments
from receipt of defense-related information.
These three issues have received little focused attention in the lower
courts. For the most part, the decided cases have involved military information
in the most direct sense.131 Thus, in only two reported cases has prosecution.
been grounded upon systematic collection of non-secret information.
In Gros v. United Stateslss defendant Frances Gros was convicted of
conspiracy with her husband and another to violate subsections 794(a) and
(b). The evidence was clear that she had helped her husband to send informa-
tion to his uncle, a lieutenant colonel in the German army. Furthermore, she
confessed to agents of the F.B.I. that she realized she had engaged in espionage
activities. However, insofar as can be determined from the court of appeals
opinion, the transmitted information had been culled from newspapers and
personal observations of matters in plain view. When the defendant's room
was searched, "many newspaper clippings were found there containing in-
formation of value to the German Army." One letter
contained information of value to Germany relating to increased
armament and plane manufacture and its effect on prices of food and
[Wjhen he was Director of CIA Bedell Smith was so disturbed by the situation
that he decided to make a test. In 1951 he enlisted the services of a group of able
and qualified academicians from one of our large universities for some summer
work. To save their time he furnished them publications, news articles, hearings
of the Congress, government releases, monographs, speeches, all available to
anyone for the asking. He then commissioned them to determine what kind of an
estimate of U.S. military capabilities the Soviets could put together from these
unclassified sources. Their conclusions indicated that in a few weeks of work by
a task force on this open literature our opponents could acquire important insight
into many sectors of our national defense. In fact, when the findings of the
university analysts were circulated to President Truman and to other policy-
makers at the highest level, they were deemed to be so accurate that the extra
copies were ordered destroyed and the few copies that were retained were given a
high classification.
131. See, e.a.. Slack v. United States, 203 F.2d 152 (6th Cir.), cert. denied, 396 U.S.
888 (1953) (explosive compound transferred) ; United States v. Rosenberg. 195 F.2d
583 (2d Cir.), rcrt. denied, 394 U.S. 838 (1952) : United States v. Grote, 140 F.2d 413
(2d Cir. 1944) (airplane de-icers).
132. 138 F2d 261 (9th Cir. 1943). The provisions were then codified at 50 U.S.C.
132.
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other civilian needs ; the supply of silk, wool and aluminium ; the low
output in planes due to the lack of organization ; the calling of the
men for army training and the likelihood that America soon would
be in the war.133
Without discussion of whether such information related to the national
defense, or indication that the conspiracy embraced broader objectives than
transmission of this data, the Ninth Circuit held that a violation of the statute
had been established and affirmed the conviction. Subsequently, the court
reversed itself on rehearing, but on a narrow ground relating to conspiracy
law.134
The question whether information culled from periodicals and observation
"relates to the national defense" was fully explored by Learned Hand in
United States v. Heine.133 His opinion ranks second in importance only to
Gorin. As in Gros, the defendant's purpose was unquestionably to benefit
Germany. Born in Germany, but a naturalized United States citizen, Heine
shortly prior to United States entry into World War II compiled extensive
reports on the United States aviation industry which he mailed to addresses in
New York and Lima, Peru, for forwarding to Germany. The evidence justified
the inference that he adopted this mailing procedure to avoid detection. The
court described the information'which Heine collected and transferred:
The information which Heine collected was from various
sources: ordinary magazines, books and newspapers ; technical cata-
logues, handbooks and journals; correspondence with airplane manu-
facturers ; consultation with one, Aldrich, who was already familiar
with the industry ; talks with one or two employees in airplane
factories ; exhibits, and talks with attendants, at the World's Fair in
New York in the summer of 1940. This material he condensed and
arranged in his reports, so as to disclose in compressed form the
kinds and numbers of the planes-military and commercial-which
were being produced and which it was proposed to produce ; the
location and capacity of the factories ; the number of their employees ;
and everything- else, of which he could get hold, that would con-
tribute to as full a conspectus as possible of the airplane industry.
All of this information came from sources that were lawfully accessi-
ble to anyone who was willing to take the pains to find, sift and
collate it ; no public authorities, naval, military or other, had ordered,
or indeed suggested, that the manufacturers of airplanes-even in-
cluding those made for the services-should withhold any facts which
they were personally willing to give out.1e ?
Writing for the Second Circuit. judge Hand held that such activities were
not covered by the statute. To give the phrase "related to the national defense"
its full breadth, he argued, would bring within the statute a railway map sent
133. Id.
134. Id. at 163.
135. 151 F.2d 813 (2d Cir. 1945), cert. denied, 328 U.S. 833 (1946).
136. Id. at 815.
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to a subject of Britain or a citizen of France. The statute specifies only that the
recipient be foreign and does not distinguish between friends or foes. In
limiting the statute, judge Hand took as his starting point the language in
Gorin that indicated that it would not be criminal to transmit information
that the military had made public:
As declared in Gorin v. United States ... and as the judge
himself charged, it is obviously lawful to transmit any information
about weapons and munitions of war which the services had them-
selves made public ; and if that be true, we can see no warrant for mak-
ing a distinction between such information, and information which the
services have never thought it necessary to withhold at all. There can,
for example, be no rational difference between information about a
factory which is turning out bombers, and to which the army allows
access to all comers, and information about the same bombers, con-
tained in an official report, or procured by a magazine through
interviews with officers. The services must be trusted to determine
what information may be broadcast without prejudice to the
"national defense," and their consent to its dissemination is as much
evidenced by what they do not seek to suppress, as by what they
utter. Certainly it cannot be unlawful to spread such information within
the United States ; and, if so, it would be to the last degree fatuous
to forbid its transmission to the citizens of a friendly foreign power.137
Judge Hand's 'effort to limit Gorin is, on the narrow facts decided, a
satisfactory construction of the statute. As in Gorin itself, however, the
rationale is unsatisfactory. The criminality of transmitting information to
foreigners cannot be made to depend on whether "spreading" the same in-
formation within the United States is a crime. No matter how sensitive
information may be, its well-meaning publication is not criminal, we believe,
except under narrow statutes like sections 797 and 798. We have shown that
section 794 does not make such conduct criminal ; and, as we shall argue,
neither does action 793. Consequently, if we are correct, to accept Judge
Hand's premise is to gut the espionage statutes of any content whatever, even
as to clandestine espionage.
But the validity of the Heine approach does not depend on that premise,
for the court held only that revelation to foreigners of matters not kept
secret by the Government is no offense. The greater difficulty lies in the
ambiguities of the concept of "secrets," a point judge Hand recognized.138
Essentially, the Heine opinion shifts the emphasis that Gorin gave to the
secrecy problem. Gorin did not say that it was lawful to transmit published
materials because once in the public domain information is no longer related
to the national defense. Instead, the Supreme Court looked to the scicnter
requirement and supposed that in such circumstances there can "in all likeli-
hood be no reasonable intent to give an advantage to a foreign government .11130
137. Id. at 816.
138. Id. ("'secrets' is an equivocal word whose definition might prove treacherous.")
139. 312 U.S. at 28.
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While this assertion is valid for the casual mailer of railway maps whom judge
Hand mentioned, it is false for people like Heine and Mrs. Gros unless
"advantage" is given some special meaning. The compilation of published
reports, interviews, and personal observations in their cases was obviously
undertaken with the purpose of benefiting a foreign nation. Consequently,
in his treatment of the secrecy issue, Judge Hand revised the Gorin approach
by removing some "public" defense information from the reach of the statute
regardless of the actor's intent. Given the reach of section 794(a), making
criminal communication to any foreign nation of any defense information,
assembled or not, that result is sound.140
The hard problem is what information is "secret" for purposes of the
rule. Where Gorin avoided the questions by adverting only to information
published by the services, Heine treated information not suppressed by the
services as equivalent to information published by them. The transformation
is important, but the result is hard to apply. What facts evidence the Govern-
ment's lack of desire to suppress? In Heine, the question was easily answered
because the Government had apparently made no effort whatever to maintain
secrecy. More often the problem is one of exceptional difficulty. The Govern-
ment's readiness to publish information may well reflect its willingness to
have it become known; but its failure, and just as often, inability to sup-
press information may say nothing about its defense significance.
Three different problems complicate the outright rejection of the "related
to the national defense" standard as applied to such information. It is
impossible to bar all public awareness of, and perhaps newspaper reports
concerning, matters of high sensitivity that are in plain view. Nevertheless,
the fact that citizen comment on the domestic deployment of troops or the
sailing of convoys cannot be suppressed should not remove such information
from the reach of the statute simply because many people have learned it.
Second, there are some matters that are widely known but nonetheless officially
secret because of special problems of Government attribution. To say that
widespread awareness of a particular fact undercuts the defense-relatedness
of official documents confirming it disregards important diplomatic realities.
Third, information about matters the services would surely like to keep secret,
140. The present espionage legislation does not provide an adequate basis for dis-
tinguishing the person who provides a foreigner with readily available information per-
taining to military affairs, from the person who does research work albeit in published
sources to assemble the best possible picture of some aspect of United States military
capacity. Heine makes innocent the conduct of both.
If the problem is treated anew, however, we see no reason why Heine's systematic
compilation of defense information for the benefit of foreigners ought not be made
criminal. It is not self-evident that foreigners can do the job of assembly as well or as
cheaply at home, and we see little danger to first amendment interests in prohibiting such
conduct. This approach was taken by the National Commission on Reform of Federal
Criminal Laws. It proposed to make criminal the person who "reveals" national security
information, a phrase which encourages distinction between assembly and analysis and
simple transmittal. Sec FINAL RErQRT OF THE NATIONAL COMMISSION ON REFORM OF
FEDERAL CRIMINAL LAW, PROPOSED NEW FEDERAL CRIMINAL CODE, 1 1112.
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and do attempt to keep secret, may be pieced together from the secondary
sources, such as their budgets or subcontractors, that the services must release.
The Heine rationale, because of the peculiar facts, faced up to none of these
problems of determining when some matter is to be regarded as in the public
domain and therefore beyond the scope of the "relating to the national defense
formulation."
Since Heine, these issues have arisen only in the context of the significance
to be accorded classification where clandestine espionage was prosecuted.
What relevance does classification have to the basic problem of whether data
inferentially "relate to the national defense"? Is the Heine "seek to suppress"
standard met if the particular information is properly classified, even though
it is also in the public domain? The few scattered dicta in espionage cases
provide no adequate guidance.141
A slightly different issue is what bearing classification has on defense-
relatedness even assuming that information is in fact secret. Insofar as the
Gorin opinion makes defense-relatedness a jury question, it follows, as the
courts have held, that classification is not dispositive of whether information
relates to the national defense. Unsettled, however, is whether and to what
extent classification should be treated as probative evidence of defense-related-
ness. Although the cases uniformly allow the fact of classification to go before
the jury, two different rationales have been used. In Gorin, the court of
appeals rejected defendants' claim that they had been prejudiced by the testi-
mony of Salich's superior that he had instructed Salich not to divulge any
information to Gorin. Noting that the trial judge had cautioned the jury that
this testimony was not to be taken as a statement of law, the court found no
error in its admission because the testimony was probative on the issue of
whether defendant had "reason to believe" that the information was prejudicial
to the United States or advantageous to a foreign nation.142 This reasoning
141. Espionage charges are typically brought under conspiracy indictments. On sev-
eral occasions defendant's efforts to invoke Heine has been defeated by showing that some
aspect of the information transferred was secret. See, e.g., Slack v. United States, 203
F2d 152 (6th Cir.), cert. denied, 346 U.S. 888 (1953) (formula for explosive compound
RDX may have been known but facts of its manufacture at a particular plant was not) ;
United States v. Rosenberg, 108 F. Supp. 798, 807-808 (S.D.N.Y.) aff'd, 200 F2d 666
(
explosives field may 2d. Cir. 1952), cert. denied, 345 U.S. 965 (1953) (theory of atomic energy in the
of applying theory wasvknoown). United States ev. dSoblen, that F.2d 236,239 (2d Cir.)
cert. denied, 370 U.S. 944 (1962) ("The fact that the source of the information (bearing
on organization of O.S.S.] was classified as secret distinguishes this case from United
States v. Heine"). Cf. Gorin v. United States, 312 U.S. 19 (1941).
These cases do not treat the problem whether continued classification in the face of
public knowledge permits invocation of the Heine rule. In United States v. Rosenberg,
195 F2d 583,591 (2d Cir.), cert. denied. 344 U.S. 838 (1952), Judge Frank characterized
Heine as applying to "information which our armed forces had consented to have made
public." But contparc Judge Ryan's approach in a different phase of the same litigation,
where the opportunity to show the absurdity of continuing a policy of non-consent was
assumed. 108 F. Supp. 798, 808 (S.D.N.Y.), aff'd 200 F.2d 660 (2d Cir. 1952), cert.
denied. 345 U.S. 965 (1953).
142. 111 F.2d at 721. The rationale was followed in United States v. Drummond,
354 F2d 132. 152 (2d Cir. 1965), cert. denied, 384 U.S. 1013 (1966).
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survived without mention the Supreme Court's review. The second rationale
for admission was advanced in United States v. Soblen,143 where the defen-
dants were charged with providing Russian agents with classified information
about the O.S.S. The trial judge charged the jury that classification was
probative as to defense-relatedness:
Whether or not the information and documents allegedly sought to
be obtained and transmitted by the defendant and his alleged co-
conspirators concerned, regarded or was connected with the national
defense is a question of fact solely for the determination of you,
the jury, taking into consideration all the circumstances of the alleged
crime and considering the alleged source, origin, character and utility
of the information and document . . . You may also consider the
testimony that the names of certain personnel and their functions
within O.S.S. were classified information.144
Both approaches are flawed. The Gorin rule, admitting classification as pro-
bative on the issue of culpability, ignores the extraneous impact on jury deter-
mination of defense-relatedness, an impact not likely to be mitigated merely by
general instructions to disregard. Furthermore, if Heine is good law, an effort
to preserve secrecy is a necessary element of the Government's case and is sure
to come out anyway. Consequently, as in Soblen, the problem of classification
should be directly faced. The failure in that and similar cases is that courts
have not instructed the jury on the complexity of classification and its frequent
use by Government agencies to protect interests other than national defense
even as broadly understood by the Congress. The classification system is the
principal mechanism of executive information control. To be sure, the Execu-
tive Orders that authorize classification make "national defense" the basis upon
classification is to be imposed, but it is fruitless to think that the variety of
concerns which animate executive secrecy can be lumped properly under
"national defense," even granted that Congress saw no sure limit to the phrase.
For example, we doubt that the drafters of the Espionage Act envisaged that
enhancement of foreign relations by protecting foreign confidences not
directly linked to military affairs "related to the national defense."
In our view, the best way to treat the problem under current law is to
permit classification to be used for purposes of showing Government intent
to maintain secrecy, but to instruct specialty that the Government can and does
maintain secrecy as to a substantial number of matters which have no "relation
to national defense" even within the broad meaning Congress gave that phrase
in 1917. That solution is by no means a happy cure to all the problems, but
it does at least reduce somewhat the prospect of the jury's being overly in-
fluenced by official designation of secrecy.
143. 301 F.2d 236 (2d Cir.) , cert. dcnicd, 370 U.S. 944 (1962).
144. Id. at 239 n.2. In Dubin v. United States. 363 F.2d 938 (Ct. Cl. 1966), cert.
denied, 386 U.S. 956 (1967). the court made use of classification in deciding that radar
systems mistakenly sold as surplus property were "related to the national defense" and
had to be returned to the government.
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In conclusion, the meaning of the phrase "national defense," after some
sixty years in the statute books, is not much clearer now than it was on the
date of its passage. Judicial gloss has not cabined its tendency to encompass
nearly all facets of policy-making related to potential use of armed forces.
Paradoxically, the limitation attempted by judge Hand in the Heine case may
augment the problem by making secrecy the litmus of defense-relatedness and
thus put government classification at the fore. despite the multiplicity of pur-
poses which secrecy in fact serves. The expansive reach of the term leaves
all-important whether Gorin was correct in regarding the statute's culpability
formulation as adequate to fend off the dangers of overbreadth.
2. Intent or Reason to Believe That it is to be Used to the Injury of the
United States or to the Advantage of a Foreign Nation. Sections 793 (a) and
(b) employ a complicated culpability standard. First, the entering, copying, or
obtaining must be done with the purpose of obtaining information respecting
the national defense. The mental state so defined is ambiguous only because
of the vagueness of the term "national defense." Second, the conduct must be
done "with intent or reason to believe that [the defense-related item obtained]
is to be used to the injury of the United States, or to the advantage of any
foreign nation." As we have seen, this formulation is substantially identical
to the standard used in section 794(a) ?145
The statutes do not provide definitions of the key terms "intent," "reason
to believe," "injury" and "advantage." In this respect, the espionage laws
share the characteristic ills of federal criminal law that result from the use of
undefined and exceedingly complex culpability standards to demarcate the
boundaries of federal offenses.146 Moreover, these espionage provisions have
generated little case law limiting their literal reach. That prosecutions have
been directed at clandestine transfer of information to foreign agents has led
courts to construe the culpability terms rather broadly. Because the courts
have not had to confront the culpability issues in the context of public speech,
current judicial constructions tend to aggravate the problems of plain meaning
constructions.
Sections 793(a) and (b) define offenses of acquisitive conduct, not
communication of any sort. Nonetheless, except in the oddest sort of situa-
tion,14T to satisfy the statutes' culpability formulations the conduct must be
done with the intention to reveal subsequently the information to someone else.
145. In subsections 793(a) and (b) the prohibited purpose is obtaining information
"respecting" the national defense, with intent or reason to believe it is to be used to ad-
vantage "any" foreign nation. Subsection 794(a) prohibits transfer of information "relat-
ing" to the national defense, with intent or reason to believe it is to be used to advantage
"a' foreign nation. No explanation for the differences appear and we doubt that they
were noticed.
146. See, e.g., I NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS,
WORKING PAPERS 119-20 (1970).
147. The free-lance saboteur would be the most likely candidate for violating these
statutes without contemplating any revelation of information he had obtained.
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If the actor intends only to use the information to contemplate America's
defense posture, he does not run afoul of these two laws. Mere satisfaction of
individual curiosity could not possibly injure or advantage nations. In most
instances, however, people who make efforts to obtain defense-related informa-
tion, whether journalists or spies, do so because they envision the possibility
of communicating it to others. When the actor expects to tell others, the statute
purports to make the acquisition criminal-depending upon whether the in-
tended or predictable consequences of revelation are that the information will
be used to injure the United States or to advantage any foreign nation. By
establishing predictable consequences as the test of criminality, however, these
statutes ignore, on their face, the questions which so concerned Congress in
rejecting direct publication controls in section 794: to whom and for what
reason is the revelation made.
(a) The Problems of Plain Meaning. Sections 793(a) and (b) pro-
scribe certain conduct (gathering, obtaining) when done with a certain state
of mind (intent or reason to believe) with respect to the consequences which
will ensue upon use of the information (injury to the United States or advan-
tage to foreign nation). We shall start our analysis of the culpability formula-
tion by consideration of the injury and advantage provision.
(i) Injury or Advantage. Only the "advantage" aspect of the standard
has received judicial elucidation. Although the courts have not devoted great
attention to the term, plainly they have chosen to regard it as generally
synonymous with "helpful." Thus, the requisite "advantage" may be inferred
when foreign agents learn of a particular plant's manufacturing an explosive
compound,148 or of functions -performed by various O.S.S. officials.149 The
practical consequence of this broad reading, however, is that if secret informa-
tion relating to the "national defense" is transferred, reason to believe that
advantage will result follows automatically. Other nations like to know what
is going on and regard themselves as benefited by whatever information they
can obtain.
Possibly courts and prosecutors have chosen to focus on defendants'
intention or reason to believe advantage will result, rather than injury, because
defendants might assert more plausibly that they did not intend injury. If
"injury" is determined with reference to the actor's subjective perceptions,
defenses are plausible in three common espionage situations: where trivial
information is sold, as in Gorin ; where the loyal citizen, threatened by black-
mail, selects the information to be conveyed to negate the possibility of serious
harm;150 and where a person believes that the United States would benefit
148. Slack v. United States. 203 F.2d 152 (6th Cir.), cert. denied, 346 U.S. 888
(1953).
149. United States v. Soblen, 301 F2d 236 (2d Cir.), cert. denied, 370 U.S. 944
(1962).
150. Sce United States v. Scarbeck. 317.F.2d 546 (D.C. Cir. 1962), cert. denied,
374 U.S. 856 (1963), a prosecution of a public servant brought under 50 U.S.C. ? 783.
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from a different political system and acts to bring it about by assisting a foreign
nation dedicated to the same ideology.tat Such defenses, regardless of their
potential success, are far harder to assert if "advantage" is read to mean
"help" and the prosecution need not show that advantaging foreigners means
hurting us. The defendant will seldom be able to prove that he had no reason
to believe that the transmitted information would help the intended recipient.
It is precisely this reading of the statute that the courts have adopted ; the
"injury" provision and the "advantage" provision are read as alternate
grounds of culpability. Thus, in Gorin the Court specifically held that injury
to the United States was irrelevant ; benefit to the Soviets sufficed.152 Yet,
this broad and disjunctive interpretation of advantage reduces the "injury"
standard to surplusage because it is improbable for the United States to be
injured except by conduct which also advantages some foreign nation.153 The
harm occurs because of a change in the relative strength of the United States ;
if the United States' side of the balance goes down, then the other side neces-
sarily goes up?154 This reading of advantage is curious not only in terms of
the usual rule of statutory construction that surplusage is not lightly to be
inferred, but also because both the Senate and the House primarily intended
to make criminal the conduct of those who gathered information with the
purpose that it be used. to,)njure the United States ; as passed by the House,
the bill did not even include the "advantage" formulation.155 Despite this
difficulty, however, the statutory language is so clear that we see no alterna-
tive to the courts' reading. The statute is clearly phrased disjunctively, and it
seems too late in the day to adopt a more limited reading of "advantage," such
as "specific strategic military benefit," which would give independence to the
concept of injury to the United States.
Serious problems are posed by the breadth of the advantage formulation
when possible application of sections 793(a) and (b) to activities preliminary
to public speech is considered. As we earlier pointed out, although the cul-
pability standards of the sections contemplate revelation of information, they
151. The Rosenbergs' activities arguably fit this model. See United States v. Rosen-
berg, 195 F2d 583 (2d Cir.), cert. denied, 344 U.S. 838 (1952).
152. 312 U.S. at 29-30.
153. The possible exception is revelation of matters which are diplomatically embar-
rassing. Thus, the claim might be made that disclosure of official documents confirming
the extent of the United States' "tilt" against India "injured" both countries, in that it
made resumption of normal relations both desired more difficult as a practical matter.
154. In Heine. Judge Hand noted that the opposite conclusion does not hold. Foreign
nations may be "advantaged" without the occurrence of any "injury" to the United
States. 151 17.2d at 815 k2d Cir. 1943). The point is made plain by the Attorney General's
ruling that transfer of defense secrets to allies wider the Lend Lease program did not
violate the statute. Sec note 179 infra.
155. The Senate formulation probably reflected Senator Cummins' willingness to
make criminal those who would "injure" the United States or "aid and abet" foreigners.
See 54 Coxc. R c. 3485 (1917) (remarks of Senator Cummins). Acting with "reason
to believe" that minimal benefits will accrue to foreigners is not "aiding and abetting."
Cf. United States v. Peoni, 100 F.2d 401 (2d Cir. 1938) (L. Hand, J.).
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draw no obvious line between clandestine transmission and public disclosure.
Plainly, the publication of secret defense information will normally advantage
foreign nations if advantage means only to help. The benefits accruing to a
foreign country from having particular knowledge do not turn entirely on
the means of transfer, although there are obvious advantages in knowing more
than your adversaries think you do.
If a distinction is to be drawn between the information-gatherer who intends
clandestine sale-clearly within the culpability standard of 793(a) and (b)-
and publication, the consequence portion of the formulation will not support
it.'" The legislative history of the Espionage Act suggests a different analytic
route. As we have seen, in rejecting liability for normal publication Congress
focused on motive rather than result. Thus, Congress intended to distinguish
revelation of defense information in espionage from the same revelation in
public debate, on the basis of the intent to inform the public. If a distinction
under 793(a) and (b) is to be drawn between obtaining information for
espionage and for publication, it should turn on the culpability of the motive,
not on a strained construction of what ultimate consequences will ensue.
(ii) Intent and Reason to Believe. What meaning in the culpability
provisions of section 793(a) and (b) should be given to "intent or reason to
believe"? Presumably "intent" means conscious purpose. The usual problem
in construing that term, when it is not explicitly defined, is whether it is
satisfied if the accused was aware, or, in some instances, should have been
aware, that prohibited results were likely to occur. However, the question
whether intent may be "constructive" is moot in a formulation that explicitly
makes criminal acting with "reason to believe" that the results will ensue. If
behavior other than that done with a purpose to bring about a prohibited
result is made criminal, it is the "reason to believe" standard which does it.
If the term is read broadly, a person has reason to believe that a result
will occur when he is aware of circumstances that would lead most people to
believe that it would follow.'ST The problem with such a broad reading of the
espionage statutes is that negligent conduct would be criminal-conduct where
the defendant was in fact ignorant of the likelihood of injury or advantage.
Although there is no indication that Congress intended so drastic a result,
the trial court in Gorin charged the jury in a manner susceptible to that
interpretation. Salich, who transferred the counter-intelligence reports, con-
sistently maintained that in view of the trivial information contained therein,
he did not believe that they could possibly injure the United States or ad-
vantage any foreign nation. The judge charged, however, that he was guilty
156. Taking that course requires an inappropriately narrow definition of "advantage"
in the scope of content of clandestine spying, or else mandates defining "advantage" differ-
ently depending upon what motive animates transfer.
157. Cf. Commonwealth v. Pierce. 138 Mass. 165 (1884) (Holmes, J.).
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990 COLUMBIA LAW REVIEW (Vol. 73:929
if "he knew facts from which he concluded, or reasonably should have con-
cluded, that the information could be used advantageously by the Soviet
Union."169 Although the court of appeals and the Supreme Court did not
object to this language, neither court manifested awareness of the possibility
that the jury's verdict might have rested on a judgment that Salich was not
aware of danger but merely impermissibly stupid.
Criminal statutes and the courts that apply them commonly fail to dif-
ferentiate adequately between an accused's conscious disregard of known
risks and his lack of perception of risks.159 In the great majority of instances,
the failure makes little difference because few defendants can avoid the
usual judgment that what is obvious to us is obvious to them.180 Moreover,
the circumstances where the problem is of real importance in the criminal
law-,as, for example, where defendants are drunk or mentally infirm-are
not likely to arise in the context of espionage or public speech about defense
matters. Nonetheless, the distinction between the disregard of risks and the
failure to perceive them is of sufficient concern in the espionage statutes to
warrant close attention. For example, it would be shocking if section 794(a)
rendered a man liable to life imprisonment on the basis of a private letter to a
foreign friend containing information that he did not realize had defense
significance. At a minimum, in the absence of clear evidence of contrary con-
gressional intent, the statute should not be deemed to have been violated
unless the defendant was cognizant of a substantial risk that his actions might
cause injury or advantage.iet
Even so limited, however, the "reason to believe" phrase causes obvious
difficulties with respect to information-gathering activities in contemplation
of public speech about defense-related matters. If words are given their usual
meanings, a reporter who obtains secret defense documents, intending that
they be published, has reason to believe that the information will subsequently
be used to injure the United States or to advantage a foreign nation. 162 For-
eigners try to keep up with our journals, just as we keep up with theirs ; as a
158. 111 F.2d at 717 (emphasis added).
159. Sec MODEL PENAL CODE COMMENTS 1 2.02, at 127-29 (Tent. Draft No. 4 1955).
160. Cf. Wechsler & Michael, Rationale of the Law of Homicide: I, 37 CoLuM L.
REV. 701, 710-712 (1937).
161. See also text accompanying note 308 infra.
162. In its brief in Gorin, the Government treated this point very lightly:
Sections 1(b) and 2(a) cannot be applied to punish surprised innocence. The
newspaper correspondents, the critical statesmen, the political commentators,
the students of military affairs, who obtain and reveal information regarding
the national defense are automatically excluded from the reach of those provi-
sions. For they apply only to those who obtain and reveal confidential or secret
information, broadly defined, of a military nature, with a conscious desire, or with
a reasonable expectation, of causing injury to the United States or advantage to
a foreign nation.
See Brief for United States at 82-83. Gorin v. United States, 312 U.S. 19 (1941). The
reasoning upon which "automatic exclusion" of newsmen is based eludes us. Obviously,
newsmen have a "reasonable expectation" of causing advantage when they publish
military secrets.
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consequence of the publication of what was formerly secret, foreign agents
may obtain information, the acquisition of which in a clandestine manner
would clearly be criminal. For example, had the Times published the fact that
the Bay of Pigs invasion of Cuba was imminent,le' is it not pretty clear that
Cuba would have been advantaged? Is it not also clear that the Times would
have had reason to believe such advantage would occur? Yet to make criminal
such conduct raises precisely the dangers of interfering with public debate
that so alarmed the successful opponents of censorship in 1917. Moreover,
such a reading of the statute undercuts the Gorin holding that "national de-
fense" is sufficiently limited by the scienter requirement in the statute. Prob-
lems of vagueness and overbreadth are hardly resolved if the foreseeable
consequence of some help to a foreign country is regarded as denoting an evil
intent which justifies letting the actor ascertain at his own risk whether the
information he publishes falls within the scope of the statutes.
There are accordingly serious problems with a construction of the
."reason to believe" phrase that would be satisfied by an awareness of possible
forbidden consequences, as opposed to a conscious intent to bring them about.
Can Congress possibly have meant what subsections 793(a) and (b) seem to
say?
(b) Legislative Background. The legislative materials permit no certain
conclusions as to Congress' understanding of the cumbersome culpability
standard of 793(a) and (b). Unlike the Senate action on subsection 794(b),
the vote on 793 did not follow a clearcut presentation of alternative readings.
Nevertheless, we conclude that the legislative history of 'the espionage statutes,
taken as a whole, supports the hypothesis that Congress understood the cul-
pability requirement of the gathering offenses of 793(a) and (b) not to be
met by an intention to engage in public debate or criticize defense policy.
Congress did not even clearly perceive that subsections 793(a) and (b) were
related to the problem of public speech with which they were struggling in
the debate on 794. Rather, the curious citizen individually concerned with
military policy was the symbol of innocence which predominated in their
discussions of 793. Because 793(a) and (b) on their face deal with gathering
information rather than communicating or publishing it, the possibility that
the curious citizen might be a reporter was not seriously considered.
(i) The Scnatc. In the Senate, most of the illuminating debate on the
793 provisions took place in connection with S. 8148. Section 1 of that bill
greatly extended the gathering offenses then existing under the Defense Se-
crets Act of 1911, and followed the 1911 Act in not conditioning criminal
responsibility on any culpability requirement other than having "the purpose
163. Their failure to have done so apparently influenced the decision to publish the
Pentagon Papers. See S. Uxcut, supra note 3, at 101-102.
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of obtaining information respecting the national defense."" Opponents of
section 1 urged that it be amended to require intent to injure the United
States or advantage a foreign country as an element of the various offenses
defined.1 5 Senator Cummins was the most determined advocate of this posi-
tion. His statements deserve attention because they are typical of the criticisms
of the proposal:
I am ... anxious ... to prevent the revelation ... in a time of war
to an enemy or to a foreign country of things that are connected with
the movements of our Army and our Navy. But I am not willing in
order to bring about that state of efficiency, if it be a state of effi-
ciency, to close the mouths of the hundred million of American people
upon all subjects at all times relating to the national defense. I think
that if we must allow this one man, however unfortunate it may be,
to go unpunished in order that these millions may preserve the liber-
ties which they have acquired through long and arduous labors, we
had better allow the one man to go unpunished. But I see no reason
for permitting that. It is not hard, I am sure, to prescribe the terms
of a statute which will punish any man who attempts to reveal to an
enemy or even to a foreign country or who gathers information for
the purpose of revealing to an enemy or a foreign country informa-
tion that ought to be confined to American shores. But it is not
necessary to spread a net of this kind in order to catch a fish of that
kind."
164. Section 1 of S. 8148, 65th Cong, 1st Sess. (1917), as reported by the Senate
Judiciary Committee on February 28, 1917, is quoted in note 112 supra.
165. While most of the debate on the lack of intent requirements focused on sub-
section 1(a), dealing with entry into defense-related places, similar objections were
advanced against the other provisions of subsection T of S. 8148, which roughly paral-
lelled the present subsections (b), (c), (d), and (e), of section 793.
I'ah (b), the parallel to the present 1793(b), covered:
(b) Whoever, for the purpose aforesaid, and without lawful authority.
copies, takes, makes, or obtains, or attempts, or induces or aids another to copy,
take, make, or obtain, any sketch, photograph, photographic negative, blue print,
plan, model, instrument, appliance, document, writing, or note of anything con-
nected with the national defense-
Paragraph (c) provided:
Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts
or induces or aids another to receive or obtain from any person, or from any
source whatever, any document, writing, code book, signal book, sketch, photo-
graph, photographic negative, blue print, plan, model, instrument, appliance, or
note, of anything connected with the national defense, knowing or having rea-
sonable ground to believe, at the time he receives or obtains, or agrees or attempts
or induces or aids another to receive or obtain it, that it has been or will be ob-
tained, taken. made or disposed of by any person contrary to the provisions of
this chapter.
The text of paragraph (d) was as follows:
Whoever, lawfully or unlawfully having possession of, access to, control
over. or being intrusted with any document, writing, code book, signal book,
sketch, photograph, photographic negative, blue print, plan, model, instrument.
appliance. note. or information relating to the national defense, willfully com-
municates or transmits or attempts to communicate or transmit the same to any
person not lawfully entitled to receive it. or willfully retains the same and fails
to deliver it on demand to the officer or employee of the United States entitled
to receive it.
166. 54 Co\c. Rec. 3487-$8 (1017) (emphasis added). Several other statements by
Senator Cummins clarified the intent requirement he thought desirable. For example:
You can not make a law, Mr. President. too severe for me aimed at the
acquisition of information concerning our Army and Navy and military arma-
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The chief response to Cummins' criticism, at least if measured by the
frequency of its iteration and the stature of its spokesman, was the refrain of
prosecutorial discretion voiced by Senator Overman, the manager of the bill.
He conceded the broadness and vagueness of section 1, but urged reliance on
prosecutors and juries not to indict or convict persons for information-
gathering or communication if they were innocent of any intent to aid the
enemy.167 While Overman repeatedly stated that section 1 was designed to
cover spying, he argued that a precisely drawn statute could not comprehend
all forms of espionage.168 Cummins pointed out that the activities covered in
section 1 could easily be undertaken "for the purpose of obtaining information
respecting the national defense" and yet be entirely innocent of any espionage
purpose, but Overman strongly opposed the notion that the section 1 pro-
hibitions should be conditioned upon intent to injure the United States or
aid a foreign country. Although Overman's primary justification for the
sweep of section 1 was fear of spying, when pressed by Cummins, he refused
to concede that citizens had any legitimate interest in being informed about
questions of national defense.169 Overman's position carried the Senate in the
ment intended to be revealed to an enemy or even intended to be disclosed to a
foreign country; I shall make no opposition to any proposition as that; but
when, in order to reach a person who has such an intent, you find it necessary
to say to me that I can not know anything about our ships and our armies and
our docks and our munition factories and our fields and our forests, all of which
are related to the national defense, then you are trampling upon a right that is
infinitely more important to be preserved than it is to preserve our secrets from
a foreign country.
Id. at 3488. Sec also id. at 3486. Cummins made similar criticisms of sections 1(b) and
(c). Id. at 3489. Senator Works focused on the same criticism.
Senator Cummins' other objections to section 1 centered on the related problems of
vagueness and executive and prosecutorial discretion. Id. at 3485.
167. Id. at 3586, 3590, 3597.
168. Id. at 3586.
169. Overman argued:
Now, what does this provide?
"Whoever goes upon or approaches"-for what? "For the purpose"-that
is what it says-for the purpose of what? "For the purpose of obtaining infor-
mation." What business has any citizen of the United States going in or upon
the radio stations or the naval stations or into the great war-defense stations
of the United States for the purpose of getting information? The Senator from
Id. Iowa would not do it without some authority.
Overman's position led to a colorful response from Senator Works:
It is shocking to me that any officer of the Government should even suggest,
much less recommend, legislation of this kind. It absolutely closes the door
against any inquiry or any effort to obtain information by any and every citizen
of this country relating to our national defense.
If the Czar of Russia should ever see this legislation, if it becomes a law.
he would turn green with envy at the extent to which the Government of the
United States has gone to close the eyes and stop the ears of its citizens against
any information as to what the Government is doing.
The Senator from North Carolina says that it only prohibits these things
as a means of gaining information-not information obtained with any ulterior
or improper motive, or in order that any improper use may be made of it, as in
the case of a spy, for example. We are spending millions and millions of dollars
for the national defense. The people of the country are compelled to bear that
burden, and if any one of them or any body of them should undertake to obtain
information as to whether that money is being properly expended as provided
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994 COLUMBIA LAW REVIEW [Vol. 73:929
first round of debates, and section 1 was passed without any mental element
other than "a purpose of obtaining information respecting the national de-
fense."fro
When the Senate later took up identical provisions in S. 2, Overman
moved on behalf of the Judiciary Committee an amendment to strike the
language "to which he is not lawfully entitled," brought forward from the
1911 Act, and to replace it with "with intent or knowledge that the information
to be obtained is to be used to the injury of the United States. or to the ad-
vantage of any foreign nation." The succeeding subsection (now 793(b)) was
similarly amended by the insertion of "with like intent or knowledge."171
Thus, without debate or explanation from Overman, Cummins' position on an
intent requirement carried the day in the 65th Congress. This important change
of heart apparently took place behind the scenes in the judiciary Committee,
yet no explanation. for the shift appears in the committee report, the debates,
or any other source we have been able to find. To assess the significance the
culpability requirement that was added to the S. 2 precursors of sections
793(a) and (b), it is obviously crucial to determine what its purpose was ?
understood to be.
There are two possible explanations. On the one hand, critics like Senator
Cummins had indicated that they would prefer to tolerate open discussion of
military affairs, even at the cost of alerting the enemy. The general thrust of
his position of protecting public debate must have been obvious to all listeners
in light of his vociferous objections to section 2(c). Thus, one possibility is
that political considerations, primarily the coming battle on 2(c), led Overman
to acquiesce in the addition of an intent requirement in section 1, where only
gathering information was at stake, with the idea that 2(c) would suppress
any general revelation of information so obtained. This explanation, if ac-
cepted, would bar application of 793(a) and (b) to information-gathering
preliminary to publication.
On the other hand, section 1 as originally drafted went considerably
beyond what was necessary to prevent revelation of defense information. As
pointed out by the critics, the provisions would have made criminal efforts by
Congressmen, let alone citizens, simply to find out ' what the military w:l,
doing. Yet mere possession of information is not harmful to national defense
interests ; harm occurs only when the information comes to the attention of
foreigners. Thus, given Overman's strong personal commitment to brii:Ed
prohibitions on disclosure, another explanation for the amendment may he
that he thought the culpability provision insisted upon by Cummins would he
satisfied if information were gathered with intent to publicize it. A reason to
in the appropriations he would, under this proposed statute, be a criminal, sub-
ject to fine and imprisonment.
Id. at 3586-87.
170. 54 CoNG. REC. 3665 (1917).
171. 55 CONG. REC. 778 (1917).
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believe injury or advantage would occur could then presumably be inferred
from the likelihood that the enemy would learn of it. Thus, Overman may
have believed that to concede that curiosity would not constitute an offense
did not sacrifice the statutory coverage he deemed most important. This
explanation would uphold the applicability of the law to activities preliminary
to public speech.
We believe that the first explanation is the more credible. It is plain that
Cummins' criticisms of S. 8148 led to the intent requirement added to S. 2.
Cummins' silence after the Overman amendment must have signified that he
thought the gathering offenses were appropriately limited by a culpability
standard requiring purpose to reveal to a foreign country. We suspect this
was the general understanding in the Senate after the Overman amendment.
The issue of revelation of defense information, all must have assumed, would
be resolved by the defeat or passage of 2(c).
(ii) The House. In the House, the debates are clearer that the gathering
offenses were not meant to cover activities in contemplation of public speech,
even though this intendment once again reflects inadvertence to the language
of the proposed statute. Although the House focus was primarily on section
4 of H.R. 291, some interesting commentary was offered on the first sections,
covering roughly the activities now dealt with in subsections (a) and (b) of
793.1'x2 As explained by the Chaiiman of the Judiciary Committee, Congress-
man Webb, section 1 of H.R. 291 was intended to clarify the meaning of the
phrase "to which he is not lawfully entitled"' which had been used in the
1911 Act.lrs Webb told the House that the ambiguous phrase had been
replaced by an intent requirement : "(W] hoever, with intent or knowledge,
or reason to believe that the information to be obtained is to be used to the
injury of the United States."174 Notwithstanding the use of the words
"knowledge, or reason to believe," Webb invariably spoke of this language
as requiring a conscious purpose to injure.176
172. Section 1 of.H.R 291, 65th Cong., 1st Sess. (1917) provided:
Whoever, with intent or knowledge, or reason to believe that the informa-
tion to be obtained is to be used to the injury of the United States, copies, takes,
makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photo-
graph, photographic negative, blue print, plan, model, instrument, appliance,
document, writing, code book, or signal book, connected with the national
defense, or any copy thereof, or with like intent or knowledge, or reason to
believe, directly or indirectly, gets or attempts to get information concerning
the national defense shall. upon conviction thereof, be punished by a fine of not
more than $10,000 or by imprisonment for not more than five years, or both.
173. [I]n that old statute the words are employed "to which he is not lawfully
entitled": but nobody knows what information the ordinary man is entitled to
receive, and consequently we were building on a foundation of sand. Before you
subject a man to a highly penal law, put him in prison for 20 years or take his
life, you ought to make everything you require of him or forbid him absolutely
specific.
55 CONC. Rac. 1591.
174. Id. at 1541.
175. Webb's purpose construction of the culpability standard was clear in several
statements :
Our difficulty was to ascertain to what a man was lawfully entitled, because
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The strongest evidence that the House understood this culpability formu-
lation to require purpose came from Congressman Graham. In contrast to his
opposition to prohibitions on publication without an intent standard, Graham
warmly embraced sections 1 and 2 of H.R. 291:
[Tlhe Committee has carefully guarded innocent people who might
communicate, who might obtain a photograph of some public work
connected with the defense of the country, from being held liable for
a criminal act, because the Government must prove affirmatively ...
that the person obtaining it had a guilty purpose, to wit, to injure
the United States.176
(c) Summary.l'i'' At least three interpretations of the culpability formu-
lation of subsections 793(a) and (b) will implement the congressional under-
standing that it should not be applicable to information-gathering where the
actor's purpose is publication. First, the courts might say that the legislative
history affords an implied defense for those whose information-gathering is
pursuant to a good faith purpose to criticize defense policy or participate in
public debate. Basically, we think that this is what Congress intended. Un-
fortunately, it is difficult to point to specific statutory language upon which
to rest this interpretation. As a general matter, the judiciary may read justi-
fication defenses into statutes when the legislative history and the need to
there was no law to define what he was entitled to. We provide that any man
who takes photographs, blue prints of a fort or a fortification having a purpose
to injure the United States. [sic] We have made it a definite offense and pro-
vided that any such person should be punished.
Id. See also Webb's remarks, id. at 1756, and the remarks of Congressman Mann to the
same effect. Id.
176. Id. at 1717-18.
One other item from the House debates on section 1 deserves mention in connection
with the culpability formulation of 793(a) and (b). In response to a question whether
section 1 would cover a person who stole information relating to the national defense
for personal use-e.g., a blueprint of a defense building a person appropriated for his
own private use-Webb replied that "injury of the United States" would probably be
construed to mean "military injury." Id. at 1591. See also id. at 1721 (comment of
Congressman Gard). However, Webb later helped to defeat an amendment to add the
words "military prejudice or" before "injury of the United States," the purpose of which
was to make section 1 applicable to military matters only. Id. at 1756-57. Thus, we are
doubtful that the House debates support the proposition that "injury of the United States"
should mean military injury only in some strict sense.
177. The Conference Committee made two changes in the phrasing of the precursor
to subsections 793(a) and (b). The first change altered the culpability standard of
793(a) and (b). and 794(a). and was thus reported by the House managers:
Section 2 of. the House bill made the person guilty for doing. the things
enumerated therein "with intent or knowledge, or reason to believe that it is to
be used to the injury of the United States." Under section 2(a) as agreed upon,
this provision is made to read, "with intent or reason to believe that it is to be
used to the injury of the United States or to the advantage of a foreign nation."
Id. at 3130. There was no explanation offered for the deletion of knowledge and no debate
in the House or Senate on the significance. if any, of it. Id. at 3264. The second change
promulgated by the Committee was the addition of "otherwise obtains" as a mode of
conduct covered by 793(a). No comment was offered on the significance of the addition.
and we believe "otherwise obtains" should accordingly be interpreted to cover acts of
physical intrusion or surveillance of the same genus as the enumerated acts: "goes upon,
enters, flies over.
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avoid serious constitutional problems so require. Nevertheless, this method
of conforming the statute to its legislative history should be pursued only if
no feasible alternative reading more in harmony with the statutory language
would accomplish the same result.
Second, one could read "reason to believe" not as stating an independent
basis of culpability, but rather as signifying the sort of evidence from which
the jury can, in the absence of explanation, infer purpose to injure or advan-
tage. The legislative history is replete with declarations that "evil purpose"
is required to violate these laws. Entirely absent, despite the "reason to
believe" language, is any indication that Congress understood reckless or
negligent behavior to be covered. If "reason to believe" were given this in-
ferential significance, the newsman would be shielded, since his purpose in
gathering information would neither be to injure the United States nor to
advantage foreign nations ; his actual intent to inform the public would defeat
the inference of purpose to injure or advantage that would otherwise flow
from his acting with knowledge of those consequences.
The difficulty with this reading of the culpability provision is that its
neutral application would exempt some traditional cases of espionage that
Congress must have meant to cover. Consider, for example, the serviceman
who sells defense documents to'foreigners. In many instances, he does not act
with the conscious purpose of bringing about the statutorily proscribed con-
sequences ; his motive is to obtain money for himself, and he may intend, as
Salich claimed in Gorin, with some justification, that no ill effects should
occur. The appropriateness of making his behavior criminal rests not on his
evil ends, but rather on his indifference to the results that will flow from the
means he has adopted. He should not be allowed to avoid criminal sanctions
under subsection 794(a), or 793(a) and (b), by claiming that the inferences
that might be drawn from his "reason to believe" should not be drawn because
his intent was only to enrich himself. Despite the impression of the language
used, senators and ~ congressmen who protested their willingness to punish
those who acted with "evil purpose" or "intent" to injure the United States
cannot possibly have thought that such conduct should go unpunished.
Another reason for rejecting a purely evidentiary reading of "reason to
believe" is that such an interpretation would contradict several of the clearcut
judicial constructions in espionage cases. The few courts that have considered
claims by defendants that they did not intend to injure or advantage by
transferring defense documents have relied on the "reason to believe" phrase
as a means of bringing the conduct under the statutes without searching for
dominant motivation.177i To employ the "reason to believe" language merely to
177a. Sec Gorin v. United States, 111 F2d 712 (9th Cir. 1940), af'd, 312 U.S. 19
(1941): United States v. Drummond, 354 F.2d 132 (2d Cir. 1965) ; cert. denied, 384
U.S. 1013 (1966).
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998 COLUMBIA LAW REVIEW [Vol. 73:929
evaluate the defendant's purpose is acceptable only if the sorts of explanations
which suffice to defeat inferences of intent are judged to be justifiable ones.
This, of course, shifts the inquiry from one into the state of mind of the actor,
and converts it into a general inquiry about justification. Here again, such a
reading of the statute would constitute a judicial interpolation resting on no
conceivable interpretation of statutory language.
The third, and we think preferable, method of giving effect to Congress's
understanding of the scope of the bill is to focus on the middle phrase of the
culpability formulation: the actor's state of mind with respect to whether the
defense material "is to be used" to bring about the proscribed consequences.
The passive syntax seems designed to refer to what the information-gatherer
understands about the use to which the information will be put by others. The
acquisitive serviceman contemplating clandestine transmission of material
intends or has reason to believe that its primary use will be to advantage a
foreign country or injure the United States. By contrast, while the reporter
may be aware that some readers will put published defense materials to that
.use, he envisions primarily other uses precisely opposite to those prohibited
in the statutory formulation. We think that it is consistent with the congres-
sional purpose to focus on what the obtainer thinks will be the principal use
of the materials, and that so read, the statute provides a statutory basis for
distinguishing conduct which was not intended to be made criminal.
Support for this reading of the culpability standard is found in a 1942
Opinion of Attorney General Biddle which held that defense contractors
would not violate the espionage statutes by transferring defense information
to our Allies under the Lend-Lease program:
Under the circumstances here involved, the primary advantage sought
is that of the United States itself ; the conferring of an advantage
upon an allied nation is but a means to that end.178
If this reading of the culpability provisions of 793(a) and (b) is correct,
those sections do not apply to the activities of reporters, newspapers, and
others who intend to engage in public speech about defense matters.
V. SUBSECTIONS 793(d) AND 793(e)
A. Introduction
These two provisions are undoubtedly the most confusing and complex
of all the federal espionage statutes. Unfortunately, they are also the statutes
that pose the greatest threat to the acquisition and publication of defense in-
formation by reporters and newspapers. The legislative drafting is at its
scattergun worst precisely where greatest caution should have been exercised.
178. 40 O. Any GEN. 250 (1942).
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The history of subsections 793(d) and (e) encompasses three statutes
and forty years. From the start, the key terms were formulated with hopeless
imprecision, and as a consequence, the legislative materials indicate a basic
and continuing congressional confusion about the ends sought to be achieved.
The culmination of this sloppy process was the enactment in 1950 of 793(e),
which was an unnoticed departure from the general pattern of the espionage
statutes that conditioned all broadly drawn offenses on a showing of culpable
purpose.
Subsections 793(d) and (e) provide:
(d) Whoever, lawfully having possession of, access to, control
over, or being entrusted with any document, writing, code book,
signal book, sketch, photograph, photographic negative, blueprint,
plan, map, model, instrument, appliance, or note relating to the na-
tional defense, or information relating to the national defense which
information the possessor has reason to believe could be used to the
injury of the United States or to the advantage of any foreign nation,
willfully communicates, delivers, transmits or causes to be commu-
nicated, delivered, or transmitted or attempts to communicate, de-
liver, transmit or cause to be communicated, delivered or trans-
mitted the same to any person not entitled to receive it, or willfully
retains the same and fails to deliver it on demand to the officer or
employee of the United States"entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or
control over any document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model,
instrument, appliance, or note relating to the national defense, or
information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully
communicates, delivers, transmits or causes to be communicated,
delivered, or transmitted, or attempts to communicate, deliver, trans-
mit or cause to be communicated, delivered, or transmitted the same
to any person not entitled to receive it, or willfully retains the same
and fails to deliver it to the officer or employee of the United States
entitled to receive it :.. .
* * * *
shall be fined not more than $10,000 or imprisoned not more
than ten years or both.179
The subsections are nearly identical. Each creates two offenses: one
involves willful communication of defense information to those not entitled to
receive it ; the other, retention of the material. The common language reflects
a shared ancestry in a single precursor provision, section 1(d) of the 1917
Espionage Act, which barred those with "lawful or unlawful" possession of
defense documents from communicating them or retaining them in the face
of a demand that they be returned. In 1950, when section 1(d) was split into
two provisions, treatment of the retention offense was made to depend on
179. 18 U.S.C. f$ 793(d), (e) (1970).
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1000 COLUMBIA LAW REVIEW [Vol. 73:929
whether possession of the material is "lawful," or "unauthorized." In the
first instance, the possessor is obligated to return the material only on demand ;
in the latter, the obligation to return commences on receipt.
The sweep of these provisions seems incredible when measured against
the congressional antipathy, manifested both in the 1917 debates and in
subsequent confrontations with the problem of secrecy, to broad prohibitions
that would hinder public speech on defense matters. No special culpability
requirement explicitly restricts their reach. Barring the possible effect of
limiting constructions, any "communicating" of defense material or informa-
tion to anyone not authorized to hear about it is a serious criminal offense.
Even retaining possession of such material is unlawful for those who lack
special authorization. If these. statutes mean what they seem to say and are
constitutional, public speech in this country since World War II has been rife
with criminality. The source who leaks defense information to the press
commits an offense ; the reporter who holds onto defense material commits an
offense; and the retired official who uses defense material in his memoirs
commits an offense.
Congress undoubtedly did not understand 793(d) and (e) or their pre-
cursors to have these effects when they were passed or when the problem of
publication of defense" information was considered on other occasions. If
it had so understood the subsections, they probably would not have been
enacted in their present form. But while the legislative record is reasonably
clear that a broad literal reading was not intended, it is entirely opaque as
to any particular narrow meaning. By the same token, while the broad literal
meaning of the subsections is almost certainly unconstitutionally vague and
overbroad, the statutory language does not point toward any one confined
reading as a means of saving them. With both the legislative record and vague-
ness objections undermining the viability of a broad reading, but with no
particular narrow reading having either the imprimatur of Congress or the
force of statutory language, the courts may have to declare 793(d) and (e)
unconstitutional.
Given the imprecision of the statutory language and the absence of
judicial constructions, analysis of the subsections must focus on the legislative
materials. Unfortunately, the interrelation of the interpretive problems makes
it impracticable to organize such an analysis around substantive issues, as
has been done in the preceding sections of this article. Instead, we shall have
to follow the development chronologically. through three separate statutes.
of the communication and retention offenses now codified in subsections
793(d) and (e). Then we will attempt to pull together the materials in terms
of the problems of interpretation posed by these provisions.
Confusion has surrounded these offenses from the first statute in 1911,
through the voluminous debates on the Espionage Act of 1917, and into the
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remarkably casual 1950 amendment that put 793(d) and (e) into their present
form. One major problem is the meaning of "not entitled to receive it," which
defines to whom communication of defense information is barred. This term
has been in the espionage laws since 1911, but it has never been defined by
statute and in 1917 a provision that would have given the President power to
say who was and was not "entitled to receive" defense information was struck
from the Espionage Act. In view of this deletion, it is questionable whether
the term can be given meaning by reference to Executive Orders. And even
if the President is deemed to have implicit authority to implement the "not
entitled" phrase, it is most doubtful whether any existing Executive Orders
actually do implement the term. The classification system is exceedingly coy
about whether it is backed up by any criminal sanctions. None of the ap-
plicable Orders make any reference to the "not entitled to receive it" formula-
tion of 793 (d) and (e).
Another vexing problem is whether and to what extent 793(d) and (e)
require culpable motivation as an element of the offenses they describe. With
respect to communication and retention of tangible "documents" and other
enumerated items, the subsections use only the word "willfully," suggesting
merely the requirement of knowing or reckless engagement in the act of dis-
closure, as contrasted to the other,gspionage provisions which require ulterior
purpose to harm United States' interests. However, in the confusion prevailing
during the 1950 revision, some members of Congress may well have regarded
"willfully" as implying an anti-United States motive. A. second question con-
cerning culpability is what function is served by the phrase that modifies
"information": "which information the possessor has reason to believe could
be used to the injury of the United States or to the advantage of any foreign
nation." Does the phrase refer merely to the type of information disclosed or
is the actor's awareness of the possible consequences of a particular disclosure
an element of the offenses involving "information?"
A third interpretative problem concerns what materials and information
are covered by the subsections. Must the tangible documents and intangible
information be derived from government sources, or do the subsections also
protect information or writings independent of government origin, such as in-
formation about troop movements in plain view? Moreover, serious questions
arise as to whether particular items should be classified as documents or infor-
mation. Although subsections (d) and (e) cover both categories, the charac-
terization may nonetheless be significant if the phrase that modifies "informa-
tion" imposes a significant culpability requirement applicable only to "informa-
tion" and not to "documents."
Overriding all these interpretive issues is the problem of how the sweep-
ing language of 793(d) and (e) should be reconciled with the clear message
of the 1917 and 1950 legislative histories that publication of defense informa-
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1002 COLUMBIA LAW REVIEW (Vol. 73:929
tion for the purpose of selling newspapers or engaging in public debate is
not a criminal act. Should publication be treated as a mode of conduct dis-
tinguishable from communication animated by the same motivation? This was
our conclusion as to the proper reading of 794(a)'s offense of communicating
defense information to foreigners, but there are great problems with applying
the same analysis to the communication offenses of 793(d) and (e). The
latter offenses are not narrowly drawn in terms of the designated recipients
of criminal communication, and thus it is well nigh impossible to distinguish
publication from communication in this statutory context. Moreover, the legis-
lative history generally treats publication and non-culpable communication as
equally deserving of protection. This suggests that Congress' concern not to
criminalize publication of defense information must be effectuated by an
analysis of 793(d) and (e) that applies across the board to the communication
and retention offenses as well.
B. The 1911 Act
The communication offenses of 793(d) and (e) originated in the fourth
and fifth clauses of section 1 of the Defense Secrets Act of 1911.180 The fourth
clause covered whoever, in control of any document or knowledge connected
with the national defense, "'willfully and without proper authority, communi-
cates ... the same to any person not entitled to receive it, or to whom the
same ought not, in the interest of the national defense, be communicated at
that time." The next clause covered whoever "being lawfully intrusted with
any such document ... or knowledge, willfully and in breach of his trust, so
communicates . . . the same." Unlike the current provisions, the 1911 Act
did not make mere retention criminal. Clause four, however, can be read so
broadly as to make it an offense for anyone to discuss any defense matter with
anyone else unless he has been given permission. On the other hand, it can be
read to apply only to specially selected personnel.
The amorphous formulations of the 1911 Act were subjected to no
significant scrutiny either in committee181 or on the floor of Congress.182 In
180. The fall text of the 1911 Act is quoted at note 25 supia.
181. The five-page report of the House Judiciary Committee, H.R. REP. No. 1942,
61st Cong., 3d Sess. (1911), adopted without change as the Senate Committee Report,
S. REP. No. 1250, 61st Cong., 3d Sess. (1911), contains no clarification of the meaning
of such key terms as "information respecting the national defense," "place connected
with the national defense," "knowledge . . . to which he is not entitled," or "without
proper authority." The stated purpose, according to the Report was "to protect the
nation against spying in time of peace." Id. at 2. All the examples cited in the Report to
demonstrate the need for the statute were cases in which information concerning defense
installations, military capabilities, or other similar information useful in war were collected
by agents of foreign governments. The Report makes no mention of any general need
for military secrecy and does not discuss whether publication by a newspaper for the pur-
pose of informing the public about military affairs would constitute "communica(tioni,"
"without proper authority," "to any person not entitled to receive [the information), or to
whom the same ought not, in the interest of the national defense, be communicated at
that time."
182. The House debates covered less than two pages of the Congressional Record.
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the House, Congressman Bennet asked what was meant by the phrase "to
which he was [not] entitled." Chairman Parker, for the House Judiciary
Committee, replied that the statute originally included the word "wrongfully,"
which had seemed "vague and ambiguous" to the committee and had been
replaced by "not entitled."188 Parker failed to indicate what the new phrase
meant or why it was less ambiguous than "wrongfully." No questions were
even raised about the meaning of "in breach of his trust," or equally important,
the scope of "willfully communicates.""
Despite the paucity of legislative guidance, we think that clauses four
and five were intended to cover only government employees, and, perhaps,
persons who came upon information because of their employment with gov-
ernment contractors or who had a special trust relationship with the Govern-
ment. First, this limitation is suggested by the overall structure of the 1911
Act. The first three clauses clearly applied to the ordinary citizen, but they
contained limited prohibitions. Thus, the citizen who went to certain places
for the purpose of obtaining information committed an offense ; similarly, he
committed an offense if he obtained such information while actually in such a
designated place; finally, he committed an offense if he received information
that he knew another had obtained, in violation of the two earlier prohibitions.
In contrast, the prohibition on communications in clause four is not so limited.
A prohibition on communication of defense matters without permission, ap-
plicable to all citizens, in a statute that made obtaining copies of government
documents criminal only if done on government property, is improbable. The
statutory context suggests, therefore, that clause four was intended to im-
plement the limited prohibitions on citizen conduct by requiring government
employees, or others with officially authorized access to defense information,
to be discreet in their disclosures to the general public.
Second, the language used in defining the communication offense is more
appropriate to regulating the conduct of government personnel than that of
citizens generally. Clause four could be breached only by a communication
"without proper authority," and then only to a person "not entitled to receive
See 46 CONG. REc. 2029-30 (1911). The Senate debates were even less extensive. Id. at
3516.
183. Id. at 2030. Bennet persisted, asking whether a tourist would be liable under the
statute if he took a photograph which happened to include a military installation, and
adding "we ought to pass with some hesitation a bill which makes the innocent act of a
person a crime." Congressman Hobson replied that the taking of such a photograph
would not be criminal because it "would not be giving away any national-defense secret."
These conclusory statements constituted the whole of the debate in the House, which
passed the bill without objection. The Senate debates contain no mention of the possible
application of the statute to non-espionage situations.
184. As proposed by the justice Department, the 1911 legislation contained a pre-
sumption of criminal intent from the fact of communication along the lines of the pre-
-mptiun of intent contained in the British Official Secrets Act of 1911, 1 & 2 Geo. 5, c. 28.
this presumption was eliminated by the House Judiciary Committee, as Chairman Parker
explained, because it was regarded as "not fair." However, no indication was given as to
what meaning should be given the culpability standard "willfully."
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1004 COLUMBIA LAW REVIEW [Vol. 73:929
it," but no body of statute law spoke to questions of "authority" and "entitle-
ment." Since nothing in the 1911 Act defines the concept, we believe it is fair
to read this provision as making conduct criminal only when in disregard of
rules concerning communication of defense information known to particular
actors who were obliged to comply with them. Thus, clause four presumably
referred to military and other orders specifying that certain information or
documents should be given only to a limited class of recipients. Such a reading
of "authority" and "entitlement" still leaves problems because no general
classification or secrecy system existed in 1911, and the issue of who had
authority to make such rules would. have posed difficulties were the statute
applied to non-military government personnel.1U Nonetheless, the alternative
reading of applicability to all citizens is of radical sweep in the context of the
1911 Act, and poses forbidding problems of interpretation of the "authority"
and "entitlement" phrases.
Clause five is more clearly limited only to a restricted class of persons. It
presupposes that an actor who has been "intrusted" with documents or knowl-
edge-the government employee or contractor-is the target of the prohibition.
Our narrow reading of clauses four and five is supported by the Attorney
General's 1916 Report urging new espionage legislation, which indicated that
he viewed the 1911 Act as having a narrow reach. He asserted the need for
[A]n act making it a crime to obtain, without lawful authority, or
to communicate to a foreign Government or any officer or agent
thereof, or to any other person, any facts or information relative to
the national defense obtained by virtue of employment in the service
of the United States, or obtained from unlawful access to Govern-
ment papers or other property, or by fraud upon or connivance with
a Government official or employee, or otherwise unlawfully obtained
or retained tae
The Attorney General clearly did not believe the existing law prohibited all
communication about defense matters.
On the assumption that clauses four and five of the 1911 Act were in-
tended to apply only to a limited class of persons, a question of central im-
portance is whether "publication" of defense information by such persons-
either by speaking to the public directly or by communicating to a reporter-
was criminal. While Congress did not directly address the problem, the struc-
ture of the Act indicates that a government employee committed an offense
by such behavior, although the listener clearly did not. Unlike the Espionage
Act of 1917, the 1911 statute did not use both "communicates" and "pub-
lishes." Communicate probably was meant to cover both, as it surely does in
185. The relevance of the Executive classification system to the meaning of entitle-
ment in 793(d) and (e) is discussed at text following note 327 supra.
186. 1916 Arr'Y GEM. ANN. REP. 19.
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ordinary speech.187 Second, the penalty provisions of the 1911 Act varied sanc-
tions depending on whether the information was communicated to foreign
governments.188 The sentencing distinction makes no sense unless telling
American citizens restricted information was also illegal. Therefore, the issue
is whether reporters were to be treated differently than other domestic recip-
ients for this purpose. Assuming that the law covered employees only, we see
no basis for supposing that Congress would have intended to exempt their
interchanges with the press, although the problem was not, as far as we know,
considered. Thus, under clause five, the criminality of a statement directly to
or intended for the public seems clear unless a phrase, "other than reporter,"
is to be forcibly interpolated. Under clause four the point is equally clear
unless one regards the first amendment as a special source of entitlement to
information when the communication is preparatory to public debate. Such a
view would be one imposed on the 1911 Act, and does not derive from the
statute's language or intimations in its legislative history. The idea that the
first amendment would have so infused the "not entitled" phrase would un-
doubtedly have surprised the Blackstonian conceptions of a 1911 Congress.
The 1911 Act set a pattern for the subsequent legislation by using sweep-
ing language in a statute that was probably intended to have a narrow effect.
Once in the statute books, the formless terms of the 1911 Act were accorded a
respect and a putative clarity in later legislative stages out of all keeping with
the casual process that spawned them.
C. The 1917 Act
In the Espionage Act of 1917,189 the predecessor provisions of 793(d)
and (e) appeared as a single section, 1(d), fashioned from clauses four and
five of the 1911 law. It covered:
[W] hoever, lawfully or unlawfully having possession of, access
to, control over, or being intrusted with any document, writing, code
book, signal book, sketch, photograph, photographic negative, blue
print, plan, map, model, instrument, appliance, or note relating to
the national defense, willfully communicates or transmits or attempts
to communicate or transmit the same to any person not lawfully enti-
tled to receive it, or willfully retains the same and fails to deliver it
on demand to the officer or employee of the United States entitled to
receive it ....190
This statute extended the 1911 law considerably, adding the offense of reten-
tion and, more importantly for our purposes, purportedly broadening the law
187. See text following note 277 infra.
188. The penalty for violation of any section 1 offense was 1 year, while section 2
provided 10-year maximum sentence for one who committed section 1 offense and com-
municated information thus illegally obtained to an agent of a foreign government.
189. 40 Stat. 217 (1917).
190. Id. at 218.
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to control the conduct of both lawful and unlawful possessors of defense docu-
ments and hardware. Read literally, subsection 1(d) disregards the actor's
relationship to the Government. On the other hand, Congress cut back on the
1911 law's apparent coverage because subsection 1(d) concerned only tangible
items, and arguably information derived therefrom.101 It did not restrict the
conduct of a person whose knowledge of information of defense significance
came from personal observation.
The confusion in the 65th Congress concerning subsection 1(d) was con-
siderable. The legislative history raises serious doubts as to whether Congress
had even a vague understanding of subsection 1(d) by the time the final votes
were cast. As previously recounted, the Wilson Administration originally
sought broad information controls, and its initial bill, S. 8148, sailed through
the 1917 Senate by a huge margin in substantially the terms its sponsors
desired. The House, however, reacting to the protests of the nation's news-
papers, allowed S. 8148 to die. When the next session opened and S. 2 and
H.R. 291 were debated, the Administration forces could not win acceptance of
broad prohibitions. First, both the House and Senate committees narrowed
the scope of provisions that limited public access to defense installations by
requiring a culpable purpose beyond mere satisfaction of curiosity. Second,
and most important, the 4dministration could not, despite its most vigorous
efforts, secure enactment of any form of censorship provision.
Subsection 1(d), however, alone among the major provisions in the orig-
inal Wilson proposal to the Senate, survived substantially intact. Unfortunately,
the legislative record is not plain on whether subsection 1(d)'s hardiness re-
flects Congress' approval of, or inadvertence to, the effects its literal reading
compels. The provision was debated, and then briefly, only during the debate
on S. 8148 when the Senate was acquiescent to the Administration's sweeping
proposals. At that time, so far as the debates reveal, it was understood to be
an extremely broad prohibition against communication of defense matters. In
the S. 2 debate, although little mention was made of subsection 1(d), the
Senate totally rejected the notion of broad information controls. Did the
Senate's understanding of subsection 1(d )'s language also change?
The House action is much easier to comprehend. The comparable pro-
vision that passed the House, section 3 of H.R. 291, was thought from the
start to be a narrow provision, applicable we believe only to government em-
ployees and contractors. At conference, however, no one indicated that the
two houses of Congress had different understandings of the provision's mean-
ing. Instead, the conference proposal based on the original section 1(d) of S.
8148 was enacted without even being mentioned. At the same time, other
191. See text accompanying note 214 infra.
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provisions, arguably necessary to give section 1(d) any legal effect, were
eliminated.
1. S. 8148. When S. 8148 was introduced in the Senate in February,
1917, section 1(d) was substantially in the form in which it was ultimately
enacted. The sole difference was that the proposed law covered "document ...
appliance, note or information relating to the national defense."192 The word
"information" was later dropped. The debates on section 1 of S. 8148, however,
centered not on section 1(d), but on section 1(a), now subsection 793 (a). As
will be recalled from our earlier discussion, that section as originally proposed
made criminal going on or near designated places to obtain defense informa-
tion to which one was "not lawfully entitled." Cummins and other critics
focused their fire on the "lawfully entitled" language in section 1(a) . The
content of the phrase is critical to the meaning of 1(d). Time and again
Cummins exploited the fundamental ambiguity of the term. Is one "entitled" to
information unless its acquisition is prohibited by some statute or regulation,
or is one entitled to nothing unless its acquisition is expressly authorized?
Cummins was eager to impress the Senate with section 1(a)'s sweep, and he
thus argued that the provision required affirmative authorization.193 So read,
with the absence of any body of statute law or executive regulation creating
such entitlement, section 1(a) would indeed have been a remarkably broad
prohibition. To take an example Cummins used, asking the Secretary of the
Navy a question about a defense-related matter he was not privileged to dis-
close would technically have been a crime.'"
Other Senators rejected Cummins' interpretation and insisted that a
citizen would be lawfully entitled to information unless some statute or lawful
order said he was not to have it.195 These reassurances did nothing to alter
Senator Cummins' understanding, probably in large part because Senator
Overman, the bill's sponsor, was confused and inconsistent. Overman clearly
believed that "not lawfully entitled" meant that the citizen had acted in
violation of a statute or rule, rather than that he had not been expressly au-
thorized, but too often he spoke inconsistently:
192. See 54 CoNG. Rzc. 3409 (1917).
193. For example, Cummins argued "We have no statute prescribing who is entitled
to such information. There is no common law determining who is entitled to such informa-
tion, and I do not know whether all of the officers of the Army would be entitled to it,
or the officers of the Navy. I do not know whether anybody but the Commander in -Chief
would be entitled to it." 54 CONG. REc. 3486 (1917). See also id. at 3487, 3489, 3492
(similar statements by Cummins). Senator Works treated entitlement the same way.
Id. at 3484, 3486.
194. 54 Corte. REc. 3499 (1917) (remarks of Senator Cummins).
195. Thus Senator Sutherland observed. "the phrase 'lawfully entitled' means nothing
more and nothing less than that the particular information must have been forbidden, not
necessarily by an act of Congress; because in dealing with military matters the Presi-
dent has very great power." 54 CONG. REc. 3489 (1917). See also id. at 3490 (remarks
of Senator Walsh) ; id. at 3492 (remarks of Sen. Sutherland).
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. this matter is covered by using the words "not lawfully entitled."
That means against any statute of the United States or against any
rule or regulation prescribed.
Now the Senator wants to limit us to a statute. We will have to
go to work here and pass a thousand statutes or more if you limit
it to that. This language is general. It does not particularize. Any
man who goes in and on and approaches the places named for the
purpose of obtaining information on these matters is punishable
under this law. What business has any man to go, without lawful
authority, in and upon our national-defense stations for the purpose
of getting information? Why, there is no American citizen who
needs to have the information unless he goes by lawful authority;
and if he goes without lawful authority he ought to be punished,
because he goes for the purpose of giving the information to an
enemy.19a
Despite Overman's confusion and Cummins' stubborn insistence that
entitlement required authorization, the debates on subsection 1(a) reveal a
general consensus that one was not "lawfully entitled" to information only
if someone's orders or statutes precluded its acquisition. Presumably by the
phrase used in subsection 1(d), "not lawfully entitled to receive it," was
similarly understood.
The debate never focused, however, on who had the power, and by
what authority, to issue the necessary implementing orders. As we shall see,
that is a central and very complicated question under the current subsections
793(d) and (e). S. 8148, drafted in the Executive Branch,19T included a
provision, section 6, which gave the President important rule-making authority
under the Act as a whole. It stated:
The President of the United States shall have power to designate
any place other than those set forth in paragraph (a) of section 1
hereof as a prohibited place for the purposes of this chapter, on
the ground that information with respect thereto would be prejudicial
to the national defense : he shall further have the power, on the
aforesaid ground, to designate any matter, thing, or information
belonging to the Government, or contained in the records or files
of any of the executive departments, or of other Government offices,
as information relating to the national defense, to which no person
(other than officers and employees of the United States duly
authorized) shall be lawfully entitled within the meaning of this
chapter: Provided, however, That nothing herein contained shall
196. 54 CONG. R c. 3586. See also id. at 3489.
197. Although Executive Branch drafting of major legislation is now commonplace,
that S. 8148 had been so authored evoked Cummins' vigorous criticism. See, e.g., 54 Conc.
Rac. 3493 (1917). Undoubtedly, that the technical aspects of the legislation were so ill-
understood by the sponsors reflected their lack of participation in its drafting. Thus, the
House Debates on H.R. 291 were much clearer because the Congressmen in charge knew
the content of the legislation they were discussing.
In general, a major difficulty with these laws is that Congress has too often let the
Executive Branch do the drafting while at the same time trying to control the results
by seeking assurances concerning the limited intention of broad formulations. Given that
information control is an area where President and Congress inevitably differ, the ap-
proach is sure to breed confusion as to coverage.
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be deemed to limit the definition of such information within the
meaning of this chapter to such designated matter, thing, or infor-
mation.108
Our judgment, based on the structure of S. 8148, is that the Administra-
tion intended section 1(d) and section 6, to provide statutory authority for a
classification system backed by criminal sanctions. Pursuant to section 6, the
President could designate any "matter, thing or information belonging to," or
in the files of, the Government as being information related to the national de-
fense. It granted him power beyond what he had as Commander-in-Chief, and,
fairly read, would have precluded legal challenge to the factual basis for
characterization of particular information as defense-related. Once such an
order was made, section 1(d) was triggered, and only "duly authorized"
persons would be "entitled to receive it." In such cases, therefore, section 6
would have resolved the fundamental ambiguity inherent in the entitlement
concept brought forward from the 1911 Act: all citizens would be disentitled
unless authorized by executive regulation. Similarly, Presidential orders under
section 6 would implement section 1(a) and 1(b) of S. 8148 (now subsections
793(a) and (b) )-prohibitions against, respectively, going on certain places
to obtain, or obtaining, information to which one was not entitled. If a person
knowingly went to the War Office to obtain a document protected under
section 6, he would have violated both section 1(a) and 1(b). If he obtained
the document and communicated it to someone' not authorized by Executive
Order to have it, he would have violated section 1(d).
This rather neat Administration package of gathering and communicating
offenses implemented by executive definition of who was "not entitled" to
obtain or receive defense information was unraveled when the conference ulti-
mately cut most of section 6 from the Espionage Act. The problem, however,
is whether the executive rule-making authority there set out was intended
to be the exclusive means by which the "not entitled" language of section 1(d)
was to be given effect, and if so, whether the ultimate rejection of section 6
left section 1(d) without content.19?
Unfortunately, there was little informative discussion either in the debates
on section 1(a) or otherwise of the relationship between section 6 and the
other provisions of the S. 8148. Only Senator Works clearly saw that "law-
fully entitled" was intended to be defined by recourse to the provisions in
section 6 ;200 Senator Cummins, although he marvelled that section 6 could
even be proposed,1`01 did not explicitly ground his understanding that "entitle-
198. 54 CoNG. Rec. 3409 (1917).
199. From the proviso to section t, it is clear at the very least that 1(a) was not
thought limited to information defined as restricted under section 6. However, section
1(a) was primarily designed to prohibit acquisition of information about places; such
information would be in plain view to a person on the premises.
700. See. e.g., 54 Co-,r.. REC. 3184, 3487-k 1917).
201. 54 CONG. REC. 3589 (1917).
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1010 COLUMBIA LAW REVIEW (Vol. 73:929
ment" required express authorization upon section 6's grant of power to
limit information to those "duly authorized" to have it. Quite clearly more-
over, Senator Sutherland did not see the relationship. He conceived the
President or his agents as having power to issue rules bearing upon "entitle-
ment" pursuant to his powers as Commander-in-Chief,2o2 and he made no
mention of section 6.
The interesting question is what the rest of the Senate was thinking.
Senator Cummins subsequently proposed amending section 1(a) to prohibit
entry onto premises in violation of "a statute or lawful order of the President
of the United States,203 which would conform section 1(a)' to Senator Suther-
land's understanding without making use of the "entitlement" language. One
possible objection to the proposal, that the President might be precluded from
broad delegation of authority to his agents, was not made. Instead Senator
Townsend urged the amendment's rejection because he doubted the President's
constitutional authority to make rules about the variety of places covered by the
Act R04 and Senator Overman pressed that the entitlement language merely
retained a concept that the 1911 Act had already placed in the statute books.205
Thus, the role that section 6 was to play in defining "entitlement" was never
clarified.
The lengthy, and ultimately unedifying debate on section 1(a), and the
meaning of "lawfully entitled" as there used, precluded lengthy debate on the
same issues as raised by section 1(d) 20' Whether the not entitled language
in 1(d) also had meaning independent of Presidential action under section 6
was never considered. Indeed, the only time that 1(d) was debated in the
S. 8148 debates was in response to Cummins' proposal to strike the retention
offense.20? This amendment was rejected, but the debate upon it is important.
Cummins construed 1(d) to require a citizen to provide authorized government
personnel with whatever defense information he had personally collected from
whatever sources ; otherwise he would be unlawfully retaining it. He thus
did not understand the enumerated items covered by 1(d) to be restricted to
documents or information that originated with the Government and which the
202. 54 CONG. REc. 3491-92 (1917). Cummins asked whether Presidential power
extended to prohibiting entry into a steel factory. Sutherland's response was "not unless
it has become a part of the national defense." Id. at 3492.
203. 54 CoNG. REC. 3586 (1917).
204. 54 CoNG. Rec. 3587 (1917). Senator Townsend was either ignorant of, or dis-
agreed with, the view that "entitled" meant forbidden by statute or order: Id. Unfortu-
nately, Sutherland was absent from the floor when Cummins' amendment was discussed.
205. 54 Conc. Rec. 3588 (1917).
206. After his efforts to amend 1(a) failed, Cummins offered a comparable amend-
ment to 1(d) for the record. He proposed to change the language of section 1(d)-"not
lawfully entitled to receive it"-to "who is forbidden by a statute or a lawful order of the
President of the United States to acquire or receive it." Scc 54 CLING. REc. 3601 ( 1917).
The amendment was rejected without discussion, presumably because it was thought that
the issues were the same ones that had been involved in the defeat of 1(a)'s amendment.
207. 54 CONG. Rec. 3601-04 (1917).
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President had designated under section 6. He posed the case of a man who
knew how many bushels of corn or wheat have been raised in Iowa. On the
assumption that such matters relate to the national defense, was it not wrong,
Cummins argued, to compel him to turn over his findings to any authorized
Government official ?208 Surprisingly, everyone who commented accepted Cum-
mins' broad reading of the statute as correct, but deemed it appropriate to
compel such cooperation.20
If defense documents and information were covered by section 1(d)
without regard to their source, any private conversation concerning national
defense matters was a criminal communication. Surely even S. 8148 had
not planned to go that far because section 2(c), the censorship provision, was
triggered only by Presidential regulations. Yet when discussion turned to
section 2(c), Senator Lee specifically pointed out section 1(d )'s sweeping
scope-
I am inclined to think that item (c) [the publication provision]
is absolutely correct. As has been pointed out, it applies to times of
war; it applies to military movements in time of war ...
I think it is all right; but when you go back to section (d), on
page 3-we have passed that, but it may yet come up in the Senate-
I think that is as far in the Wrong as the provision under discussion
is right.
Eliminating certain of the parenthetical sentences, subdivision
(d) would simply read:
Whoever, lawfully or unlawfully, having possession of informa-
tion relating to the national defense willfully communicates or trans-
mits the same to any person not lawfully entitled to receive it shall
be punished-
And so forth.
That, I take it, Mr. President, is aimed at any newspaper
reporter who gets any kind of information about military matters
in time of peace.210
Lee's observations. prompted no rejoinders that he had exaggerated 1(d)'s
coverage. Section 1(d) received no further attention, and S. 8148 was
pas.211
At this point in the legislative history, subsection 1(d) seems to have been
understood as a sweeping prohibition on communication and retention of
208. Id. at 3602.
209. Sec id. at 3603 (remarks of Sen. Williams) "Any man who would refuse to
communicate to the government ... upon proper inquiry would be spiritually a traitor
to his own land." Sen. Fall was more cautious, urging that courts would presume that
the legislature had not intended "a futile or foolish tbing." Id. at 3603. Nonetheless, "if
it became necessary . . to ascertain how many bushels of wheat were today in the
elevators within the State of Iowa as a part of the national defense . . . and the Senator
from Iowa was to refuse to deliver that information . . . to the party whose business it
was to obtain it, I should say that the Senator from Iowa was -guilty under this act." Id.
at 3604.
210. 54 CONG. REC. 3605 (1917).
211. Id. at 3665.
F .
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defense information whether or not derived from government sources. There
are problems of course, with imputing to the Senate as a whole observations
by critics who were trying to alarm by stressing the statute's breadth. Nonethe-
less, this reading is supported by the untroubled Senate passage of 2(c) at
this first stage of its legislative consideration. Not a word was said to show
that the proposed language had a narrow intendment although Senator Over-
man said only spies and traitors need fear prosecution. In terms of the issues
we posed at the outset of our discussion of subsections 793(d) and (e), the
Senators who spoke consistently assumed the broadest possible coverage for
section 1(d).
2. S. 2. Section 1(d) was no more at the forefront of discussion in the
debates upon S. 2 than it had been in the earlier discussion of S. 8148. The
only action directly taken on 1(d) was adoption of an amendment, proposed
at the outset of Senate consideration of S. 2 by Senator Overman for the
Judiciary Committee, which deleted the word 'information."n2 The most
plausible explanation for this action emerges if one relates it back to Cummins'
criticism of the retention offense in S. 8148. He had stressed the impropriety
of compelling the citizen, in time of peace as well as war, to furnish the Gov-
ernment with privately gathered defense information. The impropriety, in
Cummins' view, was magnified because of the breadth of "related to the
national defense." "
In our opinion, Cummins misconstrued the statute; subsection 1(d) of
S. 8148 was properly interpreted to mean that "information" referred only to
matters that originated with the Government, with the retention offense
understood to further the Government's interest in custody of its own papers.
Reading section 1(d) in connection with the proposed section 6 makes this
clear.ns The problem was, however, that 1(d) was poorly drafted in that it
treated the two offenses-communication and retention in the face of demand
-in a single sentence. Our hypothesis is that rather than split the two
offenses to vary slightly the matters covered depending on whether communica-
tion or retention was at stake, the committee obliged Cummins by simply
dropping "information" for both offenses. That simplistic course was regret-
table on two grounds. First, no affirmation was made that the items covered
by section 1(d) were Government documents, and second, the issue of
coverage posed by the statute's language was transferred from the retention
offense to the communication offense. After the amendments were adopted,
was divulging the information contained in a document an offense, or was
transferring the actual document or an exact replica of it the only conduct
which violated the section ? From both the remarks of Senator Overman at
212. 55 Corm. Rsc. 3605 (1917).
213. That section 1(d) was taken from clauses 4 and 5 of the 1911 act also supports
this construction.
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the time of amendment 214 and other scattered comments 215 we think it rea-
sonably clear that revelation of the contents of a document was understood
to be an offense.
The more difficult tasks in appraising the effect of S. 2 on subsection 1(d)
concern, first, the inferences to be drawn from rejection of the censorship
provision, and second, the Senate's understanding of "entitlement to receive"
as used in 1(d) once that term was deleted from section 1(a) by substituting
a culpability requirement for it.
We have earlier set forth the legislative materials pertaining to the re-
jection of the proposed section 2(c).216 The Senate, which had passed 2(c) of
S. 8148 without much concern, was subsequently bombarded with newspaper-
inspired protests, including a petition signed by a million citizens.217 Appar-
ently this intense pressure and misgivings of many Senators on grounds of
principle, motivated efforts. to limit 2(c).218 Every new try came up against
the same fundamental problem: no matter how they couched 2(c) with
provisos to protect the right to criticize the Government, the possibility
remained that it would provide a basis for suppressing vigorous, and useful,
criticism of the war effort. Faced with this dilemma, the Senate chose to risk
free speech.
What effect should that decision have upon understanding section 1(d),
which, like 2 (c), was intended by the Administration to be a broad prohibition?
Nothing in the S. 8148 debates suggested narrow meanings for 1(d) ; to the
contrary, the Senators who spoke construed it more broadly than even the
Executive had intended. Reintroduced in nearly the same language in S. 2, it
never received further clarification. It may therefore be argued that the rejec-
tion of 2(c) should not affect the interpretation of 1(d) . Section 2(c) was
broader than 1(d) in that the former barred publications within the scope of
214. The following exchange occurred:
MR. POMEaENE. I am very clearly of the opinion that if a man had information
which he had gleaned from some document or record which might be of value to
an enemy and it was given to the enemy he ought to be penalized for it.
MR. OVERMAN. If the Senator will read paragraph (d), with reference to papers,
signal books, photographs, photographic negatives. and so forth, he will see that
there is no occasion for these words here. That covers information.
MR. POMERENE. I realize that, but it seems to me it ought to be more compre-
hensive. and it would not be wrong to have the words retained. If, however, it is
provided for in another portion of the bill I have no objection.
55 CoNG. REC. 778 (1917).
215. See, e.g., 55 CONC. Rec. 792 (1917) (remarks of Sen. Cummins) (in response to
a newspaper article reporting an Admiral's protests that defense contractors "divulge the
c
11 ontents of plans given to them for estimating purposes," Cummins said 1(d) covers
precisely" the case.). 55 CONG. REc. 2064 (1917) (remarks of Senator Sterling) (1(d)
covers "contents"). Whether the Justice Department realized this is problematic. See text
accompanying note 269 infra.
216. See text following note 51 supra.
217. Surprisingly, many newspapers were willing to endorse limited censorship. For
text of the New York Newspapers proposal sec 55 CONG. Rec. 788 (1917).
218. Compare the breadth of section 2(c) as initially proposed, see text accompanying
note 42 supra, with its scope as last urged by the conference, see note 78 supra.
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whatever regulations were issued, regardless of whether the Government was
the source of the information. Section 1(d) by contrast was concerned only
with government documents, although some Senators appeared to be confused
on the point.219 Consequently, rejection of 2(c) does not logically mandate
imputation of altered understanding about the scope of 1(d). Nonetheless, it
is unrealistic to assume that the Senate rejected 2(c) but still intended to
permit prosecution for publishing material that emanates from a government
official. The Senate realized that newspapers, especially in wartime, get most
of their information about government from people who are in government.=
The examples that were given in the debate are instructive. Proponents
of section 2(c) argued that free speech was sufficiently safeguarded by the
proviso protecting "criticism" of the conduct of the war. Opponents protested
that criticism was impossible unless grounded on revelation of information
with some potential for injurious use. The most prominent example of vig-
orous criticism that the Senate considered was Lord Northcliffe's revela-
tion, in the London Times, that British soldiers were being killed because of
shoddy munitions.221 Lord Northcliffe's information came from British military
sources; read literally, section 1(d) would have authorized punishment of
American officials had they revealed comparable information to newspapers-
at least if the information had been derived from documentary sources ; it
might also have provided authority for punishing the newspaper (if com-
municating comprehends publishing) and newspaper reporters for their com-
munications leading up to publication. Whether the Senate understood that
section 1(d) might be applied to the divulging government employee is
unclear, since no one interjected 1(d) into the discussion at that point. In
view of the praise accorded Lord Northcliffe, it is certain, however, that the
Senate intended, by voting against 2(c), not to make criminal a newspaper's
or newspaper reporter's obtaining or revelation of such information.
We have also noted Senator Walsh's reading into the record a newspaper
article concerning the emplacement of a submarine net in New York harbor.222
Although there was some indication that the Government might earlier have
Z19. See note 214 supra,
220. See, e.g., 55 CONG. Rsc. 2122 (1917) (remarks of Sen. Borah) ("These facts
with reference to the movements of troops, and so forth, are in the hands of officers in
the first instance, and must come from them."). -
Whether section 1(d) was understood at that point in the debate to make disclosure
by government employees criminal is not clear. Senator Overman sought to add an anti-
disclosure provision to the bill which ~i-ould clearly have made revelations in violation of
Presidential orders criminal. It was rejected 55 CoNG. REC. 2265 (1917). The proposal
is set out at note 73 supra.
221. Lord Northcliffe's vigorous denunciation of British conduct of the war, in
disregard of censorship policies, led to substantial reforms. Congress consistently referred
to it as the sort of journalism they did not wish to impede. See, e.g., 54 CoNG. Rec. 3607
(1917) (Remarks of Sen.-Cummins.) . 55 id. at 780-781 (Sens. Walsh and Lodge) ; 55 id.
at 2121 (Sen. Borah.).
222. 55 CONG. Rsc. 2073 (1917). See text at note 69 supra.
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leaked this story in testimony before Congress,= the Senate addressed the
issue in terms of whether this sort of story should be suppressed. It was
apparent, and indeed expressly recognized, that the likely source of such
stories would be Government officials.22* Nonetheless, the Senate chose not to
criminalize such newspaper disclosures. This unwillingness did not, in our
view, stem directly from according a special value to "publishing" not shared
by communicating information generally. To the contrary, the Senate generally
was more concerned for the ordinary citizen than the newspapers, and had
indeed earlier dropped "communicate" from 2(c) on that ground.223 Rather,
the rejection was premised on the judgment that the consequences of authoriz-
ing suppression of discussion were more serious than the likely military
benefits.
To be sure, insofar as section 1(d) prohibited only the divulgence of
documents and other tangible materials, one may say that the Senate's unwill-
ingness to make disclosure criminal did not extend to circumstances where
the secrecy of government documents was compromised. That assumes, how-
ever, far greater technical understanding of the Bill than anything in the
debates reveals. Thus, our conclusion is that rejection of section 2(c) neces-
sarily implies that section 1(d) was thought to be limited to, at most,
revelations by persons officially entrusted with Government documents. The
spread of section 1(d) suggested by its language "lawful or unlawful
possession," and supported by earlier debate, found no support. at the last
moment.
It is much more difficult to reach firm conclusions on the intended
technical meaning of "entitled to receive it." When S. 2 was introduced in the
Senate by Senator Overman for the Judiciary Committee, he offered amend-
ments that added the "intent or reason to believe" standard to sections 1(a)
and 1(b), replacing the "to which he is not lawfully entitled" formulation of
1(a). Thus, the "not entitled to receive" standard survived only in section
1(d) . The committee unfortunately presented no report, and Overman offered
no explanation of why the committee chose to retain the phrase in light of the
difficulties it had caused during the earlier debate, or what it was to mean.
There are two plausible explanations other than inadvertence. The
Judiciary Committee may have preserved the "entitled to receive" language in
section 1(d) because it was thought to present fewer problems in that context
than had the same language in section 1(a) . Such a belief might have been
grounded upon section 6's provision of an orderly process of executive regula-
tion for ascertaining who was "not entitled" to receive restricted documents
223. Id. at 2114 (Remarks of Sen. Underwood).
224. Id. at 2115 (Remarks of Sen. Smith).
225. Id. at 873.
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and information for the purposes of l (d). An alternative, but equally sig-
nificant, explanation is that the Judiciary Committee may have thought that
1(d)'s application was limited to the "first" divulgence of matter by a Govern-
ment employee or other person entrusted with documents by the government,
and that it did not create liability for an endless chain of subsequent trans-
mittals. Although nothing we have found bears directly upon the subje.t, that
committee members such as Cummins, who made deletion of the "entitlement"
language their cause celebre in the S. 8148 debates, said not a word about its
preservation in section 1(d) of S. 2, implies to us that at that point they either
deemed section 1(d) to be of limited scope or thought that the vagueness of
"entitlement" was cured by section 6.
3. X.R. 291. The House debates on H.R. 291's equivalent to section 1(d)
are, by contrast to the Senate proceedings, a model of clarity. The House
Judiciary Committee carefully assembled the various proposals and did its
homework, perhaps prompted by the growing chorus of newspaper disapproval
of the action taken in the Senate on S. 8148. Although highly ambiguous at
points, H.R. 291 was nonetheless reasonably well drafted. Moreover, and
again in contrast to the situation in the Senate, its sponsor on the floor,
Chairman Webb, understood the legislation he was proferring. Debaters who
simply misunderstood the Bill were corrected, rather than being met with
irrelevancies or claims that prosecutorial discretion cures all flaws in the
drafting of criminal prohibitions.
Section 3 of H.R. 291 provided:
Whoever, having possession of, access to, control over, or being
entrusted with any information, document, writing, code book, signal
book, sketch, photograph, photographic negative, blue print, plan,
model, instrument, appliance, or note, belonging to, intended for, or
under the control of the United States, relating to the national
defense, willfully and without proper authority communicates or
transmits or attempts to communicate or transmit the same to any
person, or willfully retains the same and fails to deliver it on demand
to the person lawfully entitled to receive it, or through gross
negligence permits the same to be removed from its proper place of
custody, or delivered to anyone not lawfully entitled- to receive it, or
to be lost, stolen, abstracted, or destroyed, shall, upon conviction
thereof, be punished by a fine of not more than $10,000 or by im-
prisonment for not more than five Years, or both .226
The prohibition explicitly pertained only to government documents and
information, a point that had caused confusion in the Senate. Furthermore,
the language and structure of the section, linking unauthorized divulgence
with grossly negligent loss, emphasized its preeminent concern ??^+;i the
conduct of government employees. The House Report accompanying the legis-
lation made that focus clear:
226. Section 3 is set out in H.R. REP. No. 30, 65th Cong. 1st Sess. 2 (1917).
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Section 3 ... punishes an officer or trustee of our national defense
secrets who willfully communicates such secrets to a person not
lawfully entitled to receive them and punishes such person if he
through gross negligence permits any document, etc., to be lost or
stolen, etc.227
Unfortunately, one crucial ambiguity was unresolved. Could someone
other than a government employee or person entrusted with information violate
the law? If a government employee violated the law by telling an ordinary
citizen a secret without authority, did the citizen violate the law if he told it to
another? On the one hand, the use of the language "without proper authority"
suggests that a person must be one who is subject to authority-normally a
person who agrees to abide by certain rules. We drew that inference in con-
nection with the 1911 law.m On the other hand, section 3, in contrast to the
1911 statute, was expressly limited to matters that were, in a sense, the Gov-
ernment's. Given the explicitly limited coverage of section 3, the argument is
better that the absence of authority means the absence of permission.
The only direct evidence pertaining to the question to be found in the
House debate is ambiguous. Before turning to it, two passing remarks should
be noted. Congressman Walsh, an opponent of section 4, the House equivalent
of section 2(c), was asked whetheT there should not be some basis for protect-
ing government secrets. His response was curious:
ML WA sH. Information of that character is in the custody of
some one, and the President can absolutely prohibit its being im-
parted to anyone else.
Ms. PLwrr. But suppose some one gets it and publishes it. He
can not punish him.
Mx. WALSH. He can punish the person who imparted the infor-
mation, and under another section the person making it public can
be also heavily punished.2-9
Apparently, Walsh thought that section 3 was not the basis for punishing a
person who passed secrets. The problem is what other section he had in mind,
in light of his firm opposition to the censorship provision. Other than sections
3 and 4, there were no sanctions that did not require some added culpability.
Shortly thereafter, Congressman Volstead took the floor and summarized the
legislation. -
The third section prohibits officers, employees, and other people
intrusted with information from divulging that information. It is
perhaps a little broader than that, but that is the general purpose of
the section.23?
Was it a "little broader" in that it prohibited citizens from communicating
matters that had been wrongfully divulged?
227. Id. at 10.
228. See text accompanying note 185 supra.
229. 55 CONG. Rzc. 1603 (1917).
230. Id. at 1605 (1917).
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The discussion directly on point occurred in the course of debates on an
amendment proferred by Congressman Graham. He construed section 3 as a
breach of trust provision only. To make that understanding clear, he urged
amending section 3 to read:
Whoever, having possession of, access to, or control over any
document, writing, code book, signal book, etc., under the control
of the United States relating to the national defense, or being in-
trusted by any such person with any information relating to the
national defense, willfully and without proper authority communi-
cates.231
In support of the amendment, which transposed the positioning of the word
"information," he stated:
It is capable of a double interpretation, and I think both are there
included. A man might be in possession of information. As was sug-
gested by my colleague, he might receive a letter from his son in the
naval service, and he would be in possession of information and he
might communicate or mention that to some one else, and therefore
be liable to the penalty provided in this section, whereas the section
was never intended to meet or touch any such innocent performance
as that.23=
In addition, however, Graham recognized that a consequence of his amendment
would be to remove from the coverage of the statute instances where a military
officer transmitted "information" that was not derived from secret documents
(for example, personal observations.) Graham approved that result on the
ground that "this is a breach of trust section, and on that ground alone it
should be interpreted. Now, if a military officer gives information to somebody
else, we turn to the prior section to find the bases for punishing him if it has
been done with a guilty intent and knowledge."2U
The House rejected the proposed amendment at the urging of Congress-
man Walsh:
The only effect of inserting that in there, in my opinion, would be
to get this section all balled up. The intention is that whoever has
possession of this information, or whoever is intrusted with it, shall
be punished. Now, you put the intrusting clause as applied only to the
information and not to the other matters set out in the section, and we
will not be able to punish anybody who has possession of this infor-
mation, whether he gets it rightfully or wrongfully. The language
reads "whoever is intrusted with information, code book," and so
forth. To transfer it ' after the word "defense" does not change the
effect of the section or what we are seeking to punish, except to
weaken the section. 234
231. 55 Conc. REC. 1759-60 (1917).
232. Id. at 1760.
233. Id.
234. Id.
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Walsh's comment can be taken in either of two ways. On the one hand, read in
connection with his earlier remark about coverage of the person who relayed
secrets and assuming he mispoke in identifying the section pursuant to which
punishment was authorized, his comment indicates an understanding that
section 3 reached non-employees who pass on secrets. On the other hand, he
may merely have been opposed to immunizing the military or other official
who passes on secrets and whose knowledge of them is not derived from docu-
ments.
The issue of breadth of coverage was never firmly settled. In our judg-
ment, however, the latter explanation is the more plausible one to impute
to the House as a whole.
4. The Conference. The Senate bill was made the basis for reconciling the
different bills passed by the House and Senate. Thus, the Senate quite
naturally accepted the conference report without further debate on 1(d).
Oddly enough, the House also accepted section 1(d) of S. 2 without debate.
Either no one in the House noticed 1(d)'s more sweeping application to
persons "lawfully or unlawfully" in possession of defense documents (with
no specification that the documents belong to the Government) or else they
thought the change in language insignificant. Probably the failure is due to
the statement in the conference. report to the House that no "material change"
from the House provisions was effected in the conference bill.ema No suggestion
was made that 1(d) differed from section 3 of H.R. 291 in covering more than
persons who had governmentally-bestowed custody of certain defense-related
materials. In our view, the conference's assertion strengthens the inference that
at this point the Senate also considered section 1(d), despite its language, to
be a provision of very limited scope.
The conferees, sub silento, did make one momentous alteration in S. 2:
they deleted much of section 6. The President was not authorized to designate
protected information which only duly authorized persons might receive. The
conferees' reasons for taking this step are entirely obscure, and the action
was not even mentioned in the conference report or on the floor of either
chamber. Our speculation is that the decision to eliminate section 6 was tied to
the effort to secure passage of a general prohibition on publication. Broad
delegations to the President had been one of the principal objections to
sections 4 and 2(c), and although section 6 was not directly tied to the censor-
ship issue, it was an extremely broad delegation. To sweeten the "publication"
pill, particularly in the House, this executive power was deleted.
Whatever the reasons for dropping section 6, however, the consequence is
to raise serious issues of whether section 1(d) was, and current subsections
793(d) and (e) are, enforceable criminal laws. We shall postpone extended
235. 55 CONG. REC. 3301, 3306 (1917).
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consideration until after surveying the extraordinary confusion that permeated
the 1950 amendment. For now it suffices to ask by what authority is entitle-
ment to receive information to be ascertained, since the provision that was
designed to answer that question was struck from the Espionage Act?
5. Epilogue to Section 1(d). Whatever the doubts about the intent of
Congress in passing section 1(d) of the Espionage Act, one point of subsequent
history is plain. Congress and the Executive operated for the next thirty-three
years on the assumption that 1(d) did not effectively criminalize the non-
culpable publication or other revelation of information relating to national
security. Three statutes were passed in those years prohibiting publication of
discrete categories of highly sensitive information, without regard to anti-
American or pro-foreign intent.56 No one ever suggested in connection with
these later statutes that section 1(d) already covered the matter. We shall
discuss these provisions in detail in a later section, but a brief preview is in
order now, while our focus is on the meaning of section 1(d).
Section 952 of Title 18, enacted in 1933, dealt in a purposefully narrow
way with the pervasive problem of the former official who discloses sensitive
information in his memoirs. Congress was moved to act by a notorious little
book about the State Department's intercepting and breaking the diplomatic
dispatches of a then friendly foreign nation. The result was a limited prohibition
barring government employees from publishing any foreign code or anything
transmitted in such a code. The absence of reference to section 1(d) in the
debates on section 952 suggests that the 1917 provision was not thought to deal
with publication, even by government employees retailing official information.
Although there might at the time have been some question whether such codes
"relate to the national defense," they would seem clearly to fall within the
Gorin definition.
In 1938, the complementary sections 795 and 797 of Title 18 were enacted
to prohibit the taking and disseminating-including publishing-of photo-
graphs of military installations and equipment designated by the President.
The third statute was enacted in 1950, when section 798 of Title 18 was adopted
to prohibit the communication and publication of classified information about
our cryptographic operations. The House Report expressly stated that prior
law made such revelations criminal only when done with intent to injure
the United States. As originally proposed, section 798 would have barred
revelation of all defense information obtained from official sources, but con-
gressional opposition cut down the scope of the bill to cover only the narrow
category of communications intelligence information.
The passage of these statutes, particularly the crvptogrraphy bill where
defense-relatedness cannot be doubted. is strong evidence that no part of the
236. The statutes passed after 1917 bearing on publication of defense information are
discussed at text following note 354 infra.
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1917 Act, including section 1(d), was thought to cover publication by citi-
zens or former government employees. Accordingly, the subsequent statutory
history is strong support for a narrow understanding of section 1(d). No
evidence emerges from the later record as to what precise narrow reading
was assumed however, and thus the mystery of section 1(d) is not resolved.
D. The 1950 Act
Congress last amended the Espionage Act in 1950.237 At that time three
deceptively simple steps were taken to create the present subsections 793(d)
and (e). First, section 1(d) of the 1917 law was split into two parts, the new
subsection (e) to cover people not connected with the Government (unautho-
rized possessors). The purpose of the distinction was to oblige the ordinary
citizen to return defense information to the Government without the need for
an official demand. Second, Congress added to the list of covered material
"information" which, in contrast to the enumerated tangible items, is subject
to the prohibitions on communication and retention only when "the possessor
has reason to believe [the information] could be used to the injury of the
United States or to the advantage of a foreign nation." Third, causing or
attempting to cause the commission of either offense was made a violation of
the subsections.
In the course of enacting these amendments, Congress compounded the
confusion surrounding the earlier versions of 793(d) and (e). It was over-
looked that the communication offenses in the 1917 law were probably intended
and had consistently been construed to apply, at most, only to government
employees. Futhermore, in an amazing oversight, Congress imposed no overall
culpability requirement in 793(e), although the most complete committee
explanation of the bill logically called for one. The meaning of "willfully"-the
subsections' only general culpability requirement-was, by and large, ignored.
Where its meaning was considered, the views stated were generally either
self-contradictory or supported by reasoning so preposterous as to subvert
any claim to interpretive authority. The meaning of the specific culpability
requirement for "information" was left obtuse ; moreover, the inclusion of
information in the retention offenses presumably makes it criminal to retain
one's memories. The "entitlement" concept, once again, was uncritically
brought forward from the previous statute as the central element in the
offenses, without attention to what meaning it has in the absence of express
statutory authorization for some defining and implementing procedure. In
addition, although everyone proceeded on the assumption that the tangible
items and "information" protected by the statutes must belong to the Govern-
ment, the statutory language does not require it. What constitutes "informa-
237. 64 S tat. 1003 (1950).
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1022 COLUMBIA LAW REVIEW (Vol. 73:929
tion" under the subsections was left unclear ; nothing in the legislative record
indicates whether "information" comprises only oral reports about the tangible
items protected, or includes all knowledge of defense matters. Finally, nothing
was said about the scope of the "causing" offense. The law's prohibition on
"causing" a communication would therefore seem to include a newsman's
inquiry about defense matters he knows to be secret.
Thus, review of the 1950 legislative record shows that for the third time in
as many attempts, Congress had virtually no understanding of the language and
effect of 793(d) and (e). The confusion can be explained only by a congres-
sional preoccupation with proposals having nothing to do with the communica-
tion and retention of defense materials and information. Subsections 793(d)
and (e) were tucked away among the many provisions of the Internal Security
Act of 1950, a massive effort to deal with what was then perceived to be the
serious threat of domestic communism.238 Most of the legislative concern was
directed to the Act's registration,239 public employment,240 and criminal con-
spiracy sections,241 provisions that had nothing to do with 793(d) and (e).
The revision of section 1(d) was prompted by the recommendations of
an executive department study group, the Interdepartmental Intelligence
Committee, composed of representatives of the Justice Department, Army
Intelligence and the C.I.A. To implement its recommendations, two bills,
S. 595 and H.R. 4703, were submitted by the Attorney General.242 Both bills
contained the three important changes in section 1(d) that ' were previously
described, and both bills were reported out by the respective judiciary Com-
mittees in May, 1949.
Because the floor debates did not pay significant attention to the revision
of 793(d) and (e), the Senate and House committee reports provide the
principal guidance as to what each chamber intended. Guidance is limited,
however, as both reports drew heavily upon the Attorney General's letter
which accompanied the drafts prepared in the Executive department. More-
over, the reports justified the need for dividing section 1(d) into parts by
reference only to the retention offense ; no thought was given to the effect of
the division on the communication offenses.
In the Senate report, it was stated that conditioning the criminality of
retention upon demand, as section 1(d) had done, was pointless where posses-
sion was unauthorized, since the Government does not know whom to ask.243
238. Id. at 987.
239. Id. at 993.
240. Id. at 992.
241. Id. at 991.
242. The Attorney General's submission letter to Senator McCarran appears at 95
CONG. Rec. 441-42. S. 595 as introduced by Senator McCarran is set out, id. at 440. See
also the gratuitous legislative recommendations of a federal grand jury in New York.
Id. at 6590-91.
243. S. REP. No. 427, 80th Cong., 1st Sess. 7 (1949).
I
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The dangers inherent in such unauthorized possession were deemed self-
evident. The report left open important questions concerning the breadth of
the term "information" and the meaning of the qualifying "reason to believe"
phrase. It is silent as to whether "information" was intended to be independent
of documents and other specified tangible items protected against communica-
tion, or whether it was included simply to make clear that oral revelation of
the contents of a protected document was criminal. The "reason to believe"
phrase presents a more subtle ambiguity. The report states expressly that the
phrase modifies only "information" and not the other enumerated items, such
as documents and notes.244 As proposed by the Attorney General, the statute
would have prohibited the transfer of "information which could be used,"
etc. The Senate committee amended this to read, as in the current law, "in-
formation which the possessor has reason to believe could be used," etc. The
purpose of the amendment, the report states, "is to require some degree of
scienter in order to constitute a violation of the subsection insofar as the
unlawful transmission of `information' is concerned."245 Unfortunately, that
comment still leaves unclear what sort of scienter is required. Does the "reason
to believe" phrase simply describe the "quality" of information, any transfer
of which is criminal regardless of probable effect, or does it instead look to
the actor's awareness of possible consequences of a particular communication?
The use of the word "could" in 793(d) and (e), in contrast to the language
"is to be used" in the culpability formulations of 793(a) and (b), seems to
indicate that the actor need only be aware of the general quality of the informa-
tion in order to make divulgences criminal. Yet the Committee's statement
that the language requires "some degree of scienter" would normally refer to a
mental state with respect to the particular activity-communication or re-
tention-covered by the statute.
If the Senate Report is inexplicit on these issues, the House Report on
H.R. 4703 is inexplicable.246 The House Report, like that of the Senate, was
preoccupied with retention of government papers. That subsection 793(d)
and (e) would bar an unspecified range of communications was not adverted
to. Moreover, the report indicates how confused the House Judiciary Com-
mittee was on vital questions concerning the culpability requirement made a
condition of the various offenses:
Subsection 1 (d) [793(d) ] provides that those having lawful
possession of the items described therein relating to the national
defense who willfully communicate or cause to be communicated, or
attempt to communicate them to an unauthorized person, or who
willfully fail to deliver them to an authorized person on demand,
shall be guilty of a crime: No showing of intent is necessary as an
244. Id. at 4.
245. Id.
246. H.R. REP. No. 647, 81st Cong., 1st Sess. (1949).
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element of the offense, provided the possessor has reason to believe
that the material communicated could be used to the detriment of the
United States or to the advantage of a foreign nation. The absence of
a requirement for intent is justified, it is believed, in contrast to the
express requirement of intent in subsections I (a), 1 (b) and 1 (c),
in view of the fact that subsection I (d) deals with persons presum-
ably in closer relationship to the Government which they seek to
betray.
Subsection I (e) [793(e)] provides separately for those who,
having unauthorized possession of certain enumerated classes of
items, refuse to surrender them to authorized officials regardless of a
demand being made. Existing law provides no penalty for the un-
authorized possession of such items unless a demand for them is
made by a person entitled to receive them: Thus subsection 1 (e)
differs from subsection 1 (d) primarily in that a demand for return
is a necessary element in making out a case in the latter instance,
while it is not required in the former. The term "unauthorized pos-
session" is used deliberately in preference to "unlawful possession,"
so as to preclude the necessity for proof of illegal possession.24'
The Committee clearly understood the term "willfully" to require no
specific intent to do injury to the United States or to aid a foreign nation.
That result was justified, the report reasoned, because "[793(d)] deals with
persons presumably in closer relationship to the Government." But by parity
of reasoning, section 793(e), which applies to ordinary citizens, should be
limited by a more extensive culpability requirement than mere willfulness.
The report fails, however, even to mention -the culpability question in its dis-
cussion of 793(e).
The report is also confused as to the meaning of the "reason to believe"
phrase. In discussing the addition of "information," it states:
In answer to the possible objection that this category [information]
is too broad and vague, it is pointed out that the phrase is qualified
by "which information the possessor has reason to believe could be
used to the injury of the United States or to the advantage of any
foreign nation," which are words of limitation subject to definition
by the courts in each particular instance. No less a term than that
would be sufficient to protect the security of matters which the bill
might fail to particularize. The qualification is not intended to qualify
other items enumerated in the subsections-248
Like its Senate counterpart, the House committee was not clear about
whether the "reason to believe" phrase is merely descriptive of the -general
quality of information, or whether it looks to the consequences of a particular
communication or retention. Whatever the meaning of the phrase, it is clear
in the preceding quotation that it refers only to information and not to the
enumerated tangible items. The problem, however, is how to reconcile that
statement with one quoted earlier: "[n]o showing of intent is necessary as an
247. Id. at 3-4.
248. Id. at 4.
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element of the offense, provided the possessor has reason to believe that the
material communicated could be used to the detriment of the United States
or to the advantage of a foreign nation." Either the author of the report slipped
at that point and wrote "material" when he meant "information," or he read
"willful" to require generally, as to both enumerated items and information,
that the actor be aware of potential adverse consequences flowing from their
revelation. If the latter was the case, it is an open question as to what is added
by the special culpability requirement for information.
In the Senate, after the report on S. 595 had been issued but prior to
the floor debate, several important letters pertinent to 793(d) and (e) were
exchanged and entered in the Congressional Record by Senator McCarran,
the sponsor of the bill. Senator Kilgore, a member of the judiciary Committee
and a staunch opponent of the Internal Security Act, wrote to Senator Mc-
Carran of his concern that "at least theoretically [S. 5951 . . . might make
practically every newspaper in the United States and all the publishers, editors,
and reporters into criminals without their doing any wrongful act."249 It
seems clear that Kilgore was referring to the proposed section 793, although
he did not expand on his statement in his letter. The remainder of S. 595
dealt with registration of foreign agents, protection of military places from
destruction, and extensions of the statute of limitations for Espionage Act
offenses. None of these are conceivable grounds for Kilgore's concern. Mc-
Carran replied that "any suggestion of such a threat naturally concerns me
greatly," and referred Kilgore's letter to Attorney General Clark, to the
Legislative Reference Service of the Library of Congress, and to an eminent
private lawyer.250
The response of the Legislative Reference Service focused on the cul-
pability requirements of the proposed section 793 and rebutted Senator Kit-
gore's assertions that criminality might occur without a "wrongful act." After
an analysis that is a model of fallacious reasoning, the Service concluded:
It seems clear, therefore, that none of the crimes stated in sub-
sections (a)-(f) of proposed section 793 could be charged against
newspapers or publishers, or the editors or employees thereof, where
they were acting in the normal course of their duties and without the
wrongful intent or reason to believe, or knowledge, as required under
the statute.251 -
This conclusion was generally correct with respect to the proposed 793 (a)
and (b). Subsection 793(a), virtually a reenactment of section 1(a) of the
1917 Act, required both a purpose to obtain defense information and an intent
or reason to believe that the information is to be used to the injury of the
249. Senator Kilgore's letter appears at 95 CONG. REc. 9747 (1949).
250. Id.
251. Id. at 9748.
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United States or to the advantage of any foreign nation. Section 793(b)
required "the purpose aforesaid, and ... like intent or reason to believe." As
we have shown, the Service was correct in regarding this culpability language
as rendering these subsections inapplicable to conduct related to participation
in public debate. But the Service's memorandum dealt with matters more
problematic when it moved to subsections (d) and (e). The memorandum
asserts that they are comparable to subsections (a) and (b), apparently read-
ing the culpability phrase in (d) and (e), which, as a matter of syntax and
congressional intent modified only "information," as if it were applicable to
all the offenses. Indeed, the memorandum points out that the word willfully is
used "in addition." Thus, the Service considered the culpability require-
ments of (d) and (e) to be, if anything, more stringent than those spelled out
in (a) and (b). This reading of the statutory language is remarkable and
indubitably wrong. Nevertheless, the conclusion was announced that news-
papers would not have to worry about 793 as long as they did not act with
"wrongful intent or reason to believe, or knowledge as required under the
statute."2
The second of Senator McCarran's respondents, Attorney General Clark,
avoided, by general assertions, the pitfalls of trying to reason closely about the
793 provisions:
The history and application of the existing espionage- statutes which
this bill would amend only in part, and the language, history, hear-
ings, and report of the committee relative to this bill, together with
the integrity of the three branches of the Government which enact,
enforce, and apply the law, would indicate that nobody other than a
spy, saboteur, or other person who would weaken the internal se-
curity of the Nation need have any fear of prosecution under either
existing law or the provisions of this bill. 2U
Since publication of defense information can be considered to "weaken
the internal security of the Nation," the Attorney General said nothing that
would alleviate Senator Kilgore's concern that newspapers would be covered
by the new 793 provisions. Nevertheless, the overall tone of the Attorney
General's response suggests that he understood the scope of the statute to be
in some way limited.
The third correspondent, Elisha Hanson, an attorney, did not analyze
Senator Kilgore's charges directly. Instead, he urged that Senator McCarran
reinsert into S. 595 a provision to clarify that no censorship or infringement
of first amendment rights was contemplated .:-'34 Such a provision had been part
of McCarran's original S. 595, included at the suggestion of counsel for the
252. Id.
253. Id. at 9749.
254. Id. at 9748-49.
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American Newspaper Publishers Association,288 but had been deleted by the
committee as superfluous.258 This provision, as finally enacted, stated:
Nothing in this Act shall be construed to authorize, require, or estab-
lish military or civilian censorship or in any way to limit or infringe
upon freedom of the press or of speech as guaranteed by the Con-
stitution of the United States and no regulation shall be promulgated
hereunder having that effect.28T
Disagreeing with the decision to delete the provision, Mr. Hanson urged that
its inclusion would "serve to limit overzealous administration."258 Moreover,
after noting that the United States had survived World War II without cen-
sorship, he wrote, prophetically, "there should be no occasion in time of peace
for Congress to enact legislation which might be construed by an overzealous
official as authority to restrict the free flow of information of vital importance
to the American people."28o
Senator McCarran sent this correspondence to Senator Kilgore, indicat-
ing his belief that with the anti-censorship provision reinserted, "the bill will
be wholly acceptable."260 He also published the underlying correspondence in
the Congressional Record and urged his colleagues to "study the issues in-
volved."261 On July 20, 1949, he submitted an amendment explaining that,
"regardless of whether such a provision is necessary, its inclusion in the bill
would be a salutary thing."= With this genesis, the anti-censorship provision
became a part of the Internal Security Act.
justice Douglas used this provision to bolster his conclusion in New York
Times Co. v. United States that the espionage statutes did not prohibit the
publication of the Pentagon Papers. He quoted the provision as elucidating
the meaning of section 793, and concluded "[t]hus, Congress has been faithful
to the command of the First Amendment in this area."263 On its face, the
proviso does nothing more than state that the 1950 Act ought not to be
construed to impose censorship or violate the first amendment. This might
mean only that no system of prior restraint was authorized, or that, in general,
the prohibitions on communication of defense information should not be ap-
plied to particular revelations of great public importance and little defense
255. 96 Coxc. Rsc. 15185 (1950).
256. S. Rsr. No. 427, 80th Conga. 1st Sess. 6 (1949) (referring to section 8 of the
bill as introduced).
257. This provision began as section 8 of S. 595, id. at 441, and eventually became
the opening substantive provision of the Internal Security Act of 1950, 64 Stat. 987
(1950). The slight difference in language in the provision as adopted reflected one of
Mr. Hanson's suggestions.
258. 95 CoNG. REC. 9749 (1949).
259. Id.
260. Id. at 9750.
261. Id. at 9747.
262. Id. at 9746.
263. 403 U.S. 713, 722.
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significance. Whether the Senate perceived the proviso to be linked to a
restricted meaning of 793(d) and (e) is open to question.
There was no explanation of the anti-censorship provision in any of the
subsequent committee reports on the many bills that ultimately were coalesced
into the Internal Security Act.2s* Furthermore, none of the floor debates
mentions the anti-censorship provision in connection with section 793. Indeed,
none of the first amendment concerns expressed in the floor debates were
directed to section 793. Rather, criticisms concerned the controversial provi-
sions of the 1950 Act, such as those that made it unlawful to conspire to estab-
lish a totalitarian dictatorship in the United States, the broad registration
requirements, and the powers of the Subversive Activities Control Board.
Senator McCarran, however, plainly viewed the anti-censorship proviso
as a corrective for what he saw as erroneous readings of 793(d) and (e).
Moreover, the very fact that nothing further was said about the threat that
793(d) and (e) might pose to a free press may reflect belief that the proviso
eliminated such a danger. Interestingly, for example, Senator Kilgore, joined
by Senators Graham and Langer, dissented from the judiciary Committee's
favorable report of the final Internal Security Act to the floor.20 Their .
minority views carefully reviewed the various provisions of the Act to which
they objected. They expressly approved, however, of the amendments to
793 21e Given Kilgore's ? earlier concern for the rights of newspapers, it seems
a fair assumption that his approval of 793(d) and (e) reflected the belief that
those sections did not threaten publication of defense information, and the free
press proviso may well have been the basis for his change of heart. ,
The floor debates on the revision of subsection 793(d) and (e) were
perfunctory, largely submerged by the more controversial provisions of the
Internal Security Act. A few informative statements were offered, however.
In the debate on S. 595, Whitaker Chambers' activities were described as the
stimulus for 793(e). Senator McCarran, the floor manager of the bill, cited
the pumpkin papers episode as proof of the need to make unauthorized reten-
tion a crime in the absence of demand.267 Since Whitaker Chambers was not
264. The Internal Security Act of 1950 was the product of numerous successive bills
and committee reports, all finally coalesced in H.R. 9490 in the 81st Congress. None of the
subsequent committee reports contain as much discussion as the first reports on S. 595
and H.R. 4703. See, e.g., S. Rap. No. 2369, 81st Cong., 2d Sess. 8-9 (1950): CONF. REP.
No. 3
112, 81st Cong., 2d Sess. 52-53 (1950).
265. S. REP. No.
letter to Sen McCarran, 96 CoNG. CoRng.c. 1d2068-69 part 2 (1950). See also Senator Kilgore's
n,
266. S. Rip. No. 2369, part 2, at 3-4.
267. McCarran's statement about Chambers was as follows:
The next case for remedial attention was the discovery that under existing
law, the unauthorized possession of enumerated restricted items relating to
national defense is not a penal offense unless a demand has been made against the
possessor, by the authorities entitled to receive the items in question, and the
said demand has been refused. The inadequacy of this provision is self-evident,
since. by the very nature of things an unauthorized possession would most likely
not be known to those entitled to receive the restricted enumerated items. The
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a government employee at any time relevant to the pumpkin papers episode,
McCarran's remark demonstrates that 793(e) covers everyone, not just gov-
ernment employees.ase Thus, it is impossible to construe 793(e) to reach only
government servants. Such a construction would obviously strain the statute's
language, but it might nonetheless have been tempting in light of the absence
of a culpability requirement and the narrow intent of the 1917 legislation.
Virtually the only other mention of 793 in the Senate legislative history was
contained in a letter from the Attorney General to the Senate urging enact-
ment of S. 595:
Enactment of this legislation is urgently needed. The necessity
for immediate action on this matter was forcibly-demonstrated during
the recent trial of Alger Hiss. Although Henry Julian Wadleigh
testified under oath that he had illegally abstracted State Department
documents for eventual delivery to a foreign government, existing
laws appear to make his prosecution impossible. Such an incident,
which is only one of several, clearly illustrates the very pressing
need for corrective legislation.2
The House floor debates suffered from the confused reasoning of the House
Judiciary Committee report, which provided the model for the attempts by
Chairman Celler and Congressman Bryson to explain the coverage of 793(d)
and (e). At the outset of debate on H.R. 4703, Celler stated:
[ W] a cannot allow people, citizens and aliens alike, opportunities to
get valuable classified and other information, data, and records vital
to our security and have that information, data, and records used and
disseminated to our grave discomfort and with danger to our secu-
rity. Our laws presently are weak and must be strengthened in that
regard, and that is exactly what this bill purports to do.270
most famous example of this situation is, of course, the Chambers pumpkin papers.
Chambers had in his possession-that is in his unauthorized possession-certain
restricted or classified items which related to national defense. Yet, his possession
of such items was not a crime. He could not be charged with a crime in respect
of his possession of the pumpkin papers until a person entitled to receive those
items made a demand upon him for their delivery, and then only if he refused
the demand.
96 Coxes REC. 14178 (1950).
268. Chambers' account of his activities was that he obtained typewritten copies of
State Department documents from Alger Hiss, among others, which Chambers photo-
stated and then passed along to the couriers of the Communist Party. U.S.A., with
the understanding that the microfilms were destined for Moscow. W. CHAMBERS,
WrrNEss, 27-33, 421-27 (1952). According to Chambers' story, when he decided to break
with the Party in 1937, he retained some of the documents and films as a "life-prejerver"
and hid some of them at his brother-in-law's, and the rest in a hollow pumpkin in his own
garden. Id. at 38-42, 445.
One of the perplexing aspects of the 1950 legislation is that Chambers' own account
of his activities surely brought him within the offense encompassed by section 2(a) of
the Espionage Act of 1917, now subsection 794(a). There could have been no question
that Chambers met the culpability standard characteristic of all the 1917 offenses ap-
plicable to non-employees. It is thus not at all clear why the notorious pumkin papers
episode led Congress to enact in 793(e) a broadly applicable, offense not conditioned on
the characteristic 1917 Act culpability standard.
269. 96 COND. REC. 12069 (1950).
270. Id. at 3404-05.
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This is the only statement in the 1950 legislative record that supports the
inference that subsections 793(d) and (e) are designed to put criminal sanc-
tions behind the classification program. Apart from this interesting remark,
the remainder of the House debates touched on only two aspects of the 793
revision. First, the speakers seem clearly to have understood that the cul-
pability requirement of subsections (d) and (e) were different from the re-
quirements of the preceding subsections. Confusion existed, however, as to
what exactly the culpability standard of (d) and (e) was.nl Second, subsec-
tions (d) and (e) in tandem were thought to cover everyone. Virtually noth-
ing was said in the House about whether this meant that its coverage extended
to newspapers, although Congressman Bryson called attention to "unfounded"
fears that the bill would make newspaper and reporters "criminals" without
their doing any wrongful act, and referred the House to Senator McCarran's
published exchange of correspondence which "answered objections of this
nature."2
What does the legislative history of the 1950 amendments amount to?
Through all the confusion and inattention to basic questions, two general
themes emerge. First, fears that the new subsections 793(d) and (e) might
make criminal actions taken by newspapers in "the normal course of their
operations" were rebutted by, statements by the Attorney General and by the
Legislative Reference Service, neither of which was supported by plausible
interpretation of the statutory language. More important, these fears led to
the re-introduction of the anti-censorship provision, which apparently was
designed to meet concerns about the breadth of the 793 provisions of S. 595.
While a literal interpretation of this proviso may construe it as only a caveat
against prior restraints, its role in the legislative history reflects a broader
purpose. The anti-censorship provision and the interpretations solicited by
Senator McCarran left Congress with an amorphous belief that 793(d) and
(e) were not sweeping prohibitions against newspaper publication of informa-
tion relating to the national defense. No analytical basis for a narrower reading
was suggested, however, and the legislative history thus leaves open the
question of how the statute is to be accommodated to the legislative intention.
The second current running through the 1950 deliberations was the no-
torious activities of Whitaker Chambers, Alger Hiss, and Henry Julian Wad-
leigh. Their revelation and retention of sensitive information were repeatedly
cited as evidence of the necessity of "closing the loopholes" in the espionage
statutes. Thus, the retention offense was extended to non-government em-
ployees, such. as Whitaker Chambers, without necessity for an official demand.
Furthermore, the statute of limitations for all 793 and 794 offenses was ex-
271. See, e.g., the comments of Cong. Tackett, id. at 3408.
272. Id. at 5494.
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tended from three to ten years."' But beyond these two extensions of section
793, it is not at all clear what Congress intended to accomplish through the
communication offenses of subsections (d) and (e). The Attorney General
wrote of the need to reach a State Department employee who abstracted
documents for delivery to a foreign government. Chairman Celler mentioned
that it must be made illegal to obtain and disseminate classified data "to our
grave discomfort and with danger to our security."
No one spoke of the government employee or ordinary citizen who gives
defense information to a newspaper in the belief that the benefits of public
debate on the matter outweigh any danger to national security. The focus,
rather, was on employees who deliver government documents to communist
study groups or Russian agents, and on others who are part of an espionage
apparatus. These activities, however, fit easily into the established culpability
framework of the espionage statutes, in that a purpose to injure the United
States or advantage a foreign country could be inferred. Why, then, do the
communication and retention offenses adopted in 1950 call for a lesser cul-
pability standard that would presumably be met by general publication of
defense information? Furthermore, 793(d) and (e) would appear to reach
retention of defense information by publishers and communication of such
information in the first instance from a source to a newspaper.
The 1950 legislation thus follows the frustrating pattern of so many of
the espionage statutes: Congress said it, but seems not to have meant it. What
are the courts and others concerned with the "interpretation of these statutes
to do?
E. Subsections 793(d) and (e): Conclusion
Cynics have claimed that if courts enforced only those criminal laws which
legislatures understood, Title 18 of the United States Code would be a dead
letter. Although courts should not condition the enforceability of statutes on
legislative prescience about all their possible applications, the problems with
subsections 793(d) and (e), go well beyond tolerable limits. At least five
serious problems of statutory construction must be resolved before these laws
can be applied:
(1) Is publication a "communication" within the meaning of the subsec-
tions, and are communications or retentions incident to publication criminal?
(2) What degree of culpability is required by the term "willfully?" Can
the word be given a meaning narrow enough to sustain the constitutionality of
the prohibitions on communication or retention in light of the vagueness of the
phrase "related to the national defense?"
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(3) What constitutes protected "information" under the subsections,
and what culpability is required before its transfer is criminal?
(4) What makes a piece of paper containing defense information a
"document" or other enumerated item for purposes of the subsections?
(5) What does "not entitled to receive it" mean for purposes of the
communication and retention offenses?
The uninformative language employed by the draftsmen has never been
discussed by Congress in terms precise enough to give adequate guidance for
the resolution of these issues. Perhaps a concrete example will illustrate the
difficulties. Justice White's discussion of the retention offense in his Pentagon
Papers opinion assumes, without discussion, that copies of government papers
are "documents," and not "information," for purposes of the section.n* This
conclusion, however, is not compelled. The originals were not purloined and
the Government's proprietary interest in the documents was maintained ; all
that was lost was the secrecy of information contained in them. Even if an
exact copy is a "document" as justice White suggests, how close to the full origi-
nal must the copy be? Does a letter from a friend in the executive branch that
quotes a single paragraph from a government report constitute a document?
What if the letter only paraphrases the original but reveals the information?
By what principle can a line be drawn between document and information,
especially when significant differences in the culpability requisite to violation
of 793(d) and (e) may turn on the distinction?
Courts typically undertake to resolve issues at the margin of statutory
coverage by looking to a statute's purposes. On their face, however, the pur-
poses of subsections 793(d) and (e) are mysterious because the statutes are
so sweeping as to be absurd. If courts turn to evidences of legislative intent,
the mystery deepens because Congess never understood these laws. It did not
realize that their literal terms might apply to speech leading to public debate,
or preliminary activities undertaken with that aim. When concerns were
voiced that these provisions might have some effect on the press, Congress
did not respond by analysis or amendment of the bills before it, but rather
said it was not so-through the clumsy and problematic anti-censorship pro-
vision--and approved the statute's broad language.
In this concluding discussion of 793(d) and (e), we shall attempt to tie
the materials together and show how forbidding are the problems of im-
plementing these subsections in the context of public speech about defense
matters.
1. Publication and Conduct Incidental Thereto. In the 1917 legislative
record, the question of controls on publication of sensitive information received
at least as much attention as the problem of spying, and the most significant
action was the rejection of a prohibition on publication not conditioned on
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any specific intent requirement.275 The 1950 legislative record was too con-
fused to have had any particular focus, but the notion that somehow news-
papers were not covered-except for "wrongful acts"-was never challenged.
Subsections 793(d) and (e) therefore cannot be held applicable to publication
of defense information that is motivated by the routine desires to initiate
public debate or sell newspapers, unless this congressional purpose, confirmed
by repeated subsequent refusals to enact broad prohibitions on disclosures, is
ignored.n? Failure to give effect to this legislative intention would be wrong
with respect to a statute so inartfully drawn and legislative intention other-
wise so opaque.
The critical question, in our view, is not whether publishing may prop-
erly be held a crime under subsections (d) and (e), for almost surely it should
not. The problem instead concerns the manner in which the statutory language
is to be read to exclude it. The choice is between distinguishing some concept
of "publishing" immune from regulation, or by more general construction of
the statute's culpability standards. Regardless of which approach is taken,
is it only the act of publishing that is protected, or does the law also protect
conduct incidental to publication? Is the newsman guilty of "retaining" items
lie plans to publish? Are his communications to others in the course of writing
a story criminal? Is his source Tn Government an offender, and, if so, is the
newsman a conspirator in that offense or an accomplice to it if he simply
listens, or if he instigates the disclosure? These questions, of course, go to
the heart of whether, as justice White suggested in New York Times, news-
papers may be criminally punished under subsection (e) for obtaining and
printing national defense secrets.
In that litigation, the claim was strongly pressed by the Times that the
statutory terms "communicate, deliver, or transmit" as used in sections 1(d)
and 1(e) do not comprehend "publishing." Judge Gurfein so held in his dis-
trict court opinions and justice Douglas later indicated his support for that
position.278 The argument is that the draftsmen perceived a difference between
communication and publication and that they intended to make newspaper
revelations criminal only when the statutes say "publish." Support for the
proposition rests primarily on the structure of section 2 of the 1917 Act, cur-
rently subsections 794(a) and (b). It will be recalled that 794(a) bars
275. As earlier indicated, we reject as untenable the view tentatively suggested by
Justice White in New York Times v. United States, 403 U.S. 713, 733-40 (1971), that
Congress in 1917 intended to bar prior restraints but allow post-publication prosecutions
for publication. Many in Congress thought that their constitutional power was restricted
to making publication criminal after-the-fact. As the debates became more focussed,
however, the legislative choice was seen to be whether or not to punish.
To be sure, section 1(d) covered tangible items and their contents only, whereas
the rejected censorship provision pertained to information no matter. what its source. But
there is nothing indicating that the 1917 Congress saw this as a key distinction.
276. See text following note 354 infra.
277. United States v. New York Times, 328 F. Supp. 324, 328-29 (S.D.N.Y. 1971).
278. 403 U.S. 713, 721.
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communication, transmittal or delivery of defense information to foreigners,
while 794(b) prohibits both communication and publishing in time of
war with intent to reach the enemy. Moreover, the rejected subsection 2(c)
as initially drafted prohibited both communication and publishing and was
subsequently narrowed, prior to the ultimate defeat, to prohibit only publish-
ing. Two later enacted statutes in the espionage chapter, sections 797 and 798,
also mention publishing.279
The argument that the draftsmen intentionally wrote "publishes" into
the statutes when they wished to prohibit it does not, despite the statutory
structure, convince us. We have not found a single clear statement in the
lengthy legislative history of these bills that the word "communicates" does
not embrace publishing. For example, that was not the ground on which
Senator Kilgore's concern for newspapers was met in 1950;280 nor was it the
apparent understanding of those who framed the crytographic bill, section 798.
If that understanding were clear, one would expect to find unequivocal evi-
dence of it to appear in the massive debates on the 1917 Espionage Act.
Such evidence is lacking. Speakers frequently used the words "communicate
or publish" in sequence ;281 they also consistently used the words "publishes," ?
"publications" and "publishing" when they were referring to newspapers.
Neither usage, however, given that the statute said "publishes," demonstrates
that the speaker regarded the terms "communicate, deliver, or transmit" as
necessarily excluding publishing. Moreover, the few interchanges during the
debates concerning the meaning of "communicates" came primarily from
speakers who questioned the wisdom, whatever was done to newspapers,
of making private communications criminal.282 Most importantly, at no point
279. See text accompanying notes 370, 388 infra.
280. Had any of the respondents to Senator Kilgore's letter believed that publishing
was not covered by sections 1(d) and (e) because pot mentioned, they would surely
have mentioned it.
281. See, e.g., 55 CONG. Rae. 78Y (1917) (Remarks of Senator Cummins).
282. The principal comments in the Senate lire at 55 CoNG. REc. 873 (Remarks of
Senator Overman) (The word publishing is broad enough to cover the word com-
municate. Communication of plans to a person, is a publication to that person) ; 55 CoNG.
Rac. at 877 (1917) (Remarks of Senator Cummins) :
the word "publish" is not confined to the publication by a newspaper. I suppose
that if I stand upon the street and make a statement I publish the statement in
the sense of the law. If this were confined to the newspapers, it would still be
objectionable, but not so objectionable as it is in its present form.
In the House, similar points were made. See, e.g.. the following interchange:
MR. SHERLEY. Now I submit to the gentleman the inquiry as to whether it is
necessary to embrace in your prohibition any sort of communication which-would
embrace a conversation that might not in any way have or be intended to have
anything to do with publication, which is what you are really aiming at.
MR. Wane. It would be very little profit to prohibit the publication of a thing
and then let a man verbally go upon the stump and proclaim it to the public by
word of mouth.
MR. SHERLEY. That would be more than a communication. The gentleman is
assuming that "communicate" is the only word whereby you can define the of-
fense. I suggest that it is broader than we need.
55 CONC. REC. 171o (1917). Cf. id. at 1698 (Remarks of Rep. McCormick) ("when I
F
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did anyone defend the idea that a newspaper might lawfully "publish" what
an ordinary, citizen was prohibited from "communicating. "283
That no one confirmed an understanding of "communicate" that ex-
cluded publishing does not, however, explain why section 2 was drafted as it
was. We can only speculate, but in our opinion, confusion and inadvertence,
old friends of this legislation, are the likely causes. As initially drafted, sections 1
and 2(a) of S. 8148 were directly patterned upon the 1911 Act.284 Subsection
2(a), like section 2 of the 1911 law, proposed severe sentences for those who
breached section 1 of S. 8148 and then "communicated" the information to
foreigners.2" Nothing in the 1911 law suggests that Congress thought about
the scope of the word "communicates," or'if it comprehended publishing, and
nothing indicates that the subsequent Congress thought about it in enacting
subsection 2(a) in 1917. By contrast, subsections 2(b) and 2(c) were drafted
on a fresh slate, and the drafters were concerned to prohibit disclosures of
citizens and press regardless of whether they had had any contact with govern-
ment places, documents, things, or personnel-necessary elements of a viola-
tion of section 1. Thus, use of the word "publish" makes clear the draftsmen's
intent that it be covered in those newly drafted sections, but the failure to use
the term in the carried-over subsections 1(d) and 2(a) does not prove the
conversea"
? ?r
Doubts that the legislative history justifies the conclusion that Congress
saw a general distinction between communication and publication are rein-
forced because the distinction is not theoretically sound in the context of the
espionage statutes and cannot be applied in any sensible fashion. If one has
possession of information that is subject to statutory restrictions and tells it
to a friend, such personal talk must clearly be characterized as a communica-
tion, or else the publishing exception would swallow the statute whole. At
what point, however, does communication become publication: when one calls
over six friends, or only when one hires a hall? Whatever the turning point,
the anomaly is obvious: if the statute protects the right to read defense docu-
ments to a throng in Madison Square Garden, it cannot sensibly, be construed
say `published' I mean by word of mouth or by print"). Id. at 1712 (Remarks of Rep.
Igoe) ("anything that affects the newspaper will affect the individual").
283. The newspapers were, of course, loudly condemning subsection 2(c). Some who
supported the provision urged that their colleagues were cowering under newspaper
pressure, a criticism that may have produced statements in response that citizens were
to be protected more than the press.
284. The 1911 law is set out at note 25 supra
285. See 54 CONG. REC. 2064 (1917).
286. Moreover, there was no need to add "publish" to 1(d) because the censorship
regulations issued under section 2(c) would surely have covered, and subjected to
greater sanctions, publication of defense secrets gleaned from wrongly divulged documents.
Adding "publishes" to section 794(a), after it had been changed to prohibit communica-
tion to foreigners with intent or reason to believe that information is to be used to injure
the United States or advantage a foreign nation, would have had little effect if our
"primary" use distinction, text supra at note 178, is accepted.
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1036 COLUMBIA LAW REVIEW (Vol. 73:929
to prohibit reading them to a friend at home. The person who publishes
widely may of course be more likely to influence public decision-making, but
the person who communicates to a friend may well be working out his own
policy positions or trying to convince his friend. The greater enhancement of
public debate achieved by widespread publication is inversely proportional to
the extent to which secrecy is compromised. In the intersections of the values
of public debate and secrecy, the private conversation and the public lecture
are balanced at the same point. With respect to publication, the values on
each side of the equation are augmented, but the same tension is maintained. If
general publication is protected, it is ludicrous not to protect private conver-
sation with similar intent. Thus, a line between publishing and communicating
cannot be even generally located by reference to the purpose of the statutes.
One answer to this difficulty might be that publication, to be immunized
from the subsections by virtue of congressional intent, requires involvement
of the media. It might be argued that communications by someone other than
a newsman, no matter how obviously geared to public debate on defense
matters, is not publishing for purposes of differentiating publications from
the statutory coverage of communications. Leaving aside first amendment and
equal protection objections, as well as congressional concern for ordinary
citizens, this interpretation would necessitate guidelines as to who is a pub-
lisher and who are newsmen. The statute contains no such standards and
posing them by judicial construction is, in our opinion, virtually impossible.287
Finally, any effort to distinguish publication by the media from communi-
cation would be vastly complicated by the fact that such publishing inevitably
involves many preliminary communications and retentions. It, too, is not an
event but a process.288 Assuming that publication is protected, if a person has
possession of copies of classified documents, does he publish them if he hands
them to a reporter who will have them published, or is that a prohibited com-
munication, transmittal or delivery? When the reporter hands them to a
typesetter, is that a publication or a prohibited communication? If publishing
is not covered by the statute, can preliminary and incidental communications
and retentions-conduct by persons necessary to accomplish the sort of pub-
lication Congress wished to protect-be held a violation of the statutes?
It was with reference to this problem that justice White's dicta in New
York Times v. United States went astray, in our opinion. Without intimating
his views on the correctness of Judge Gurfein's view that publication was not
comprehended within "communication," White noted that neither publication
nor communication was required to violate the statute ; mere retention would
suffice.289 That approach, in our opinion, can rest on no sound interpretation
287. Cf. Branzburg v. Hayes. 408 U.S. 665. 682 (1972).
288. Cf. Roe v. Wade. Q S. Ct. 705. 731 (1973) ; FREUND et at., REPORT OF THE
STUDY GROUP ON THE CASE LOAD OF THE SUPREME COURT 1 (1972).
289. 403 U.S. 713, 738 n9.
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of the statutes. To protect publishing but criminalize the transfer of the story
to the typesetter is silly. Likewise, it would be wrong to link the reporter to
an offense of initial disclosure by a government employee-if such an offense
existed-by saying the reporter caused it, or by characterizing him as an
accessory to the employee's disclosure. If it is conceded that Congress meant
to exclude publication from criminal prohibitions pertaining to communica-
tions, it is inconceivable that they would contemplate making criminal reten-
tions incident to that act, unless interests other than disclosure of secrets are
at stake.2??
Of course, it would not be inconceivable to treat as a crime initial dis-
closure of a defense secret by a government employee to a reporter, even if
publication and incidental communications and retentions by non-employees
within the publication process were protected.29' We might well adopt a system
which protects all acts in the publication process but makes criminal the initial
revelation by the government employee. Such a system would be a rational,
if a bit uneasy, compromise of the competing values of secrecy and executive
branch loyalty, on one side, and freedom of speech on the other. The espionage
statutes do not, however, enact such a system. The language of 793 (d) govern-
ing the legality of communications and transfer by lawful possessors is exactly
the same as that of 793(e) governing communications by unauthorized per-
sons. If communications by non government employees leading up to publica-
tion are outside the scope of 793(e), there is no statutory basis for different
treatment of the government employee's disclosure of secrets to the press
under 793(d).
On balance, we do not think it is feasible to give effect to the legislative
intention by simply excluding "publishing" from the scope of "communica-
tion." Despite some evidence resting on the drafting of 794(a) and (b), the
legislative history of the espionage statutes does not suggest that interpersonal
discussions about defense policy were valued differently than newspaper pub-
290. It might be an appropriate policy to protect the form of expression in govern-
ment documents even if the revelation of their contents is privileged. Two considerations
might support such a position which would justify treating taking or retention of docu-
ments more strictly than revelation of secret information. First, there are differences,
particularly in diplomatic matters where national prestige is at stake, between widespread
knowledge and official proof, as is indicated by the intense embarrassment occasioned by
official acknowledgement of wiretaps on foreign embassies. Cf. Giordano v. United States,
394 U.S. 310 (1969).
Second, there may be a considerable "chilling effect" on government employees if
they know that their prose-written under time pressure for superiors who are generally
aware of the complexities of the situation, and need not be reminded of qualifications dis-
cussed orally-is likely to be printed in the newspapers as representing the entirety of
their advice.
On the other hand, nothing persuades like the actual document. For example, the
Pentagon Papers reveal little that was not already publicly known: they had impact
because they confirmed widely held beliefs with official prose. Prohibiting revelation of
the actual documents in circumstances where revelation of the information contained
therein would not warrant penalties may serve primarily to protect inappropriate Govern-
ment deception. Thus, here again the same tension is maintained.
291. See text accompanying note 447 infra.
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1038 COLUMBIA LAW REVIEW [VOL 73:929
lications. Congress was quite concerned to protect the individual citizen
curious about defense-related matters who wanted to discuss such matters
with family or friends ; publication and communication motivated by concern
about official policy should consequently be treated as equally legitimate.
If publication and communication or retention cannot be satisfactorily
distinguished as modes of conduct in the context of these provisions, how can
subsections 793(d) and (e) be read to give effect to Congress' intention not to
make participation in debate about defense matters criminal? A reading of
the statutes must be found which can operate generally ; in other words,
publication must be excluded from coverage on an analysis of the statutes that
applies equally to acts of communication and retention. We must turn, there-
fore, to other elements of 793(d) and (e) in the effort to discover such a
reading.
2. Culpability. (a) Willfully. If our conclusions concerning "publish-
ing" are accepted-that Congress had no special understanding of "communi-
cate, deliver or transmit" that automatically excluded it-then application of
sections 793(d) and (e) to public revelation of defense secrets, and conduct
preliminary thereto, hinges primarily on the meaning of the term "willfully."
Can some sense of the term be found which accords reasonable respect to both
the language and structure of the statutes, the legislative history of the par-
ticular term, and the evidence that Congress did not contemplate making
criminal revelations in the course of public debate except in the most limited
circumstances? We think so, although it is admittedly a struggle, and requires
adopting a meaning of willfully that almost surely no single Congressman or
Senator would have recognized as stating his own understanding.
"Willful" is one of the law's chameleons, taking on different meanings in
different contexts.292 It may be construed to require merely awareness of the
physical facts of one's behavior ;293 under other circumstances, it may mean
awareness that conduct is illegal,2D' or, more generally, that it be undertaken
with bad motive.295 In statutes where criminality turns upon the causing of a
particular type of harm, willfully may require specific intent to cause that
harm.29? The different nuances that courts have read into the term are largely
attributable to judicial desire to restrict particular criminal statutes. Narrow
292. See generally Weinreb, Extcudcd Note B. "Willfullncss." in I WORKING PAPERS
OF THE NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS 148 (1970). See
also Weinreb, Comment on Basis of Criminal Liability; Culpability; Causation: id. at
105. 128: "There may be no word in the Federal criminal lexicon which has caused as
much confusion as the word 'willfully' (or 'willful')." The Model Penal Code limits
use of the term to describing how it should be construed if.employed by other draftsmen.
MODEL PENAL CODE ? 2.02(8) (Proposed Official Draft 1962).
293. See, e.g., Ellis v. United States. 206 U.S. 246 (1907).
294. See, e.g., United States v. Murdock, 290 U.S. 389 (1933).
295. See, e.g., Felton v. United States. 96 U.S. 699 (1877).
296. See, e.g., Screws v. United States, 325 U.S. 91 (1945) ; Hartzel v. United
States, 322 U.S. 680 (1944), construing section 3 of the Espionage Act of 1917, as
amended, 18 U.S.C. ? 2388 (.1970).
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interpretations of "willfully" are especially common where legislation is at the
boundaries of constitutional power-as where statutes bear upon free ex-
pression.2" Insofar as sections 793(d) and (e) bear upon speech, the natural
tendency of courts should be to accept a narrow construction of "willfully," in
order to avoid first amendment problems of vagueness and overbreadth. The
problem in so doing cannot be discounted, however. Neither the language nor
the legislative intent of the espionage statute indicates that "willfully" should
be given any particular narrow meaning. Moreover, the reported cases under
793(d) and (e) all treat "willful" as a term of broad signification, quite
different from the culpability standards of 793 (a) and (b).
The structure of the statutes makes apparent that whatever "willfully"
means in subsections 793(d) and (e), it does not restate the culpability stan-
dards of 793(a) and (b) which require "intent or reason to believe." The
distinction in statutory language surely points to a different, and broader,
meaning for "willfully." The legislative history of the 1917 Act is replete
with concern that these criminal statutes make use of appropriate standards
of culpability to distinguish the morally innocent from the guilty. Insistence
on the importance of culpability led to reformation of three provisions and
played an important part in defeating a fourth. In the face of that careful
inclusion of specific intent standards, the claim that Congress in 1917 intended
willfully in 793(d) and (e) to be synonymous with the culpability provisions
of 793(a) and (b) is untenable. Furthermore, the legislative history makes
clear that the Congress understood a difference. On several occasions during
the floor debates, the Senators and Representatives discussing the bills defined
"willfully" in a broad fashion.28 Congress' problem was that it did not under-
stand the breadth of conduct reached by a literal reading of section 1(d), not
that it regarded "willfully" as equivalent to "intent or reason to believe."
The 1950 revision did introduce some confusion on this point into the
legislative history. The Executive draftsmen of 793(d) and (e) clearly
intended "willful" to require a minimum of culpable intent. Their concern was
to close loopholes in the law, not to impose stricter standards on the Govern-
ment by requiring proof of illicit ulterior purpose. Consistent with this, the
House Report,2e which is in large measure taken from the justice Depart-
297. See, e.g.. Dennis v. United States, 341 U.S. 494 (1951).
298. See 54 CONG. Rac. 3604-05 (1917) (remarks of Senator Cummins) (proposed
amendment of the censorship provision, 4 2(c), to require "willful" violation. Effect
conceived to be preservation of ignorance of law defense) : 55 CONG. Rzc. 1717-18 (1917)
(remarks of Representative Graham) (Sections 1 and 2 of H.R. REP. No. 291 protect
the innocent because Government must prove "a guilty purpose, to wit, to injure the
United States . . . Section 3 [House version of 793(d) and (e)] has not the intent in
it") ; id. at 1763 (Remarks of Representative Mann) ("A man who delivers a thing does
it willfully. That is what this [1 31] says") ; id. at 2064 (remarks of Senator Sterling)
("The element of intent or knowledge that the information [is) to be used to the injury
of the United States or advantage of any foreign nation is omitted from these two
subdivisions.").
299. H.R. REP. No. 647, 81st Cong., 1st Sess. (1949).
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ment's letter accompanying the proposed legislation,300 referred to the absence
of an intent requirement in section 793(d), expressly contrasting it with the
stricter culpability requirements imposed by sections 793(a) (b) and (c).
To be sure, the Committee's justification for such general culpability in
793(d)-that the persons covered are those who are in close relation to the
Government-argues for a higher standard of culpability in section 793(e)
where coverage is general.301 "Willful," however, cannot mean one thing as
to government employees and something stricter for non-employees, par-
ticularly as sections 793(d) and (e) do not in terms refer to government
employment 302 The House Committee's statements favor the broad meaning.
In the Senate, however, the matter is in doubt. The Senate's willingness
to enact the proposals without a whimper of protest probably resulted from
assurances that they were of narrow scope. The legislation's sponsor, Senator
McCarran, indicated that he would not support legislation that made news-
papers liable without a "wrongful" act. The response McCarran's inquiries
elicited from Attorney General Clark is fairly read as implying a narrow
scope to the bill, and most directly on point, the Legislative Reference Service
memorandum stated that sections (d) and (e) were, insofar as culpability is
concerned, like sections (a) and (b). Do these strands afford a basis, despite
the statutory language a'hd the countervailing evidence of legislative intent,
for construing "willfullness" to require. conduct animated by anti-United
States or pro-foreign interests?
On balance, we think not. From our reading of the legislative history,
Congress in 1950 failed to appreciate the extent of the problem just as it had in
1917. The House clearly thought that "willfully" implied no special culpability
requirements. There is, furthermore, no evidence that the Senate acted upon
the Legislative Reference Service's misapprehension of the clear difference in
culpability requirements that are evidenced by the structure of the Act and the
statements of the drafters. Neither chamber, however, realized the impact the
statute might have upon activities that it would not consciously have chosen
to make criminal. In part, that failure resulted from soothing statements by the
300. 95 CoNG. Rzc. 441-42 (1949).
301. See text at note 247 supra.
302. The extent to which courts may revise inartfully drawn legislation to effectuate
policies which might have been chosen but were not chosen clearly is a difficult issue. See,
e.g. Scales v. United States, 367 U.S. 203. 211 (1961) (strain but not pervert). Compare
Dennis V. United States, 341 U.S. 494, 499-500 (1951) ("intent to overthrow . . . the
government of the United States by force and violence as speedily as circumstances would
permit" interpolated into statute to save it) with United States v. Reese, 92 U.S. 214,
221 (1875). "It would certainly be dangerous if the legislature could set a net large
enough to catch all possible offenders and leave it to the courts to step inside and say
who could be rightfully detained and who should be set at large."
The problem with section 793(d) is that it is not limited to government employment
but rather speaks to "lawful" possession, a term which catches much more than current
government employees. Cf. Aptheker v. Secretary of State. 378 U.S. 500. 515-17 (1964)
(prohibition on applying for or using passports may not be limited to high ranking mem-
bers of registered Communist organization to save a broadly drawn statute).
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sponsors that newspapers would have nothing to fear, and from the anti-
censorship provision that alleviated concerns about prohibitions aimed at pub-
lication-matters to which we will return in a moment. More important, in our
view, was the preoccupation with other more clearly drawn and controversial
provisions of the 1950 Act. To cure these errors by interpolating the culpabil-
ity requirements of 793(a) and (b) into "willfully," when the legislative
history makes clear that Congress never entertained such a notion, seems
inappropriate.303
A narrow understanding of "willfully" in subsections 793(d) and (e) has
no support in the case law, which recognizes a difference between willfully as
there used, and intent as used in 793(b) and 794(a). Most importantly, in
United States v. Coplon,304 the court construed section 793(d) to require "no
such intent,-'" it merely required that defendant Coplon obtained possession
of the documents and attempted to transmit them to the co-defendant, who
was not entitled to receive them."303 Similarly, in a civil case, Dubin v. United
303. To be sure, in Dennis v. United States. 341 U.S. 494 (1951) the Court construed
the advocacy provisions of the Smith Act. 18 U.S.C. 12385 (1970) to require specific
intent to overthrow the Government, even though other provisions expressly required
such intent But we do not think this precedent is compelling in the context of 1793(d)
and W. First, in Dennis, there was no direct evidence of contrary congressional intent.
Second, as Judge Learned Hand noted in the Court of Appeals, the "specific intent"
may be thought to inhere in the' cotfcepts of "teaching" and "advocating" use of force.
183 F2d 201, 214-215 (2d Cir. 1950).
304. 88 F. Supp. 910 (S.D.N.Y. 1949). The issue was presented in the context of
claimed double jeopardy. Defendant Coplon had been convicted in the District of Colum-
bia for violating 18 U.S.C. 1793(b). In the Southern District of New York she was
indicted for conspiracy, attempt to communicate in violation of 18 U.S.C. 1793(d) (section
1(d) of the 1917 Espionage Act), and attempt to communicate in violation of 18 U.S.C.
1794(a). Applying the additional material fact test of Blockburger v. United States, 284
U.S. 299 (1932), the court held the offenses to be distinct Although the court said that
lesser intent distinguished 793(d) from 793(b), it did not state why proof of violation of
793(b) did not necessarily establish attempt to communicate in violation of 793(d) as
well, insofar as "intent or reason to believe injury or advantage" requires that the actor
contemplate unauthorized revelation.
Interestingly, the jury convicted Coplon of conspiracy, and attempt to communicate
in violation of 18 U.S.C. 1794(a). She was acquitted of the charges under 18 U.S.C.
1793(d), indicating that the jury misapprehended the law, as well they might, given the
sloppiness with which it is drafted. The Court of Appeals rejected the claim of error
based on inconsistent verdicts, invoking the law's dens ex machina for such matters-
presumed jury leniency or compromise See United States v. Coplon, 185 F.2d 629 (2d Cir.
1950) citing nn v. United States, 284 U.S. 390.393 (1932).
Perhaps the most ominous aspect of Coplox is its assumption that a recipient of
pti
wrongly disclosed defense information can be prosecuted as a conspirator with the person
who discloses. Note that even if the current 18 U.S.C. 1793(d) and (e) are construed
to apply only to government employees, application of conspiracy
doctrines to recipient
newsmen would make criminal receipt of defense information where the reporter
cannot claim a good faith belief that the employee was privileged to disclose the particular
matter. That result might properly be barred by regarding 18 U.S.C. 1793(c), construed
to require "intent or reason to believe." as preemptive of conspiratorial or accessorial
liability, at least absent aggravating factors. Sec text accompanying note 354 infra.
Compare the Administration's recent espionage proposal S. 1400, 93d Cong., 1st Sess.,
1 1124 (1973), which precludes prosecuting unauthorized recipients of classified informa-
tion disclosed by government employees or former employees as accomplices or con-
spirators. The proposals are discussed at text following note 425 infra.
305. "[Sipecific irtent that the information be used to the injury of the United
States and to the advantage of a foreign nation." 88 F. Supp. at 911.
306. Id.
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States,"'' the court assumed that private retention of radar devices that
"related to the national defense," erroneously sold by the Government as
surplus property, would violate section 793(e) even though the retention was
clearly not animated by anti-United States motives.
This legislative action, and the judicial rulings on the scope of sections
793(d) and (e), provide no support for a narrow conception of "willfully"
that looks to motivation. It should be noted, however, that even if the phrase
is construed to disregard the actor's ulterior purpose in communicating or
disclosing, substantial narrowing of coverage may be achieved depending upon
how issues of mistake of fact and law are resolved. These issues are not dealt
with in any articulate way in the legislative history, but the manner of their
resolution has considerable bearing upon constitutional issues of vagueness.
First, does the law make criminal transfer of a defense-related document
where the transferor has no basis whatever for knowing that it is "related to
the national defense?" If one happens upon a paper bearing chemical hiero-
glyphics and transfers it to a chemist friend, is an offense committed if the
document "relates to the national defense?" Suppose it explains, if one knows
the meaning of the symbols, how a top-secret explosive compound is syn-
thesized. Surely it was not the intent, either in 1917 or in 1950, to make
criminal the transfer of a defense-related document by a person not knowing
or having reason to know of its significance. Subsections 793(d) and (e) are
not offenses of absolute liability. That point was the focus of the Legislative
Reference Service's response to Senator Kilgore's question concerning "wrong-
ful" acts aoe Such a transfer should not be termed "willful."
Second, suppose a chemist has the document and understands the
formulae, but believes that the document nonetheless does not "relate to the
national defense" because the existence of a comparable series of compounds is
well-known, and, to his knowledge there is no military reason to prefer the
documented compound over others. Is transfer of the document by him an
offense, other elements of the crime being assumed, if the Government estab-
lishes that it does indeed relate to the national defense because this particular
compound is stable at the extreme temperatures caused by some military
usages, whereas all other comparable compounds break down? Suppose the
paper had a stamp on it saying "this document relates to the national defense,"
but the chemist believes strongly that it has no such relationship because,
despite the Government's best efforts to maintain secrecy, the formula has
been printed publicly, albeit in an obscure juornal? At what point is the
mistake of "fact" better characterized as a misapprehension of the legal
307. 289 F2d 651 (1961). See also United States v. Sawyer, 213 F. Supp. 38 (1963).
308. The Service understood Senator Kilgore to be asking whether the offenses
created absolute liability and responded that they did not.
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standard governing defense-relatedness, and what ought to be the consequence
of such misapprehension?
Although Senator Cummins believed that conduct was not "willful"
when done under mistake of law,309 such issues received no real consideration
in either the 1917 or the 1950 legislative history. However, the insistence
that subsections 793(d) and (e) cover only wrongful acts suggests that
criminality should turn on whether the actor's misapprehension of defense-
relatedness for whatever reason is culpable. Certainly, the term willful may be
read to accomplish this result 310
If willfully is read in this fashion, it may substantially affect the constitu-
tional issues of vagueness. Although space limitations preclude lengthy treat-
ment of complex Constitutional law problems herein, they must be briefly
considered. In Gorix the Supreme Court set out a broad understanding of
"related to the national defense," holding the term precise enough to meet
due process vagueness objections because violation of 793(b) and 794(a)
required demonstration that the defendant had acted with the culpable pur-
pose of injuring the United States or advantaging a foreign nation 311 A
person who acted with such purpose could be left to speculate at his peril
concerning the outer parameters of information related to the national defense.
The vagueness issue raised by sections 793(d) and (e) is whether the term
"national defense" is sufficiently definite when the law threatens those whose
revelations are animated by desire to inform the public.
The question is an exceptionally difficult one because so much turns on
how other issues of coverage are treated. For example, if transfer of "national
defense information" were held not "willful" unless the actor was cognizant
that the materials he communicated did "relate to the national defense,"312
there could be no issue of vagueness. The Constitutional problem is simply
whether Congress may enact proscriptions that broad. On the other hand, any
statute that made simple communication of national defense information an
offense without regard to the actor's appreciation of its defense-related status
would in our view be unconstitutionally vague313 Even granting that current
?309. See 54 Coxes Rac. 3604-05 (1917).
310. See, e.g. United States v. Murdock, 290 U.S. 389, 396 (1933) (conduct not will-
ful when bona fide misunderstanding of law).
311. See text accompanying note 122 supra.
312. Reading willfully to require intent to transfer defense related material, cf.
Screws v. United States, 325 U.S. 91 (1945).
313. Sec Coates v. City of Cincinnati, 402 U.S. 611 (1971) for a recent statement of
vagueness standards. It seems to us that vagueness is inevitable insofar as the same
standard "related to the national defense," purports to govern espionage and public dis-
closure. Courts in the espionage context have properly construed that standard broadly
and imprecisely, counting on culpability to make it fair. It is better to remit the issue of
the criminality of the disclosure to Congress, cf. Kent v. Dulles. 357 U.S. 116 (1958),
than attempt precision in formulating defense-relatedness that will undercut prosecutions
for espionage proper.
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law requires that information be "secret," in the sense that the matter must
be one the Government has sought to keep secret,314 and intimates that it must
be information susceptible to injurious or advantageous use,815 there are still
no constitutionally definite standards for what information is covered. That
is particularly the case insofar as the law is so imprecise on when and whether
widespread unauthorized disclosures preclude defense-related status despite
Government assertions that information is still restricted.
These vagueness objections are lessened if, as we shall shortly argue,
subsections 793(d) and (e) are not statutes which penalize unauthorized
transfer of any defense information regardless of its source, but are instead
intended to control dissemination of documents and information originating
in the Government. Consider, for example, the government employee officially
entrusted with documents that his employer indicates are defense-related. Is
it unconstitutional to force him to speculate whether his superior's assessment
is right ale We think not, giving weight to the employee's general obligation
to heed his superior's instruction. If a newspaper acquires the same document,
is it proper to hold official notice against them, and does it matter by what
means they gain possession of the document? Suppose the newspaper does not
receive documents but learns information from government employees, or
friends of employees.. At, some point, the fact that information traces back to
a distant government source ought to have no bearing on the question whether
the standards governing. further dissemination are drafted with appropriate
precision.
Of course, vagueness is not the only issue. Even if prohibitions on
communications are perfectly precise, there are questions of whether they
unconstitutionally abridge freedom of speech or press by sweeping too
broadly.81T In our opinion, subsections 793(d) and (e) are overbroad if con-
strued to apply to documents and information without regard to source unless
"willfully" is also construed to permit evaluation of the actors' motives in dis-
closing. Suppose an actor knows that information relates to the national de-
fense but believes that its military significance is far. outweighed by its
importance for public debate. In that belief, he communicates it widely. A
construction of willfuilness that required awareness that the contemplated con-
duct was defined as illegal would net provide a defense, for there would have
been no mistake of any kind and the statute says nothing about public debate
as a justification. Nor can "relating to the national defense" be given a limited
reading to exclude matters of public importance. Such material should and
314. See text accompanying note 141 supra.
315. See text accompanying note 124 supra.
316. An interesting problem is whether classification, purportedly done in the
interests of national defense, serves as adequate notice insofar as overclassification is so
admittedly widespread.
317. See United States v. Robel, 389 U.S. 258 (1967) ; Baggett v. Bullitt, 377 U.S.
360 (1964) ; NAACP v. Button, 371 U.S. 415 (1963).
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would be covered if sent abroad by a spy, and one can hardly construe "na-
tional defense" differently in two sections of this Act. In our opinion, the
publication of much information of advantage to a foreign nation would be
constitutionally protected.318 If this simple proposition is granted, the statutes
are overbroad because they do not provide a statutory basis for weighing the
advantage to a foreign nation against the benefits of revelation to the United
States.
The overbreadth problem is more complex, however, if courts construe
subsections 793(d) and (e) to apply only to revelations of documents and in-
formation originating directly in the Government. We believe that current and
former employees may constitutionally be subjected to penalties for revealing
defense information entrusted to them, in circumstances where citizen com-
munication of the same information discovered independently could not be
prohibited. But does the citizen stand on the same first amendment footing as
the employee if his information is attained as a direct consequence of the
employee's breach of duty? Does it matter whether the "information" is orally
received or is in documentary form? It may well be that the first amendment
provides greater protection to reporting of information derived from observa-
tion not in itself unlawful than it does to publication of secret information
directly derived from an employee's unlawful disclosure.818 The statute is not,
however, drafted to take account of these differences. -
We set forth these Constitutional dilemmas not with the thought that
they can be adequately treated herein, but rather to emphasize that their
presence argues for constructions of "willfully" that make their resolution
unnecessary. But avoidance of constitutional issues is not the only reason
for construing "willfully" to take account of the purposes which animate
revelation or retention.
Whatever the evidence that "willfully" was meant broadly, the fact remains
that the Congress did not understand the consequences of what was done. In
the 1917 legislative history there is nowhere to be found, once the debate on
subsection 2(c) in S. 2 was joined, express statements that citizen revelation
of secret government documents in the course of public or private debate was
an offense. With respect to the 1950 legislation, not only the legislative
sponsors but also the Attorney General assured Congress that the provisions
were of narrow scope. In light of the recurrent conflict between the Executive
and Congress over the extent to which defense policy should be kept secret,
those assurances should be heavily weighted. Furthermore, there is substantial
318. Again, this follows unless information protected against culpable espionage is
restricted by tighter formulation of what constitutes an "advantage." We think it wrong
to do so.
319. See generally Henkin, The Right to Know and the Duty to Withhold: The
Case of the Pentagon Papers 120 U. PA. L. Rev. 271 (1971) pointing out the Supreme
Court's failure to face these issues in New York Times Co. v. United States, 403 U.S. 713
(1971). But cf. Liberty Lobby v. Pearson 390 F.2d 489 (D.C. Cir. 1968).
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evidence that neither Congress, nor for that matter the Executive, has con-
strued subsections 793(d) and (e) to bear upon conduct done to participate
in public debate. We shall set forth the Congressional understanding in the
course of discussing other legislative treatments of the issue of secrecy, and
Executive understanding in the course of discussing the classification system.
What then should "willfully" mean, if the statute is to be saved by
narrowing construction, rather than struck as vague or overbroad so that the
problem can be returned to Congress for clarification. Impressed by the
absence of evidence that the statutes were meant to bear upon matters of
first amendment concern, we think the term should be read in pari materia
with the proviso to the 1950 Internal Security Act. The proviso, although
applicable to the Act in general, had its roots in newspaper concern for the
reach of the proposed amendments to subsection 1(d) of the 1917 Espionage
Act. Its statement that nothing in the Act shall be construed "to limit or in-
fringe upon freedom of the press or speech" supports an understanding that
conduct is not willful for purposes of the section, when undertaken for any of
the variety of reasons,-stimulating public debate, satisfaction of individual
curiosity, or conducting private policy discussions-that reflect interests pro-
tected by the first amendment. As a practical matter, such a construction leaves
"willfully" meaning almost what it does in sections 793 (a) and (b)-requiring
purpose or knowledge that the primary use to which information will be put
is the injury of the United States or the advantage of a foreign nation. It would
also allow, however, for prosecution of employees who wrongly sell defense
information to commercial organizations for private gain.
(b) Transfer or Retention of Information. The 1950 amendments added
statutory prohibitions on the transfer or retention of "information" to the list
of tangible items previously covered by 793(d) and (e), purportedly to estab-
lish different culpability standards for transfer or retention depending on
whether "information" or a "document" was at stake. Transfer or retention of
"information" is criminal only if the actor has "reason to believe that the
information could be used to the injury of the United States or to the advan-
tage of any foreign nation." Does this phrase describe the "quality" of "infor-
mation" that is transferred or retained, or does it instead speak to the conse-
quences the actor expects to flow from his conduct?
The language of the statute implies that "reason to believe" must exist
only with respect to the information's susceptibility to wrongful use. So con-
strued, it is doubtful that the phrase adds anything. Information or documents
should be held to "relate to the national defense" only if susceptible to advan-
tageous or injurious use in the hands of an implacable foe. "Related to national
defense" cannot be read to include the completely insignificant, as we have
previously argued in our analysis of that term.320 If we are correct, adding
320. Sce text accompanying note 125 supra.
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"reason to believe" to modify information does not limit the amount of in-
formation that would otherwise be covered by sections 793(d) and (e).321
A second meaning, if the phrase describes only the "quality" of informa-
tion, is that it provides a defense of mistake of fact. Whether that adds anything
depends upon how broadly "willfully" is read. We have argued that "willfully"
requires even as to documents, at least culpable negligence with respect to
defense-relatedness 322 Only adamant insistence by Congress should require
courts to adjudicate the constitutionality of strict liability in this area, and no
such direct instructions have been given323 If this position is rejected, how-
ever, the "reason to believe" phrase adds a defense of non-culpable mistake for
information that is lacking for documents.
These are the possibilities if what must be "reasonably believed" pertains
only to the quality of information. What effect does the culpability standard
have if it is read to require the actor's awareness of consequence that might
flow from his communication or retention? For purposes of our concern-
newspaper publication and conduct incident thereto-it would seem to have
no effect whatever. A reporter or publisher inevitably would have reason
to believe that national defense information "could" be used to injure or
advantage. The primary-secondary use distinction we suggested as a limit on
the culpability formulations of sections 793 (a) and (b), which employ the
phrase "is to be used," is linguistically untenable in this context.
3. Documents and Information. Subsections 793(d) and (e) prohibit
communication, transmittal or delivery of a series of tangible items such as
documents, blueprints, photographs and notes that relate to the national
defense. They also prohibit transfer of "information" relating to the national
defense, subject to an additional culpability requirement of dubious significance.
Consequently, numerous issues of characterization must be considered. What
makes a piece of paper a "document" within the meaning of the section?
What is the line between "documents" and "information"? What does "in-
formation" encompass? Is it only information derived from tangible govern-
ment papers, or does it include knowledge acquired through personal observa-
tion ?
For example, assume that the Government has deemed secret all docu-
ments pertaining to a complex dialing procedure that must be followed in order
to telephone a military installation directly. If a civilian accidently discovers
the procedure while dialing his telephone and writes down the information,
does he possess a "document" or a "note" to which either subsection applies?
It is remarkable that the statutes are silent. on so basic a point. Our reading
321. If we are wrong, then "reason to believe" precludes penalizing disclosure of
trivial information, but not trivial documents.
322. See text accompanying note 310 supra.
323. The Senate Report quoted supra note 245, may be read as indicating a belief by
its authors that no such defense is present as to documents.
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1048 COLUMBIA LAW REVIEW [Vol. 73:929
of the legislative record, from 1950 back to 1911, shows that the people who
discussed these subsections almost without exception regarded them as cover-
ing only disclosure of defense-related information that originated within the
Government 324 Thus, although section 794(a) would punish the transfer of
independently discovered defense information to foreigners if done with a
culpable motive, sections 793(d) and (e) do not apply.
While this reading of the statute narrows its coverage considerably, it
still leaves a baffling series of questions about when a writing containing in-
formation originating in Government is a "document" or a "note." Which of
the following are covered by the statute, assuming in each case that the in-
formation written on the paper "relates to the national defense": a) a piece of
paper owned by the Government; b) a word-for-word copy on personal
stationery of a document owned by the Government; c) a paraphrase on
personal stationery of a government-owned document; d) a writing prepared
by a non-employee after conversations with a government employee whom he
realizes has had access to government-owned documents (following an
interview with a military officer, a reporter writes: "After full review of the
evidence, the Air Force has secretly determined that the new plane does not
meet its velocity specifications") ; e) the private writings of a government
employee incorporating, information he has been told ("Dear Mother: Next
month we invade Normandy") ; f) the private writings of an ex-government
employee ("When I was in the Intelligence Service, we had a highly successful
system for eavesdropping on the East German Ambassador") ; or g) a writing
prepared by a non-employee on the basis of personal observation at military
installations ("Twenty-two B-52's are now stationed at the air-base") ?
These questions cannot be answered by reference to the legislative record
because so far as we can ascertain no one expressed opinions on them. We
must therefore deal with them without guidance. On the one hand, the test
of what constitutes a "document" or a "note" could be simply a matter of
whether information happens to be written down, thus treating all the items
listed above as "documents" subject to the prohibition on merely "willful"
retention or transfer. This produces odd results, however, particularly if,
contrary to our belief, the "reason to believe" culpability phrase has sig-
nificance. In such cases, an oral revelation by a government employee might
be innocent while the retention of notes of what he said would be criminal.
Moreover, under this reading one's own transcribed recollection could be
characterized as a government document-a most doubtful construction.
On the other hand, to limit "documents" and "notes" to physical items
in which the Government has a proprietary interest makes only slightly better
324. Section 3 of H.R. 291 was expressly limited to matters "belonging to" the
Government. See text at note 226 supra. For the Senate discussion, see text following
note 207 supra.
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sense. In terms of protecting secrecy interests, whether what is taken is the
original document or a verbatim copy is of essentially no significance ; in fact,
the loss of an original may be preferable, at least where the Government has
other copies, because it enhances the likelihood of discovery that secrecy has
been compromised. Nevertheless, three considerations might be advanced in
favor of such a limited construction. First, if the "reason to believe" phrase
modifying information does require additional culpability, a construction which
augments the "information" category at the expense of "documents" is
preferable for first amendment reasons. Second, the legislative record reveals
the Justice Department's general belief that Julian Wadleigh's transfer of the
abstracts of documents to a communist cell-group was not criminal under sub-
section 1(d) of the 1917 law,3215 a judgment suggesting perhaps that abstracts
are not "documents," and should be deemed "information" covered by the
1950 amendment. Third, subsection 793(b) makes express reference to
"copies," while 793(d) and (e) are silent. On balance, however, we think a
mid-point should be found if these laws are found constitutional and effective ;
the "document" concept should include only verbatim copies.
The problem of finding dividing lines between "documents" and "informa-
tion" is, of course,. especially acute if the "reason to believe" phrase modifying
information requires additional Scienter. The revelation offenses are defined
in terms of an actor who "communicates, transmits or delivers." Consider a
United States government employee in possession of a classified defense docu-
ment. Does he communicate, transmit, or deliver a document or only informa-
tion, if he a) lets someone read it ; b) tells another the substance of the
information which it contains ; c) reads it over a phone ; d) gives another per-
son a writing which reveals information in it ; e) gives another person a copy
of it? Similarly, does the person who listens acquire possession of a "docu-
ment," the subsequent transfer or retention of which is criminal under the
same standards? What if he takes notes? If he takes it down word for word?
Drawing a line between "document" and "information" may also be sig-
nificant for purposes of the retention offense. The law proscribes "retention"
of both, but surely this command is meaningless as to information not in
tangible form. If one has been told that a new airplane does not work, one
cannot possibly purge oneself of that information. One could, however, turn
over all notes on the subject, substantial problems of self-incrimination aside.
The legislative history is mute on the point, but it seems far-fetched to conclude
that Congress intended to prohibit one's writing down things he has observed
or has been told. custody of government papers seems the more likely concern.
Thus, the retention provision may well be overbroad and beyond reformation
insofar as it applies to information.
The breadth of the "information" category raises a series of issues similar
M. See text at note 269 supra.
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to those associated with "documents." While the legislative history makes
clear, we think, that information originating in the Government is the intended
meaning, troublesome questions nonetheless arise. Must the information come
from some document as to which the Government has a proprietary interest, or
can an official's knowledge be the source? The arguments in support of a
limitation to documentary sources rest on evidence earlier noted. The drafts-
men were quite clearly concerned with whether an oral revelation of a protected
document was an offense under subsection 1(d) . Although in 1917 Congress-
men talked as though it were'326 the deletion of "information" from 1(d) made
the issue less than certain. Nothing we have found indicates an intention on the
part of the 1950 draftsmen to do more than plug this loophole in the protection
of secret documents or an understanding that any and all defense "informa-
tion" originating within the Government is covered regardless of its source in
listed tangible items. Moreover, as we will discuss presently, such an expansive
treatment of information, while sensible from the security perspective, would
increase the strain on the concept of "entitlement." Insofar as "information" is
not classified unless it is in documentary form, by what process may it be
shown that a recipient was "not entitled to receive it?" Again, there is nothing
substantial enough in the legislative record to make any particular answer
defensible.
4. Entitled to Receive It. Construction of the entitlement language of
793(d) and (e) follows the frustrating pattern of these statutes. The common
sense meaning of the term seems to have been rejected by Congress in 1917,
and furthermore would give the statutes a sweep that was certainly not accept-
able to the 1917 or 1950 Congresses. Each of the four offenses defined by these
two statutes hinges upon the characterization of recipients as either entitled,
or not entitled, to receive information. The two retention offenses assume the
former situation ; the communication offenses, the latter. Yet in a prosecution
under these acts, how can either term be given effect? "Entitled to receive" is
not defined in the espionage statutes or in any other provision of the United
States Code. If a person is entitled to information only when authorized by
statute, then very few people-including Government officials with security
clearance-are entitled to anything.327 Conversely, if one is entitled to receive
information in the absence of a statute barring its acquisition, the ordinary
citizen again stands on a par with a general. Accordingly, if the entitlement
concept of subsections 793(d) and (e) requires statutory implementation, the
communication and retention offenses are unenforceable.
Congress, however, did not intend that the entitlement concept could
326. Sec notes 214-15 supra.
327. Statutes which authorize specific officials to have particular information it v
very rare. See, e.g.. 42 U.S.C. 44 2161-2163, 2277 which empower the Atomic Etuc,tv
Commission to decide who may lawfully have access to "restricted data," as defined it,
42 U.S.C.2014(y).
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be given effect only by statute. When the "not entitled to receive it" phrase
came into the law in the 1911 Act, Congress was concerned in the first three
clauses with the protection of military installations and other physical places.
Although no legislative history illuminates the point, Congress probably
thought that the official in charge of a protected place would be the source of
rules defining who was "not entitled to receive" information concerning or
stored within the place. Clauses four and five of the 1911 Act, which covered
government employees and others who had control over defense "information"
by reason of some special relation to the Government, also failed to elucidate
"not entitled." s28 Presumably, the phrase was understood to refer to orders
from government superiors about the propriety of disclosing defense infor-
mation. So long as the espionage offenses concerned protected places and
information in the hands of government employees, it seems only common
sense that effectuation of the entitlement concept should come through orders
of executive branch officials in charge of the given place or document.
The Espionage Act of 1917 introduced substantial ambiguities. Subsection
1(d),, read literally, prevented disclosures by persons outside government
employment, and thus not generally subject to executive rules ;a2 consequently
the issue of what determines entitlement became more perplexing. One possible
meaning was that a citizen should not transfer government defense secrets to
another unless the recipient was expressly authorized to have it. It was,
however, precisely the spectre of such a construction that led Senator Cummins
to protest so vigorously against the entitlement language, and his apprehen-
sions were repeatedly met by assurances that no such construction was feasible.
A person could become "not entitled to receive" information, the sponsors of
the 1917 Act indicated, only if a statute or order so specified.SSO
Assuming that statutes or orders are necessary to negate entitlement,
one's expectation would be that the legislation would spell out the authority
by which the statutory proscription might be given effect. The usual pattern
would be a statutory prohibition against communication of a secret to one
"not entitled to receive it"; an express grant of the authority to define "not
entitled" ; and finally, implementation through orders and regulations issued by
the person so authorized. The espionage laws, however, do not deal with
entitlement in such a clearcut fashion. It will be recalled that the 1917 Act,
as originally conceived by the Wilson Administration, would have defined
entitlement explicitly. Section 6 of S. 8148 would have granted the Executive
the power to designate information as secret, after which only officials duly
authorized by Presidential order would be "entitled to receive it." Thus, the
traditional pattern was initially contemplated and in fact survived all the
328. Sec text following note 184 supra.
329. Subsection I(d) applied to person "lawfully or unlawfully having possession of"
any tangible item relating to the national defense.
330. See text following note 196 supra.
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1052 COLUMBIA LAW REVIEW (Vol. 73:929
debates, only to be cut, without explanation, in conference. The consequence
of its elimination was that nothing in the 1917 Act delegated authority to the
President, or anyone else, to formulate rules about entitlement for any
purposes.
The 1950 amendments brought no clarification. Congress might easily
have indicated, for example, that the executive classification program was to
be used in connection with subsections 793(d) and (e). The same Internal
Security Act contained the provision, now codified at 50 U.S.C. ? 783(b),
that makes criminal the transmission by a government employee of classified
information to a foreign agent 331 Section 798 of the espionage chapter, enacted
a few months earlier, made criminal communication or publication of classified
information concerning communications intelligence operations.332 Thus,
Congress knew about the classification system, and was willing to have
prohibitions of narrow scope turn on it. Nevertheless, the only hint in all the
1950 legislative record that "not entitled" might be given content by the
classification system was the comment of Chairman Celler that "we cannot
allow . . . valuable classified and other information, data, and records vital
to our security ... used and disseminated to our grave discomfort." None of
the statements of the Executive proponents of the 1950 legislation, none of the
committee reports; and nothing else in the 1950 debates on the 793 revision, so
far as we are aware, suggests that the effect of 793(d) and (e) would be to
put criminal sanctions behind the classification system.
Although Congress did not expressly refer to the classification system,
there is nonetheless a strong temptation to turn to it as a source of meaning
for "not entitled," largely because no alternative source of meaning seems
available. It would, however, be strange to imply Presidential authority to
determine those not entitled to receive information when an express grant
of that power, section 6, was eliminated from the 1917 Act and no similar
provision has ever been adopted. Furthermore, the proposition that the
President, without statutory authority, can regulate the exchange of defense
information by private citizens runs directly counter to the dominant concerns
expressed in the 1917 debates, the only time the entitlement concept has
received the explicit attention of Congress.
A second objection to the use of classification as a guide is that even
if Presidential power to define entitlement could be implied, no President has
ever exercised it with any clarity or confidence. The classification system as
we know it was established in 1951,'33 after the revision of 793(d) and (e)
331. See text accompanying note 403 infra.
332. See text following note 370 infra.
333. General discussions of the history of the system of Executive classification appear
in Developments in the Lard-The National Sec?ttritr huerest and Civil Liberties, 85
HAav. L. REV. 1130, 1189-1243 (1972) [hereinafter' cited as Developments] ; Parks,
Secrecy and the Public Interest in Military Affairs. 26 GEo. WASH. L. REV. 23, 46-77
(1957) ; REPORT OF THE COMMISSION ON GOVERNMENT SECURITY [hereinafter cited as
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into their present form, by Executive Order 10290.34 This Order con-
tained nothing aimed at implementing the statute's "not entitled" concept.
Nothing suggests that the Order presumed to regulate transfers of information
from citizen to citizen ; quite the contrary, in purely hortatory language, the
Order merely "requested" all citizens to "observe the standards ... and join
with the Federal Government ... to prevent disclosure."m
Moreover, while it is clear that the Order was intended to instruct
government employees not to transfer classified information to citizens, the
only possible indirect implementation of the entitlement concept, whereby
793(d) and (e) might place criminal sanctions behind such disclosures, was
a circuitous reference to sections 793 and 794 in a required classification stamp:
When classified security information affecting the national defense
is furnished authorized persons, in or out of Federal service, other
than those in the Executive Branch, the following notation, in addi-
tion to the assigned classification marking, shall whenever practicable
be placed on the material, on its container, or on the written notifica-
tion of its assigned classification:
This material contains information affecting the national defense of
the United States within the meaning of the espionage laws, Title
18, U.S.C. Secs. 793 and 794, the transmission or revelation of which
in any manner to an unauthorized person is prohibited by law.338
Notice the deviation from the statutory language: whereas 793(d) and
(e) make criminal transmission of defense information to persons "not
entitled to receive it," the classification notice states that revelation to
"an unauthorized person is prohibited by law." Was the intention to shift
the meaning of entitlement from "not prohibited" to not "positively au-
thorized"? Nothing else in the Order referred even obliquely to the espionage
statutes, or to the meaning of "entitlement" in the context of 793(d) and (e).
One provision did note that "no person shall be entitled to knowledge or
possession of, or access to, classified security information solely by virtue of
Rzroarl pp. 151-172 (1957). There have been numerous Congressional hearings devoted
to the classification system. See, e.g., Commission on Government Security, Hearings on
S. I. Res. 21 Before the Subcomm. on Reorganisation of the Senate Comm. on Govern-
ment Operations, 84th Cong., 1st Sess. (1955); U.S. Government Information Policies
and Practices-The Pentagon Papers, Hearings before a Subcomm. of the House Comm.
on Government Operations, 92nd Cong., 1st Sess. (1971). It is remarkable that all these
discussions skirt the basic question of whether revelation of properly classified material
is a crime.
334. 16 Fed. Reg. 9795 (1951). Indeed, section 1(b) of the Order's Regulations
states: "Nothing in these regulations shall be construed to replace. change, or otherwise
be applicable with respect to any material or information protected against disclosure by
any statute." Id. at 9795.
Prior to 1951, the classification program existed within the Departments of the
Army and Navy, having been created in 1917. Developments at 1193. The military
classification program was first extended to civilian departments by President Truman
in 1951 by Exec. Order No. 10290.
335. Preamble to Exec. Order No. 10290. id.
336. Exec. Order No. 10290, section 32(4) (c), id. at 9800. A similar stamp was
used in the Army classification system, having first been utilized in 1935. Developments
at 1194-95.
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COLUMBIA LAW REVIEW [Vol. 73:929
his office or position,""" but it was clearly designed simply to refute any
implied entitlement throughout the Executive Branch and to ensure that only
officials having a "need to know" classified information in order to perform
their official duties would have access to itaa8 The next subsection of the
Order stated that "(c)lassified security information shall not be discussed with
or in the presence of unauthorized persons, and the latter shall not be permitted
to inspect or have access to such information."
Superceding executive orders provide no clarification of the classification
system's effect on the entitlement language of 793(d) and (e). Executive
Order 10501, issued in 1953, included a virtually identical classification stamp
for material furnished to persons outside the Executive Branch,339 but con-
tained no other provisions looking to the possibility of criminal sanctions for
disclosure of classified "information" to unauthorized persons.340 The text of
Executive Order 11,652, the current Order governing classification, contains
no reference to the classification stamp, although the preamble does state:
"[w]rongful disclosure of [classified] information or material is recognized in
the Federal Criminal Code as providing a basis for prosecution. 11141 With
respect to unauthorized disclosures by federal employees, the Order states:
The head of each Department is directed to take prompt and
stringent adminis;yative action against any officer or employee of
the United States, at any level of employment, determined to have
been responsible for any release or disclosure of national security
information or material in a manner not authorized by or under this
order or a directive of the President issued through the National
Security Council. Where a violation of criminal statutes may be
involved, Departments will refer any such case promptly to the
Department of justice.342
The Order is searched in vain for any explicit implementation of the "entitle-
ment" language of 793(d) and (e), or any assumption that criminal sanctions
are applicable to any and all unauthorized disclosures of properly classified
defense information.
The Order did authorize the National Security Council to issue directives
governing the marking of classified material. The NSC implementing directive
requires classified information (other than "restricted data" under the Atomic
Energy Act of 1954) to display the following warning:
337. Exec. Order No. 10290, section 29(a), id. at 9799.
338. The Order limits dissemination of classified information within the Executive
Branch "to persons whose official duties require knowledge of such information." Section
30(a), id. at 9799. Section 29(b), id. at 9799.
339. 18 Fed. Reg. 7049 (1953). The classification stamp appears in section 5(i),
id. at 7052.
340. Similar to the earlier Order, Exec. Order No. 10501 states that "[klnowledge or
possession of classified defense information shall be permitted only to persons whose
official duties require such access in the interest of promoting national defense and only
if they have been determined to he trustworthy." Section 7. id. at 7053.
341. Exec. Order No., 11652. 37 Fed. Reg. 5209 (1972).
342. Section 13(B), id. at 5218.
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"NATIONAL SECURITY INFORMATION"
Unauthorized Disclosure Subject
to Criminal Sanctions.143
These Executive Orders establishing the modern classification system are not
easily construed as giving meaning to the entitlement language of 793(d) and
(e) since no provision expressly defines the term. The obfuscation in the
Orders as to the relevance of the criminal sanctions for breach of classification
can only be purposeful ; the latest Order, for example, is even less straight-
forward than its precursors in that it omits explicit reference to the espionage
statutes.
Statutory authority for the classification program is not express. The
Executive Branch, however, rightly claims that authority is implicit in a
number of statutes. The Commission on Government Security, established by
Congress in 1955 to review the federal loyalty and security program, found
authority for the classification system in several statutes.344 Significantly, the
Commission did not mention sections 793 or 794, even though by citing
sections 795 and 798 it demonstrated awareness of the espionage statutes s4a
Furthermore, numerous Executive summaries of classification problems mani-
fest a belief, generally regretted, that violation of the classification system is
not a criminal offense.348 The Government Security Commission "found to its
dismay" that unauthorized disclosure of classified information without sub-
versive intent is "not amenable to applicable criminal statutes or other civil
penalties" for persons "removed from Government Service."347
A number of legislative proposals have been introduced since 1950 that
can only reflect the assumption. that the espionage statutes do not prohibit
non-culpable disclosure of properly classified information. Whether the lack
of coverage was seen as stemming from the problems of giving meaning to the
343. 37 Fed. Reg. 10053, 10059 (1972).
344. RzmRr at 158. See also, Developments at 1198.
345. Ramer at 158-59.
346. See, e.g., statement of William Florence, Pentagon Papers Hearings at 195;
Morrison, The Protection of Intelligence Data:
An individual who simply reveals to the public at large classified data is for all
practical purposes immune from prosecution since his defense, of course, would
be that he thought the American public had a right to know and the Govern-
ment would not be able to prove intent to aid a foreign government or to harm
the United States. The fact that any reasonable man would know that revela-
tion to the general public ipso facto reveals to foreign governments is immaterial.
Even if the one making the exposure is a government employee well versed in the
rules governing classified information, there can be no presumption of intent
which would bring him within the terms of present espionage laws.
(unpublished paper on file in the Columbia Law Library) (Morrison was Assistant
General Counsel of the C.I.A. when this paper was written) Miskovsky, The Espionage
Lares, pp. 15 et seq. (unpublished paper on file in the Columbia Law Library) details
the numerous proposals by Executive Departments to deal with the perceived inadequacy
of the espionage statutes to protect classified information from unauthorized disclosure.
But see statement of William Tompkins, Hearings before a Subco,nm. on Reorganization
of the Senate Committee on Govt. Operation, 84th Cong., 1st Sess. 63 (1955).
347. REPORT at 619-620.
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entitlement concept is not clear. Other reasons for the proposals may have
been the notion that all the espionage statutes, including 793(d) and (e),
require a showing of purpose to injure the United States or advantage a
foreign nation, or that proof of defense-relatedness would compromise the
security interests of the classification program. Yet, if the only problem with
current statutes were proof of defense-relatedness, one would expect the
subsequent proposals to have been justified in terms of that legislative purpose.
They have not been so justified.
Perhaps the most significant of these proposals, that of the Govern-
ment Security Commission, would have made unauthorized disclosure of
classified information a crime.348 The measure made no progress at all in
Congress,349 and was abandoned by the Executive as politically untenable.'"
A similar proposal had been advanced in 1946 by the joint Congressional
Committee on the Investigation of the Pearl Harbor Attack .351 It was severely
cut back by the judiciary Committees and wound up as the current section 798
of Title 18 which prohibits disclosure of the narrow category of classified
communications intelligence information 352 In 1962, Senator Stennis intro-
duced a bill to amend section 793 to make disclosures of classified information
a crime, without any narrow intent requirement -au The proposal was not
enacted. If the classification system were thought to be protected by criminal
sanctions against "willful" disclosure of defense-related information, it is
remarkable that two Commissions and a Senator knowledgeable about the laws
relating to national security would have seen a need for these proposals.
The relationship of the classification system to sections 793(d) and (e)'s
"not entitled to receive it" formulation is thus unclear in three basic respects.
First, Congress has not expressly authorized the President to define who is
"entitled to receive" defense information. Furthermore, neither the statutes,
the legislative history, nor the acts of the President support or point to the
exercise of any such implicit authority. Second, even if "entitled to receive it"
may be given meaning by Executive Order despite the deletion of express
authority to define the phrase, its construction must be guided by the under-
standing of Congress. During the debates on S. 8148 Congress manifested an
understanding that a person was "not entitled" only if -a statute or valid order
precluded his acquisition of particular information. Therefore, we cannot
equate "not entitled" to receive with "not affirmatively authorized" to receive.
Even assuming that the President has implicitly been granted authority to
348. Rsroxr at 619-20. The Commission's proposed statute is set out id. at 737.
349. Senator Cotton introduced a bill, S. 2417, in the 33th Congress, to implement this
proposal of the Commission, but the bill was never reported favorably by the Senate
Judiciary Committee.
350. See Miskovsky at 23.
351. See note 381 infra.
352. The legislative history of section 798 is discussed at text following note 373
infra.
353. 108 CoNG. Rac. 23140-41 (1962).
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define the terms-and assuming such delegation of power to control the speech
of ordinary citizens could survive attacks on the grounds of vagueness and
overbreadth-serious questions would remain whether the authority has been
effectively exercised. The Executive has nowhere asserted that communication
of classified information to a person not authorized by Executive regulations
to receive it is a crime. The "classification stamps" are at most circuitous
references to penal sanction that hardly bespeak Executive confidence that
its rules and regulations give meaning to the entitlement concept. Finally,
legislation has been offered from authoritative sources that proceeds on the
assumption that 793(d) and (e) do not make simple disclosure of defense
information a crime. Congress has always refused to enact such proposals to
put criminal sanctions of general scope behind the classification system.
These confusions, in our opinion, vitiate whatever force there may be to
the argument that because reference to the classification system is the only way
to give meaning to the entitlement concept, subsections 793(d) and (e) should
be interpreted to make criminal any communication of defense documents or
information to persons unauthorized to receive it pursuant to the classification
system. Reading the classification program into the "not entitled to receive it"
phrase of subsections 793(d) and (e) would accomplish precisely what Con-
gress has refused to do.
5. Summary. Subsections 793(d) and (e) remain mysterious even
after patient efforts to analyze the legislative record that has produced them.
To accord with the dominant theme of legislative intention, the culpability
standard "willfully" must be imbued with a meaning which reflects the general
substance of Senator McCarran's anti-censorship provision of the 1950 Act.
Only by this straining of the statutory language can the legislative purpose of
not enacting sweeping prohibitions on publication of defense information be
respected. Moreover, a more conventional reading of "willfully" almost
certainly leaves these statutes overbroad in the first amendment sense.
We doubt that reading "willfully" to save these statutes is worth the
strain. The evidence is compelling that Congress ceased to have any real
understanding of these statutes after 1) the provisions were broadened beyond
the 1911 Act's prohibitions applicable to military places and government
employees, 2) the provision which would have implemented the entitlement
language was struck from the bill without explanation, and 3) Congress
demonstrated by the narrowing and ultimate rejection of the Wilson Admin-
istration's broad proposed prohibition on publication of defense information
that it did not intend to enact prohibitions on publication or communication
motivated by the desire to engage in public debate or private discussion. The
only time these provisions drew sustained legislative attention was during
consideration of S. 8148, when the Senate of the 64th Congress proved itself
overwhelmingly acquiescent to the Wilson Administration's interlocking
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1058 COLUMBIA LAW REVIEW (Vol. 73:929
proposals for broad information controls. As the more clearcut of these pro-
posals went down to defeat in the 65th Congress, the vague and baffling
provisions now codified in 793(d) and (e) survived intact, due to a combina-
tion of inadvertence in the Senate and understood narrow scope in the House.
The 1950 revision exacerbated the confusion, at once making clear the
applicability of the provisions to ordinary citizens as well as government
employees, and reaffirming the inapplicability of the statute to publication of
defense information. On top of this evidence of legislative confusion, there
is the absence of any forthright executive action to implement the provisions'
entitlement language, and the refusal of later Congresses to adopt broader
prohibitions on disclosure of classified information. The only reading of these
provisions which is faithful to the legislative history would leave them
accomplishing almost nothing not already covered by subsection 794(a) or the
other subsections of 793. In these circumstances, courts should hold these
provisions not applicable to communication or retention activities incidental to
non-culpable revelation of defense information. Whether the courts should go
further, and hold these statutes unconstitutionally vague across the board for
the confusion surrounding the entitlement concept is a difficult question, but
on balance we see little worth preserving in these two remarkably confusing
provisions.
VI. SUBSECTION 793(c)
Subsection 793(c) is yet another instance of Congress's enacting espio-
nage legislation which if read literally may make criminal a considerable range
of conduct pertaining to public debate. The statute provides:
(c) Whoever, for. the purpose aforesaid, receives or obtains or
agrees or attempts to receive or obtain from any person, or from any
source whatever, any document, writing, code book, signal book,
sketch, photograph, photographic negative, blueprint, plan, map,
model, instrument, appliance, or note, of anything connected with the
national defense, knowing or having reason to believe, at the time
he receives or obtains, or agrees or attempts to receive or obtain it,
that it has been or will be obtained, taken, made, or disposed of by
any person contrary to the provisions of this chapter ... aaaa
As with subsections 793(d) and (e), the principal determinant of the
statute's scope is the culpability required to violate it. That issue in turn
depends on construction of "for the purpose aforesaid," a reference to the
culpability standard of 793(a). Subsection 793(a) commences:
Whoever, for the purpose of obtaining information respecting 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, goes upon ....
353a. Sec 18 U.S.C. ? 793(c) (1970).
1
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Subsection 793(b) begins:
Whoever for the purpose aforesaid, and with like intent and reason
to believe, copies ....
In subsection 793(b) the words "purpose aforesaid" clearly mean only the
purpose of obtaining information "respecting the national defense." Insofar as
the same words "purpose aforesaid" are used in subsection (c), the argument
is strong that they have the same meaning as in subsection 793(b). Such a
construction permits conviction regardless of whether the actor intended or
expected any harm to United States interests to result from his conduct.
Although this reading of subsection (c) is strongly supported by the
statute's structure and drafting history,35* apparently no one understood it that
way. The assumption has been that the same culpability was required to violate
subsection (c) as subsections (a) and (b). Thus, the single clear reference to
subsection (c) in the 1917 Senate debates is Senator Sterling's comment in
passing that "intent or reason to believe" is an element of the crime sas
Similarly, the 1950 House report on the proposed amendments to section 793
states expressly that subsection (c) requires the prosecutor to prove wrongful
intent ;3 and the same position was taken by the Legislative Reference Service
in their response to Senator Kilgore 367 In the absence of indication that
subsection (c) has ever been` thought by Congress to be of greater reach
than subsections (a) and (b), we think it appropriate that the statute be given
that gloss, even though such an interpretation is imaginative in view of the
statutory language.
If this position is rejected, however, then the sweep of subsection 793(c)
depends upon numerous other issues. First, it clearly prohibits receipt of
tangible items only ; regardless of whether oral revelation of the contents of a
document is a communication, transmittal or delivery of it, certainly the person
who simply listens does not thereby receive a document. Second, subsection
(c) prohibits the receipt of documents or notes only when the actor knows of
354. Section 1 of S. 8148 as first introduced contained these provisions:
(a) whoever, for the purpose of obtaining information respecting the
national defense, to which he is not lawfully entitled, . . .
(b) whoever, for the purpose aforesaid, and without lawful authority, .. .
(c) whoever, for the purpose aforesaid... .
The placing of the commas indicates that a purpose to obtain was a common element
of the three proposed offenses, with non-entitlement, absence of lawful authority, and
knowledge or belief that the Espionage Act had been or would be violated as three
distinct requirements. See 54 Cong. Rec. 2820 (1917). When S. 2 was introduced, "intent
or reason to believe" was substituted for entitlement in ? 1(a), and "without lawful
authority" in ? 1(b). 55 CoNG. REC. 778 (1917). Nothing was done to ? 1(c).
In the House, on the other hand, all the gathering offenses required the same intent
to injure the United States. Insofar as the House believed that ? I as adopted effected no
"material change" in H.R. 291's scope. ? 1(c)'s language ought not to be pressed in the
face of legislative confusion.
355. 55 Coat. R`.c. 2064 (1917).
356. See text at note 247, supra.
357. See text at note 251, supra.
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past or intended breaches of the espionage laws, bringing into question the
reach of the other statutes. If subsections 793(d) and (e) are construed not
to apply to participants in public debate, then subsection (c) has little
impact on publications of defense secrets. If, however, subsections (d) and
(e) are read to make any such disclosures criminal then subsection (c) makes
the receipt of any tangible item that may be characterized as a "document" or
"note" a criminal offense, even though no conspiratorial relationship of any
sort exists between the recipient and the person who first disclosed.'"
VII. OTHER STATUTES BEARING ON PUBLICATION OF
DEFENSE INFORMATION
In addition to sections 793 and 794, several other provisions, aimed either
at narrow categories of especially sensitive information or at particular classes
of actors, govern dissemination of information relating to national security.
Indeed, if our understanding of the interpretation to be given sections 793 and
794 is correct, the narrower statutes constitute the only effective statutory
controls on publication of defense information and preliminary retentions and
communications leading up to publication. Furthermore, given the confusions
of language and history in sections 793 and 794, later statutes that reflect
Congress' understanding. o(, the two general sections are valuable aids in
interpreting them.
A. 18 US.C. ? 952
Section 952 of Title 18 prohibits revelation by federal employees of any
matter that has been transmitted in the diplomatic code of a foreign country.
Although it is far narrower than the Espionage Act of 1917, the section
evidences a characteristic congressional balancing of the need for secrecy and
the interest in dissemination of news. Section 952 provides:
Whoever, by virtue of his employment by the United States,
obtains from another or has had custody of or access to, any official
diplomatic code or any matter prepared in any such code, or which
purports to have been prepared in any such code, and without
authorization or competent authority, willfully publishes or furnishes
to another any such code or matter, or any matter which was ob-
tained while in the process of transmission between any foreign
government and its diplomatic mission in the United States, shall
be fined not more than $10,000 or imprisoned not more than ten
years, or both.aae
The statute was passed in response to the publishing activities of Herbert
------------
358. For example, if the Pentagon Papers were national defe
H
nse documents, and if
eine is read narrowly so that information the Government has sought to suppress does
not lose its
documents." de ense-elated character despite its disclosure, and if verbatim copies are
18 U.S.C. ? 793(c). rY person who bought the New York Times to read them violated
359. 18 U.S.C. 1952 (1970).
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0. Yardley, a former director of the division of the State Department charged
with breaking the diplomatic codes of other nations.360 The division was dis-
banded in 1929, apparently on the quaint notion that code-breaking was tun-
ethical during peacetime. In the same year, after leaving the Government,
Yardley wrote a book entitled "The American Black Chamber," which de-
scribed the Department's code-breaking procedures and included translations
of coded dispatches sent by the Japanese Government to its representatives at
the 1921 Disarmament Conference. Publication of these dispatches apparently
embarrassed relations between the United States and Japan, and, perhaps
more significantly, allegedly caused the Japanese Government to adopt a new
code system and to tighten security with respect to cryptographic procedures.
In late 1932, the State Department learned that Yardley had completed a
second manuscript. Fearing that the second book might contain more decoded
dispatches and might further disrupt relations with Japan on the eve of the
1933 International Economic Conference, the Department quickly submitted
a bill to prevent the publication of decoded messages sent by a foreign govern-
ment.
The Department's proposed legislation, H.R. 4220381 went considerably
360. Yardley is probably better known to students of the laws of chance than students
of the law of espionage. Subsequent!'to the The American Black Chamber, Yardley
wrote The Education of a Poker Player which has become a classic in the literature
concerning speculation on the turn of a card. Yardley's central role in the adoption of
section 952 is reflected in Cong. Celler's statement. 77 CONG. Rec. 5333 (1933).
361. H.R. 4220 provided:
That whoever, by virtue of his employment by the United States, having
custody of, or access to, any record, proceeding, map, book, document, paper, or
other thing shall, for any purpose prejudicial to the safety or interest of the
United States, willfully and unlawfully conceal, remove, mutilate, obliterate,
falsify, destroy, sell, furnish to another, publish, or offer for sale, any such record,
proceeding, map, book, document, paper, or thing, or any information contained
therein, or a copy or copies thereof, shall be fined not more than $2,000 or im-
prisoned not more than three years, or both, and moreover shall forfeit his
office and be forever afterwards disqualified from holding any office under the
Government of the United States.
Sec. 2. Whoever shall willfully, without authorization of competent
authority, publish.or furnish to another any matter prepared in any official code;
or whoever shall, for any purpose prejudicial to the safety or interest of the
United States, willfully publish or furnish to another any matter obtained with-
out authorization of competent authority, from the custody of any officer or
employee of the United States or any matter which was obtained while in process
of transmission from one public office, executive department, or independent
establishment of the United States or branch thereof to any other such public
office, executive department, or independent establishment of the United States
or branch thereof or any matter which was in process of transmission between
any foreign government and its diplomatic mission in the United States; or
whoever shall for any purpose prejudicial to the safety or interest of the United
States, willfully, without authorization of competent authority, publish, or furnish
to another, any such matter or anything purporting to be any such matter, shall
be fined not more than $10.000 or imprisoned not more than ten years, or both.
Sec. 3. In any prosecution hereunder, proof of the commission of any
of the acts described herein shall be prima facie evidence of a purpose prejudicial
to the safety or interest of the United States.
The proposal is set out in the Report of the House Judiciary Committee, which
recommended passage without any effort to analyze the scope of the proposal. H.R. REP.
No. 18, 73rd Cong., 1st Sess. (1933).
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1062 COLUMBIA LAW REVIEW [Vol. 73:929
beyond the needs of the Yardley case and reached more than the de-coded mes-
sages of foreign governments. The first section prohibited publication "for
any purpose prejudicial to the safety or interest of the United States" of any
"record, proceeding, map, book, document, paper or other thing" by anyone
who had access to the material by virtue of his employment by the Govern-
ment. Moreover, section two covered anyone, not just present or former
government employees, who published "without authorization" any matter
prepared in code or published anything obtained from the custody of a gov-
ernment employee "without authorization of competent authority," if the
publication was "for any purpose prejudicial to the safety or interest of the
United States." The House Judiciary Committee approved this proposal and
the House passed this extraordinarily sweeping bill under suspension of rules
and virtually without debate 367 The Senate Judiciary Committee, however,
balked at the vague prohibition applicable to publication of any and all gov-
ernment documents,363 and once the bill was subjected to scrutiny, even the
Secretary of State disavowed it 384
The Senate Judiciary Committee reported an amended version of H.R.
4220 that was narrowed to the scope of the current section 952. The basis for
the Committee's action, it is clear, was concern that the House bill would have
an unwarranted impact on freedom of the press. The sweeping ban on publica-
tion of anything obtained Erom the Government without authority was rejected
out-of-hand, and publication of decoded diplomatic communiques was removed
from the scope of the statute. The final statute. regulated only the revelations
of present or former government employees about diplomatic codes or matters
obtained in the process of transmission.
362. Narrow concern was voiced that the bill would interfere with members of
Congress who sought information about foreign policy. Mr. Hooper, the Chairman of
the House Judiciary Committee, assured the critics that "[a] Member of Congress is not
an employee of the (United States] within the ... meaning of the bill.... The bill does
not apply to them." 77 CONG. REC. 1152 (1933).
Two members, Mr. Black and Mr. McFadden, pointed out that the bill might prevent
a newspaper reporter from obtaining information about corruption within a government
department, and that there would be a broad prohibition on newspaper publication was
acknowledged by a member of the Judiciary Committee. Id. at 1153.
Nevertheless, H.R. 4220 was overwhelmingly passed in the House by a vote of 103
ayes to 27 noes.
363. S. REP. No. 21, 73d Cong., 1st Sess. (1933). The Senate Report was even more
cursory than its House counterpart.
364. In the Senate debates, Senator Pittman noted:
The bill as it came from the House provided that certain acts committed by the
press should be considered as criminal acts. All of that portion of the measure
has been eliminated. The only act made a crime by the measure as it now stands
is that of a person who, by virtue of his employment, acquires certain Govern-
ment records, or correspondence between governments, and publishes it, or gives
it to another to publish. 77 CONG. Rec. 3125 (1933).
Pittman quoted a letter from Secretary of State Cordell Hull which urged that the final
bill should not be applicable to newspaper publication because "[sjuch effects as to the
press, of course, were not remotely contemplated by myself. . . [J[jy individual view
is that the American public should suffer incalculable injuries in other respects before
the freedom of the press should be injuriously affected...." Id. at 3126.
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ESPIONAGE STATUTES
In the Senate, a question was raised concerning the application of 952
when a present or former federal employee communicates and a newspaper
publishes decoded foreign government messages. The debate made it quite
clear that newspapers or reporters would not be guilty under the statute unless
their activities met the tests of the general conspiracy statute, and that a non-
government employee would not be covered by the bill if he happened to find
some decoded messages and published them 3B5 The statute was aimed solely
at federal employees who breached their trust,308 and any outsiders who "will-
fully contributed to that act, advised, aided, and abetted it."387 The House
accepted the Senate's much narrowed version of section 952, virtually without
debate 388
The relevance of section 952 to the provisions of the 1917 Act is sug-
gestive but inconclusive. It is clear that neither the Executive Branch nor
Congress believed that Yardley's publication was barred by the 1917 Act.
However, the precise basis for this assumption is not clear ; indeed, the
Espionage Act was hardly mentioned. There may have been doubt that ma-
terial transmitted in a foreign diplomatic code was "information respecting
the national defense. If the Espionage Act was thought inapplicable for this
reason, the enactment of section 952 would shed no light on whether the Espio-
nage Act was considered a bar on publication of defense information. Alterna-
tively, it may have been assumed that Yardley's publishing activities did not
constitute a "communication" barred by the precursors to subsections 793(d)
and 794(a).30
Since it cannot be known which of these reasons might have led the
Executive and Congress to conclude that the Espionage Act did not prevent
Yardley's publications, and since the earlier Act was not expressly considered,
we believe the adoption of section 952 is not a significant aid in interpreting
the earlier statutes. However, the provision is a characteristic response by
Congress: when faced with a clear conflict between secrecy and freedom of the
press, it made a conscious judgment not to penalize publication but to protect
the secrecy interest by regulation of the government employee. ,This pattern
of reconciliation, reflected in section 952, may be instructive insofar as it
supports our hypothesis that subsection 1(d) of the 1917' Act was intended
at most to apply to government employees. Yet caution should be exercised
about even this analogical use of 952. Congress may well have believed that the
revelation of diplomatic codes would present less of a threat to national secu-
rity than the disclosure of information respecting the national defense. Less
365. Remarks of Senator Connolly. Id. at 3134.
366. Remarks of Senator Pittman. Id. at 3126.
367. Remarks of Senator Robinson. Id. at 3135.
368. The Conference Report urging acceptance of the Senate version is printed and
briefly debated at id. at 5333-34.
369. See text following notes 275 and 34 supra. Subsection 794(b) was not applicable
to Yardley's publishing because the activities took place in peacetime.
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[Vol. 73:929
sweeping restraints on revelation may therefore have been regarded as ap-
propriate.
B. 18 U.S.C. ? 798
Ambiguities do not cloud the relevance of section 798 to the coverage of
the Espionage Act of 1917.370 This provision was enacted in 1950, virtually
contemporaneously with 793(d) and (e), to cover cryptographic information,
material surely at the heart of the "related to the national defense" concep-
tion. Explicit assumptions were made as to the coverage of 793 and 794.
Section 798 makes criminal knowingly and willfully communicating, trans-
mitting, furnishing or publishing classified information concerning: 1) the
"nature, preparation, or use of any" code, cipher or cryptographic system "of
the United States or any foreign government"; 2) the construction, use,
maintenance or repair of any device used, or planned to be used for crypto-
graphic intelligence purposes ; 3) the communication intelligence activities
of the United States or any foreign government; and, 4) information obtained
by processes of communications intelligence from any foreign government;
knowing the same to have been obtained by such processes.3'M
370. Congress inadvertently enacted two provisions codified as 18 U.S.C. 1798.
371. Section 798 was enacted about four months prior to the enactment of 793(d)
and (e) in the Internal Security Act of 1950. However, the bill was introduced, repo,
and debated in the same period as 793(d) and (e) were making their way through the
legislative process.
372. The full statute provides:
1 798. Disclosure of Classified Information
(a) Whoever knowingly and willfully communicates, furnishes, transmits,
or otherwise makes available to an unauthorized person, or publishes, or uses in
any manner prejudicial to the safety or interest of the United States or for the
benefit of any foreign government to the detriment of the United States any
classified information-
(1) concerning the nature, preparation, or use of any code, cipher, or
cryptographic system of the United States or any foreign government;
or
(2) concerning the design, construction, use, maintenance, or repair of
any device, apparatus, or appliance used or prepared or planned for use by the
United States or any foreign government for cryptographic or communication
intelligence purposes ; or
(3) concerning the communication intelligence activities of the United
States or any foreign government; or
(4) obtained by the processes of communication intelligence from the
communications of any foreign government, knowing the same to have been
obtained by such processes--
Shall be fined not more than $10,000 or imprisoned not more than ten years,
or both.
(b) As used in subsection (a) of this section-
The term "classified information" means information which, at the time of a
violation of this section, is. for reasons of national security, specifically desig-
nated by a United States Government Agency for limited or restricted dis-
semination or distribution;
The terms "code." "cipher," and "cryptographic system" include in their
meanings, in addition to their usual meanings, any method of secret writing and
any mechanical or electrical device or method used for the purpose of dis-
guising or concealing the contents, significance, or meanings of communications;
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ESPIONAGE STATUTES 1065
Although a few questions arise under this statute that has yet to receive
judicial gloss, compared to sections 793 and 794 it is a model of precise
draftsmanship.873 First, the statute and its history make evident that violation
occurs on knowing engagement in the proscribed conduct, without any addi-
tional requirement that the violator be animated by anti-American or pro-
foreign motives. Second, the use of the term "publishes" makes clear that the
prohibition is intended to bar public speech. Third, the inevitable vagueness
in defining what cryptographic information is subject to restriction is sub-
stantially mitigated, although perhaps at the cost of overbreadth, by making
classification an element of the offense.
One significant question left open under 798 is whether there is a defense
of improper classification. Classified information is statutorily defined as that
"which . . . is, for reasons of national security, specifically designated by a
United States Government Agency for limited or restricted dissemination or
distribution." If "for reasons of national security" referred simply to the motive
for classification, then no defense would be appropriate on the grounds that
the discretion to classify was improperly exercised. The only effect of the
phrase would be to make clear that information classified for reasons other
than national security, and thus improperly classified under the Executive
Orders authorizing the classification program, was not within the scope of
798. On the other hand, both the Senate and House Judiciary Committee
Reports state: [t]he bill specifies that the classification must be in fact in the
interests of national security. 1;374 This suggests.that the appropriateness of the
classification is a question of fact for the jury. Presumably, the courts would
weigh heavily this indication of legislative intent, particularly since the result-
The term "foreign government" includes in its meaning any person or
persons acting or purporting to act for or on behalf of any faction, party, depart-
ment, agency, bureau, or military force of or within a foreign country, or for or
on behalf of any government or any person or persons purporting to act as a
government within a foreign country, whether or not such government is recog-
nized by the United States;
The term "communication intelligence" means all procedures and methods
used in the interception of communications and the obtaining of information
from such communications by other than the intended recipients;
The term "unauthorized person" means any person who, or agency which,
is not authorized to receive information of the categories set forth in subsection
(a) of this section, by the President. or by the head of a department or agency
of the United States Government which is expressly designated by the President
to engage in communication intelligence activities for the United States.
(c) Nothing in this section shall prohibit the furnishing, upon lawful
demand, of information to any regularly constituted committee of the Senate or
House of Representatives of the United States of America, or joint committee
thereof.
18 U.S.C. 4 798 (1970).
373. There has been at least one prosecution which ended in a guilty plea. As is true
with other espionage cases, covert transmission to an agent of a foreign government
was involved. Sec Hearings on Resplntiun to Establish Conrinission on Government Se-
curity at 141 (1955).
374. S. REP. No. 111. 81st Cong.. 1st Sess., at 3 (1949), H.R. REP. No. 1895. 81st
Cong., 2d Sess., at 3 (1950) (emphasis added).
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ing interpretation of 798 would accord with the position of 793 and 794 on
this question 376
Whether, as a matter of sound policy, improper classification should be a
defense is a difficult judgment to make. The principal argument against it is
the familiar one, rejected in 793 and 794. that the Government may have to
reveal too much in refuting the claim of improper classification.376 It may be
that cryptographic techniques would be rendered especially vulnerable if the
Government was required to demonstrate why particular information must be
classified. The countervailing consideration is, of course, the fact routinely
accepted in all quarters that the Executive branch abuses the power of classifi-
cation. To give the Executive unreviewable power to invoke a prohibition
on the communications of everyone, even as to a relatively narrow category
of information, seems to be of doubtful wisdom.
The conclusion that the legislative history would support a defense of
improper classification is an important one in assessing the reasons why Con-
gress, despite the 1917 Act, thought section 798 was necessary. Under the
1917 Act, the Government must prove defense-relatedness as an element of
its case, and such a demonstration may itself significantly compromise Govern-
ment secrecy. Prohibitions on disclosure of classified information as such,
with no defense of improper classification, do not put the Government to
this counterproductive burden of proof. Apparently, however, the committees
did not intend to relieve the Government of this burden in prosecutions under
section 798, and thus elimination of this problem for the Government under
the 1917 Act cannot have been what moved Congress to adopt section 798.
Instead, the passage of section 798 reflects other significant congressional
assumptions about the limited scope of the Espionage Act of 1917. In addition,
section 798 also evidences strong concern for freedom of the press at virtually
the same time Congress was revising subsection 1(d) of the 1917 Act into the
present subsections 793(d) and (e).
Information about cryptographic processes would clearly meet the test
of "information relating to the national defense" within the meaning of the
1917 Act. Thus, the failure of the earlier Act to cover publication of code
information must have been regarded as resulting from other limits in its
scope. The legislative history of the cryptography provision strongly suggests
that Congress and the Executive believed general publication of communica-
tions intelligence information would fail to meet the "intent or reason to be-
lieve that the information [communicated, obtained, copied. etc.] is to be used
375. Compare Scarbeck Y. United States. 317 F.2d 546 (D.C. Cir. 1962), refusing to
hear a defense of improper classification under 50 U.S.C. ? 783(b) which bars govern-
ment employees from knowingly giving "information of a kind which shall have been
classified by the President . . . as affecting the security of the United States" to agents
of foreign governments or Communist party members or organizations.
376. Sec text accompanying note 124 supra.
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1973] ESPIONAGE STATUTES
to the injury of the United States, or to the advantage of any foreign nation"
required by the 1917 Act. Both committees noted that the Espionage Act of
1917 "protect[ed] this information, but only in a limited way."377 They went
on to state that under the Act "unauthorized revelation of information of this
kind can be penalized only if it can be proved that the person making the
revelation did so with an intent to injure the United States."378 The House
Report concluded:
The present bill is designed to protect against knowing and
willful publication or any other revelation of all important informa-
tion affecting United States communication intelligence operations
and all direct information about all United States codes and ciphers .371
The committees clearly assumed that cryptographic information was covered
by 793 and that "revelation" of it was proscribed, if done with intent to injure
the United States. Thus, the committees must have interpreted the 1917 Act's
culpability standard as tantamount to a purpose requirement, since communi-
cation to the enemy is implicit in general publication, and therefore knowledge
of injury to the United States can be assumed although the purpose of publica-
tion may be different.
The enactment of section 798 accordingly supports our understanding of
the culpability standards of, section 794 and subsections 793(a) and (b).
Passage of a special statute to protect communications intelligence information
from "knowing and willful publication" also reflects a reasonably narrow un-
derstanding of subsection 1(d) of the 1917 Act. The committees' understand-
ing of section 1(d) is entirely speculative. About all that can be said is that
the passage of 798 is consistent with a narrow reading of subsection 1(d) ,
either as applicable only to current government employees,380 or as embodying
the restrictive Espionage Act culpability standard through the word "will-
fully," or as reaching communications but not publication, or because the "not
entitled to receive it" phrase had never been implemented, leaving 1(d) with-
out force. Thus, section 798 is consistent with our conclusion that Congress
377. H.R. REP. No. 1895, 81st Cong., 2d Sess., at 2 (1950) ; S. REP. No. 111, 81st
Cong., 1st Sess., at 2 (1949).
378. Id.
379. H.R. RaP. No. 1895, 81st Cong., 2d Sess., at 2 (1950).
380. Both Committees assumed that nothing in the Espionage Act of 1917 would
prohibit former government employees from disclosing cryptographic information ac-
quired during public service:
As the matter now stands, prevention of the disclosure of information of
our cryptographic systems, exclusive of State Department codes, and of com-
munication intelligence activities rests solely on the discretion, loyalty, and good
judgment of numerous individuals. During the recent war, there were many
persons who acquired some information covered by this bill in the course of
their duties. Most of these individuals are no longer connected with the services
and are not now prohibited from making disclosures which can be most damaging
to the security of the United States. They are subject to the temptations of
personal gain and of publicity in making sensational disclosures of the personal
information within the purview of this act.
H.R. REP. No. 1895 at 2; S. REP. No. I 1 l at 2.
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did not understand subsection 1(d) to accomplish broad prohibitions on any
and all communications of defense information to persons out of the line of
Executive authority.
Section 798 is also an interesting example of Congress' approach to pub-
lication controls at the time of the revision of subsection 1(d). It represents a
conscious narrowing by Congress of sweeping proposals to criminalize dis-
closure of defense information. What Congress refused to do in 798 is as
important as what it did do. The Joint Congressional Committee for the
Investigation of the Attack on Pearl Harbor had urged Congress to prohibit
revelation of any classified information ;a81 however, the House Judiciary
Committee rejected such an extensive prohibition on publication. Section 798,
the committee said, "is an attempt to provide just such legislation for only a
small category of classified matter, a category which is both vital and vulnerable
to an almost unique degree."332 Even with respect to the narrow category of
cryptographic information, section 798 represents a conscious narrowing of
suggested coverage. The initial proposal, according to the committee, would
have penalized the "revelation or publication, not only of direct information
about United States codes and ciphers themselves but of information trans-
mitted in United States codes and ciphers."383 Such a measure would have
prohibited the publication of a great number of military and diplomatic dis-
patches sent by the Government to its overseas posts. The committee, however,
reported out a bill that covered only information from foreign governments
intercepted by cryptographic techniques. In the words of the Committee:
Under the bill as now drafted there is no penalty for publishing
the contents of United States Government communications (except.
of course, those which reveal information in the categories directly
protected by the bill itself). Even the texts of coded Government
messages can be published without penalty as far as this bill is con-
cerned, whether released for such publication by due authority of a
Government department or passed out without authority or against
orders by personnel of a department. In the latter case, of course, the
Government personnel involved might be subject to punishment by
administrative action but not, it is noted, under the provisions of
this bill .384
381. The Report of the Joint Committee urged:
Based on the evidence in the Committee's record, the following recommendations
are respectfully submitted: . . . That effective' steps be taken to insure that
statutory or other restrictions do not operate to the benefit of an enemy or other
forces inimical to the Nation's security and to the handicap of our own intel-
ligence agencies. With this in mind, the Congress should give serious study to,
among other things, . . . to legislation designed to prevent unauthorized sketching,
photographing, and mapping of military and naval reservations in peacetime; and
to legislation fully protecting the security of classified matter.
REPORT OF THE JOINT COMMITTEE ON THE INVESTIGATION OF THE PEARL HARBOR ATTACK.
S. Doc. No. 244. 79th Cong.. 2d Sess. 252-531 (1946).
382. H.R. REP. No. 1805. 81st Cong., 2d Sess.. at 2 (1950).
383. Id. The proposals referred to were S. 805. 79th Cong. ; S. 1019. 80th Cong. ;
S. 2680, 80th Cong.
384. Id.
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With the bill limited to a narrow category of highly sensitive information,
and with concern for public speech having been thus respected by the com-
mittee, it is no wonder that section 798 was supported by the American So-
ciety of Newspaper Editors 385 The House passed the bill without debate,386
and the Senate with virtually none 387
Is it likely that Congress could have contemporaneously evidenced such
concern for the values of public debate in the context of communications in-
telligence information-surely among the most sensitive categories of defense
information-and at the same time intended subsections 793(d) and (e)
to accomplish sweeping controls on all communications of any information
related to the national defense? It is possible, of course, that Congress was
operating on entirely inconsistent premises in adopting section 798 and, four
months later, subsections 793(d) and (e). We believe, however, that Con-
gress' evident concern in narrowing section 798 supports the statements in
the legislative history of subsections 793(d) and (e) that indicate sweeping
controls on public speech about defense matters were not intended.
C. The Photographic Statutes: 18 U.S.C. ?? 795, 797 and 50 U.S.C. App.
? 781
Section 797 of Title 18 expressly proscribes publication of a category of
material whether or not undertaken with intent to injure the United States.
Section 797's prohibition is derived from section 795 which prohibits the
making of any "photograph, sketch, picture, drawing, map, or geographical
representation" of "vital military installations or equipment," following their
designation by the President "as requiring protection against the general dis-
semination of information -relative thereto," unless the duplication is autho-
rized by appropriate authority and submitted for censorship 388 The offense is
punishable by one year's imprisonment. Section 797 implements section 795
385. See remarks of Senator Hunt, 95 Cotvc. REC. 2774 (1949).
386. 96 CONG. REC. 6082 (1950).
387. The Senate debates on 798 add little. Senator Hunt explained the bill was
proposed out of fear that persons no longer in the government might reveal communica-
tions intelligence information "for personal gain," and because "the present laws are not
adequate in this particular respect." He emphasized that the bill "would not control in any
way the free dissemination of information which might be transmitted in code or cipher."
95 CONG. REC. 2774-75 (1949).
388. 18 U.S.C. ? 795 (1970). Section 795 provides:
(a) Whenever, in the interests of national defense, the President defines
certain vital military and naval installations or equipment as requiring protection
against the general dissemination of information relative thereto, it shall be
unlawful to make any photograph, sketch, picture, drawing, map, or graphical
representation of such vital military and naval installations or equipment without
first obtaining permission of the commanding officer of the military or naval
post, camp, or station, or naval vessels, military and naval aircraft, and any
separate military or naval command concerned, or higher authority, and promptly
submitting the product obtained to such commanding officer or higher authority
for censorship or such other action as he may deem necessary.
(b) Whoever violates this section shall be fined not more than $1,000 or
imprisoned not more than one year, or both.
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by making it an offense, also punishable by one year's imprisonment, to "re-
produce, publish, sell or give away" any "photograph, sketch, picture, drawing,
map, or graphical representation" of any vital military or naval installation,
as defined by the President under section 795, unless the picture has been
marked as censored by appropriate military authority.389 No ulterior intent
is required by either statute. Although sections 795 and 797 appear to be
narrow provisions, since their enactment in 1938, Presidents have consistently
defined the key language, "installations and equipment," very broadly 390 The
current Executive Order defines "vital military and naval installations or
equipment requiring protection against the general dissemination of informa-
tion relative thereto" as comprehending, in addition to expected places and
hardware,
f a]ll official military, naval, or airforce books, pamphlets, documents,
reports, maps, charts, plans, designs, models, drawings, photographs,
contracts, or specifications which are now marked under the authority
or at the direction of the President, the Secretary -of Defense, the
Secretary of the Army, the Secretary of the Navy, or the Secretary
of the Airforce as "top secret", "secret", "confidential" or "restricted"
and all such articles or equipment which may hereafter be so marked
with the approval or at the direction of the President.391
This broad definition of equipment has never been subject to judicial scrutiny,
and there are no reported prosecutions under these interlocking statutes and
the implementing Executive Order. If the Order is valid, section 797 would
appear to bar any publication of a classified military document, as opposed to
information contained therein, assuming that copies constitute a "photograph,
sketch, picture, drawing, map, or graphical representation" of the original.
Would a Xerox copy qualify? We believe the provisions dealing with manner
of copying should be construed broadly. The limits on the statute's scope
should be found in objects that are subject to restraint, not artificial constric-
tion of the manner of copying.
The Justice Department chose not to rely on section 797 in the Pentagon
Papers case, despite the New York Times' challenge that there was no statute
389. 18 U.S.C. 1 797 (1970). Section 797 provides:
On and after thirty days from the date upon which the President defines any
vital military or naval installation of equipment as being within the category
contemplated under section 795 of this title, whoever reproduces, publishes, sells,
or gives away any photograph, sketch, picture, drawing, ntap, or graphical
representation of the vital military or naval installations or equipment so defined,
without first obtaining permission of the commanding officer of the military or
naval post, camp, or station concerned, or higher authority, unless such photo-
graph, sketch, picture, drawing, map, or graphical representation has clearly
indicated thereon that it has been censored by the proper military or naval
authority, shall be fined not more than $1,000 or imprisoned not more than one
year, or both.
Section 796. unimportant for our purposes, prohibits the use of an aircraft as an aid in
violating section 795. 18 U.S.C. 1 796 (1970).
390. Exec. Order No. 8381, 5 Fed. Reg. 1147 (1940).
391. Exec. Order No. 10104, 15 Fed. Reg. 597 (1950).
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on the books barring publication of the documents. Whether that decision re-
flected doubt that the Papers were "official military" documents or that the
Executive Order would survive judicial scrutiny, or simply resulted from
oversight in the press of that litigation, we cannot know.
Judging whether the statutory phrase "vital military installations or
equipment" may be defined to include documents presents the problem, famil-
iar under the espionage statutes, of drawing inferences from skimpy legislative
materials. A letter from the War and Navy Departments to the Senate Com-
mittee on Military Affairs proclaimed that the purpose of the proposal that
became sections 795 and 797 was to:
permit more effective control of the activities of free-lance motion-
picture and still-picture operators in vital military and naval instal-
lations, where the intent of the photographer is not necessarily so
flagrant as that contemplated under [section 793]392
The House committee report accompanying the same proposal, however, spoke
in broader terms:
The Committee is of the opinion that this measure is necessary to
prevent important facts regarding our national-defense installations
from falling into the possession of persons who, through ignorance
of their significance, or hostile intent, would permit them to be used
to the detriment of the United States 396
In both reports, however, the focus is on installations rather than on informa-
tion not connected directly to secret places and hardware.
The fact that sections 795 and 797 occasioned very little debate and no
references to the wisdom of controls on publication suggests that Congress
did not understand that those bills would operate to bar publication of all
classified military documents.394 Indeed, the establishment, without discussion,
of precisely the sort of prior review system that so worried Congress in 1917
seems inexplicable except on the assumption that the only matters governed
by the bill were photographs, not then clearly a matter of first amendment
concern.395 Moreover, since the enactment of sections 795 and 797, proposals
to broaden government control of information have been advanced, and sec-
tions 795 and 797 have never been asserted to take care of the matter 396
392. The letter is set out in S. REP. No. 108. 75th Cong.. 2d Sess. 2 (1938).
393. H.R. REP. No. 1650, 75th Cong.. 2d Sess. 1 (1938).
394. The cursory House debates are found at 83 CONG. REc. 70-72; the Senate passed
the statute without debate. 81 CoNI:. REc. 1534.
395. Responding to questions exactly on this issue, Rep. Edmiston stated that the
(then) present law prohibited sketches of our coastal defenses, hut without a penalty, the
only sanction being the admonition of a soldier: ":Mister, move on." The purpose of S. 1485
was to provide penalties for the taking of pictures of our national defenses, both in this
country and in our possessions. There was no hint of any First Amendment concerns.
83 CoNG. REc. 71-72.
396. On this point, it is interesting to note that in describing the authority for the
government document classification program the REPORT OF THE U.S. COMMISSION ON
GOVERNMENT SECURITY (1957) noted that Exec. Order No. 10104 "covers information
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Indeed, Congress was willing to enact the cryptography bill only after it was
amended to remove criminal sanctions for publishing government documents
that had been transmitted in code.387 Thus, the language of sections 795 and
797, and their legislative history, cast strong doubt on the validity of the
Executive Order.
On the other hand, arguments in favor of a broad construction of equip-
ment can be made. First, the applicable executive definition was given early
and has survived subsequent congressional tinkering with the law. These are
factors that traditionally argue for upholding a regulation,308 although here
they are perhaps of less weight in light of the traditional tension between
Congress and the Executive over government information policy and the lack
of publicized litigation over the scope of the Act. Second, a classified document
describing how to repair a complex radar unit can easily be considered part
of a soldier's "equipment," and if that is granted, why draw the line to ex-
dude classified instructions or reports on the best manner of carrying out
aerial bombing or counterinsurgency campaigns? Third, publication of a docu-
ment, as opposed to merely the information contained therein, may compromise
certain types of codes and allow a good team of cryptographers to unravel all
other messages sent during a given period, although that consideration may
well be thought foreclosed by Congress' express refusal to extend section 798
to cover such publication."
The preceding arguments, however, go primarily to the question whether the
broad Executive Order makes sense, and not to whether Congress has in fact
enacted a statute which authorizes it. On balance, we are unable to find in the
legislative record any evidence that Congress so intended. On the assumption
that Congress intended sections 795 and 797 to apply narrowly to graphical
representations of military installations and equipment in the usual sense, pas-
sage of these sections in 1938 adds further force to the conclusion that Congress
did not understand the Espionage Act of 1917 to prohibit publication of de-
fense information. Photographs of "vital" military installations surely con-
stitute information respecting the national defense. Indeed, the perceived need
for sections 795 and 797 supports a narrow reading of section 1(d) and the
interpretation of the culpability requirements of the-other provisions that we
have adopted.
In 1942, Congress passed 50 U.S.C. App. ? 781. a second prohibition on
photographing military property, because of perceived gaps in the general
classified by the agencies of the military establishments" at 159. In contrast, the re;,.,rt',
discussion of criminal sanctions assumes 795's limitation to photographing and sketching.
Id. at 618.
397. See text accompanying note 384 supra.
398. See, e.g., Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, .11
(1933); Zemel v. Rusk, 381 U.S. 1 (1965), Cammarano v. United States, 358 U.S. 411:1
(1959).
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espionage statutes and in sections 795 and 797.399 Applicable during the time
of national emergency we have enjoyed since 1950,400 section 781 prohibits
knowingly photographing or sketching any military property or place whatso-
ever, unless authorization has been received. Although the statute does not
prohibit disclosure of any sort, the legislative history indicates that the provi-
;ion was enacted to prohibit the taking of photographs which were later pub-
lished.401 The espionage statutes were considered inadequate because they
required "the actual proof of intent to injure the United States" and photog-
raphers seeking publication have no such intent.402 Sections 795 and 797 were
seen as inadequate because they did not authorize the President to define "an
entire military or naval reservation as requiring protection against the general
dissemination of information relative thereto."
D. 50 U.S.C. ? 783(b)
Brief mention should be made of the prohibition on disclosure by Govern-
ment employees of classified information to foreign agents and members of
Communist organizations. This provision was passed as section 4(b) of the
399. SO U.S.C. App. 1 781 (1964) provides:
Whoever, except in performance of duty or employment in connection with the
national defense, shall knowingly and willfully make any sketch, photograph,
photographic negative, blueprint, plan, map, model, copy, or other representation
of any navy yard, naval station, or of any military post, fort, camp, station,
arsenal, air-field, or other military or naval reservation, or place used for
national-defense purposes by the Departments of the Army or the Navy, or of
any vessel, aircraft, installation, equipment, or other property whatsoever, located
within any such post, fort, camp, arsenal, airfield, yard, station, reservation or
place, or in the waters adjacent thereto, or in any defensive sea area established
in accordance with law; or whoever, except in performance of duty or employ-
ment in connection with the national defense, shall knowingly and willfully make
any sketch. photograph, photographic negative, blueprint, plan, map, model,
copy, or other representation of any vessel, aircraft, installation, equipment, or
other property relating to the national defense being manufactured or under
construction or repair for or awaiting delivery to the Departments of the Army
or the Navy or the government of any country whose defense the President
deems vital to the defense of the United States under any contract or agreement
with the United States or such country or otherwise on behalf of the United
States or such country, located at the factory, plant, yard, storehouse, or other
place of business of any contractor, subcontractor, or other person, or in the
waters adjacent to any such place, shall be punished as provided herein.
400. 50 U.S.C. App. 1 785 (1969).
401. H.R. Rep. No. 2189, 77th Cong., 2d Sess. 1 (1942).
402. Id. The Senate Report on the bill quotes a letter from Secretary of War
"titnson which stated that the Espionage Act of 1917:
prohibits the making of photographs, sketches, etc., of military and naval prop-
erty where there exists intent to use the information obtained to the injury of
the United States or to the advantage of a foreign nation. Frequently, however,
photographs of military and naval property are made by persons who have no
intention of injuring the United States or of aiding a foreign nation, yet such
photographs if published or if they otherwise become available to the public
generally may result in prejudice to the national defense. The proposed bill
Titters front the Espionage Act in that proof of intent to injure the United
States or to aid a foreign nation will not be necessary to support a conviction.
S. Rep. No. 606, 77th Cong., 1st Sess. 2 (1941).
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Internal Security Act of 1950, which also brought subsections 793(d) and (e)
into their present form.404 As codified in 50 U.S.C. 783(b), it provides:
It shall be unlawful for any officer or employee of the United
States or of any department or agency thereof, or of any corporation
the stock of which is owned in whole or in major part by the United
States or any department or agency thereof, to communicate in any
manner or by any means, to any other person whom such officer or
employee knows or has reason to believe to be an agent or representa-
tive of any foreign government or an officer or member of any Com-
munist organization as defined in paragraph (5) of section 782 of
this title, any information of a kind which shall have been classified by
the President (or by the head of any such department, agency, or
corporation with the approval of the President) as affecting the secu-
rity of the United States, knowing or having reason to know that
such information has been so classified, unless such officer or em-
ployee shall have been specifically authorized by the President, or by
the head of the department, agency, or corporation by which this
officer or employee is employed, to make such disclosure of such in-
formation.
Subsection 783(b) is an important strand in the web of statutes governing
revelation of defense secrets, although it has little bearing on proper construc-
tion of the espionage statutes. In the important Scarbeck case, the provision
was construed to cover employee communications of classified material whether
or not classification was proper in substance, so long as the manner of classifi-
cation follows the procedural guidelines established by applicable Executive
Orders.404 It is clear from both the legislative history and this authoritative
judicial construction that the sweep of the information subject to the statutory
prohibition was thought justified by its narrow applicability with respect to
actors and recipients.405 No particular reading of the espionage statutes is im-
plicit in the passage of 783(b), however, because 783(b) covers any classified
information while the espionage statutes cover only material which a jury finds
"related to the national defense." But it is notable that even with respect to a
provision aimed solely at Government employees. Congress in 783(b) only
prohibited communication to a very narrow category of recipients. The legisla-
tive history nowhere suggests that such communication would be deemed to
have taken place through disclosure of classified information to the press, fol-
lowed by widespread publication.
E. The "Restricted Data" Statutes: 42 U.S.C. ?? 2271-81
The interesting provisions which protect "restricted data 11406 concerning
atomic weapons or energy from communication or disclosure to unauthorized
403. 64 Stat. 991 (1950).
404. Scarbeck v. United States, 317 F2d 546, 558 (D.C. Cir.), cert. denied, 374 U.S.
856 (1963).
405. Id. at 559: Judge Washington's opinion for the D.C. Circuit contains an ad-
mirable treatment of the legislative history of 783(b), and we see no need to duplicate
his efforts here.
406. "Restricted data" is defined in 42 U.S.C. 2014(y) as:
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persons are of little assistance in construing the general espionage statutes,
although they are of intrinsic significance in assessing controls on publication
of defense information. Section 2274 sets out two differently graded offenses,
the more severe being communication or disclosure of "restricted data" to
anyone "with intent to secure an advantage to any foreign nation," and the
second covering the same communication "with reason to believe such data
will be utilized to injure the United States or to secure an advantage to any
foreign nation."407 The split of the culpability standards in these two subsec-
tions, and the different grading-in contrast to the culpability standards of
the espionage statutes-indicate that recklessness, and perhaps negligence, with
respect to injury or advantage is sufficient to violate these provisions. No
purpose to injure or advantage presumably need be shown to establish a
violation of the lesser offense. Section 2277 makes criminal knowing disclosure
of restricted data to any person not authorized by the Atomic Energy Com-
mission, but applies only to present and former Government employees or
contractors.408 Other sections make criminal receipt of restricted data with
intent to injure the United States or to secure an advantage to any foreign
nation,40a and tampering with restricted data with like intent.410
One provision of possible relevance to the injunction proceeding against
the New York Times is section 2280,411 which authorizes injunctions against
threatened violations of any of the criminal provisions governing restricted
data. Presumably, section 2280 authorizes an injunction against a present or
former Government employee planning on publishing himself, or revealing to
a newspaper, restricted'data. Such disclosure would violate section 2277. It is
not clear, however, whether a newspaper could be enjoined from publication.
Newspapers are not subject to section 2277, unless they are in conspiracy with
the disclosing employee, and therefore are not subject to injunction by virtue
of that substantive offense. Moreover, nothing in the legislative history bears
on the question whether publication should be considered a communication
"to any . . . person . . . with reason to believe such data will be utilized to
injure the United States etc," in violation of subsection 2274(b). The argu-
ments for and against such a construction generally follow our consideration
of the meaning of communication in 793(d) and (e) .412
. These provisions and the legislative history which gave rise to them
provide no insights into the meaning of the basic espionage statutes. We
all data concerning (1) design, manufacture, or utilization of atomic weapons;
(2) the production of special nuclear material; or (3) the use of special nuclear
material in the production of energy, but shall not include data declassified or
removed from the Restricted Data category pursuant to section 2162 of this title.
407. 42 U.S.C.1 2274 (1970).
408. 42 U.S.C. ? 2277 (1970).
409. 42 U.S.C. 3 2275 (1970).
410. 42 U.S.C. 4 2276 (1970).
411. 42 U.S.C. $ 2280 (1970).
412. See text following note 277, supra.
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mention them briefly here to complete our overview of other statutes governing
particular areas of information relating to the national security.
VIII. CONCLUSION: Room FOR IMPROVEMENT
The basic espionage statutes are totally inadequate. Even in their treat-
ment of outright spying they are poorly conceived and clumsily drafted. The
gathering and obtaining offenses of subsections 793(a) and 793(b) have no
underlying purpose that could not be served by more precise definition of at-
tempts to violate the transmission offenses of subsection 794(a). No subsection
of the general provisions of sections 793 or 794 has an easily understood culpa-
bility standard. Subsections 794(a), 793(a) and 793(b) employ "intent or
reason to believe information is to be used to the injury of the United States
or to the advantage of any foreign nation." Surely, however, Congress did not
wish to subject negligent conduct to the death penalty by using the words
"reason to believe" ; nor is it clear what is meant by "is to be used" or "ad-
vantage" and "injury. "
Subsection 793(c) is another puzzle. The culpability required turns on
the meaning of the phrase "for the purpose aforesaid." The two sections im-
mediately preceding it, subsections 793(a) and (b), state that conduct done
"for the purpose of" obtaining information respecting the national defense,
and with intent or reason to believe, is criminal. In light of the prior use of
"purpose" and "intent" as separate requirements, the common-sense reading
of subsection 793(c) is that "for the purpose aforesaid" means only "for the
purpose of obtaining national defense information" and not "intent and reason
to believe." Yet all the evidence we have found indicates agreement by both
Congress and the Executive Branch that subsection 793(c) requires the same
culpability as subsections 793(a) and (b).
Then, there are the mysteries of the term "willfully" in subsections 793
(d) and (e) and the added twist that a special "reason to believe" culpability re-
quirement that allegedly protects in special fashion those who disclose "in-
formation," but not documents, is itself a problematic distinction. The phrase
adds content to the law, however, only if the rest of the statute is read so
broadly as to be clearly unconstitutional. Finally, there is 794(b)'s intent
standard, which can be given a clear interpretation-intent means conscious
purpose-only by making the statute paradoxical. Why did Congress choose
to subject publications to controls pursuant to a standard that so rarely will
be met? Why should actions taken by publications with the purpose of further-
ing foreign interests by disclosing national defense secrets not be criminal ex-
cept in time of war? In light of this confusion about the culpability standards.
it is somewhat ironic to recall the confident assertions in Gorin that the vague
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parameters of "national defense information" may be ignored because scienter
is required.
The difficulty in finding the proper application of the laws to clandestine
espionage is minor compared to the incredible confusion surrounding the issue
of criminal responsibility for collection, retention, and public disclosure of de-
fense secrets. In essence, a choice must be made between giving effect either to
broad statutory language designed in the Executive Branch or to the consid-
erable evidence spread over a half-century that Congress wanted much more
limited prohibitions. The choice is particularly difficult since the evidence of
congressional intent is not absolutely clear. Issues were not precisely under-
stood by lawmakers who were often unenlightened and at cross-purposes with
one another over the meaning of basic terms. Nevertheless, on the issue of the
criminality of public debate, one proposition is, in our view, unquestionable:
neither the Congresses that wrote the laws nor the Executives who enforced
them have behaved in a manner consistent with the belief that the general es-
pionage statutes forbid acts of publication or conduct leading up to them, in
the absence of additional and rarely present bad motives.
Regardless of the proper construction of the current statutes, it is time
for clarification by legislation that treats the problem anew. The ambiguity of
the current law is tolerable only because the limits of the right to disclose
and publish have been so rarely tested. This pressing to the limits is, in a sense,
the deeper significance of the publication of the Pentagon Papers. It symbolizes
the passing of an era in which newsmen could be counted upon to work within
reasonably well understood boundaries in disclosing information that politicians
deemed sensitive. As remarkable as the constant flow of leaked information from
the Executive Branch since the classification programs were implemented4xs is
the general discretion with which secret information has been used414 (attesting
to the naturally symbiotic relationship between politicians and the press). The
New York Times, by publishing the Papers, did not merely reveal a policy de-
bate within the Executive Branch ; it demonstrated that much of the press was
no longer willing to be merely an occasionally critical associate devoted to
common aims, but intended to become an adversary threatening to discredit
not only political dogma but also the motives of the nation's leaders. And if the
Times should be discreet. some underground newspaper stands ready to pub-
lish anything that the Times deems too sensitive to reveal.415
413. Sec THE NEW YORK TIMES COMPANY V. UNITED STATES: A DOCUMENTARY
HISTORY 397 (Comp. by J. Goodale, 1971) (affidavit of Max Frankel) (1971).
414. The most famous recent case is the New York Times' decision not to report
the upcoming Bay of Pigs venture. S. UNGAR. THE PAPERS AND THE PAPERS 101-02
(1972). More significant perhaps, the United States fought World War II without any
official censorship of the press.
415. Thus, Ramparts printed claims that the United States has had remarkable
success in breaking the codes of the U.S.S.R. a matter of great importance if true. See
U.S. Electronic Espionage: A Memoir, RAMPARTS, August, 1972, at 35.
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This changing role of the press is a necessary counterweight to the
increasing concentration of the power of government in the hands of the
Executive Branch. There are, however, aspects to the development that are
troublesome in the context of national defense secrets. We reject the utopian
notion that there are no defense secrets worth keeping and that every aspect
of national security should be disclosed to facilitate adequate public comprehen-
sion of the policy choices to be made. Yet technology makes document copy-
ing ever more simple. As the lower levels of the executive bureaucracy, shut
off from real participation in decision-making, are racked by the same conflicts
about the ends and means of foreign policy that characterize the wider com-
munity, criminal sanctions assume greater significance in the protection of the
Government's legitimate secrecy interests. Paradoxically, the likely conse-
quence of the law's failure to give weight to security considerations would be to
augment the strong tendency to centralize power into fewer hands, because
only a small group can be trusted to be discreet.
If regulation of publication is necessary, it is far better for Congress to
do the job than to permit the Executive Branch to enforce secrecy by seeking
injunctive relief premised upon employee breach of adhesion contracts. In the
recent Marchetti case,418 a former C.I.A. agent was enjoined from publishing,
without prior agency approval, accounts of his experience as an intelligence
agent 417 He had signed an agreement as a condition of employment saying
that he would never reveal "information related to the national defense."418
Although the policy of requiring government officials, past and present, to
remain silent may be wise, it is not a question that ought to be relegated to
judicial enforcement of executive contracts, thereby excluding from policy
formation the one branch most entitled to decide. Only the fact that the
416. United States v. Marchetti, 466 F2d 1309 (4th Cir.), cert. denied, 93 S. Ct.
553 (1972).
417. The Court held that the C.I.A. might disapprove publication only of matters
that were both classified and had not been publicly disclosed. But "rumor and speculation
are not the equivalent of prior disclosure. . . ." 466 F.2d at 1318. Opportunity for judicial
review of the propriety of classification was denied. Id.
418. 466 F.2d at 1312. The agreement stated, in part:
1. I. Victor L. Marchetti, understand that by virtue of my duties in the Central
Intelligence Agency, I may be or have been the recipient of information and
intelligence which concerns the present and future security of the United States.
This information and intelligence, together with the methods of collecting and
handling it, are classified according to security standards set by the United
States Government. I have read and understand the provisions of the espionage
laws. Act of June 25. 1948. as amended, concerning the disclosure of information
relating to the National Defense and I am familiar with the penalties provided
for violation thereof.
2. I acknowledge, that I do not now, nor shall I ever possess any right, interest.
title or claim, in or to any of the information or intelligence or any method of
collecting or handling it, which has come or shall come to my attention by virtue
of my connection with the Central Intelligence Agency, but shall always recog-
nize the property right of the United States of America, in and to such matters.
The agreement does not reflect current law on either our, or apparently the C.I.A.'s.
reading of it. Ser Memorandum of the Central Intelligence Agency entitled "The
Espionage Laws" by M. G. Miskovsky, Assistant General Counsel. 1961. (Copy on file
at Columbia Law Library).
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Government will so rarely have advance notice of intent to publish keeps the
Marchetti precedent for injunctive relief from becoming a dangerous alterna-
tive to the necessity of legislative clarification.
The opportunity for careful reevaluation of the espionage problem is at
hand, since Congress is now considering the recodification and reformulation
of the federal criminal law. Few undertakings deserve greater support. The
present federal criminal law suffers generally from the confusion and defects
that inevitably occur when major problems in the law of crimes requiring con-
ceptual clarity and overall design are left to the ad hoc responses of successive
Congresses.419 But revision is a task of awesome complexity, particularly as
to matters like espionage where the underlying problems have not been ex-
plored in the course of recent efforts to revise state criminal codes. Unfortu-
nately, the espionage proposals currently before Congress as part of S. 1420
and S. 1400,421 the Nixon Administration's latest proposal, are inadequate to
reconcile the conflicting interests at stake. Insofar as there have been five dif-
ferent espionage proposals422 in the last two years, and there are surely more
to come, general discussion of the approach of the two most recent revision
proposals seems more appropriate than detailed analysis.
The basic problem with S. 1 is that too much of the sloppy drafting of the
old law is perpetuated and the new formulations do not resolve the problems
that perplexed former Congresses. S. 1 treats the matters now covered by
sections 793-98 with the following provisions:
? 2-5B7. Espionage
(a) OFFENSE.-A person is guilty of espionage if:
(1) with knowledge that the information is to be used to
the injury of the United States or to the advantage of a foreign
power, he gathers, obtains, or reveals national defense informa-
tion for or to a foreign power or an agent of such power ; or
(2) with intent that it be communicated to the enemy and
in time of war, he elicits, collects, records, publishes, or other-
wise communicates national defense information.
(b) ATTEMPT.-Without otherwise limiting the applicability of
section 1-2A4 (criminal attempt), any of the following is sufficient
to constitute a substantial step under such section toward commis-
sion of espionage under subsection (a) (1) : obtaining, collecting, or
419. Cf. Wechsler, The Challenge of a Model Penal Code, 65 HARV. L. REv. 1097
(1952).
420. S. 1, 93d Cong., 1st Sess. ?? 2-5A1. 2-5B7-8 (1973). The bill, reputedly the
lengthiest ever introduced, is derived, with substantial changes, from the FINAL REPORT OF
TILE NATIONAL CoaiMISSION ON REFORM OF FEDERAL CRIMINAL LAWS. PROPOSED NEW
FEDERAL CRIMINAL CODE (1971).
421. S. 1400, 93d Cong., 1st Sess. It 1121-26 (1973).
422. In addition to the current S. 1 and S. 1400, see ?? 2-5B7-8 in the Committee
Print leading to S. 1, the FINAL REPORT OF THE NATIONAL COMMISSION ON REFORM
OF FEDERAL CRIMINAL LAWS. PROPOSED NEW FEDERAL CRIMINAL CODE. ?? 1112-1116
(1971) and the COMMISSIONS STUDY DRAFT OF A NEW FEDERAL CRIMINAL CODE ?? 1113-6
(1970).
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eliciting national defense information, or entering a restricted area to
obtain such information.
(c) GRADING.-The offense is a Class A felony if committed in
time of war or if the information directly concerns military missiles,
space vessels, satellites, nuclear weaponry, early warning systems or
other means of defense or retaliation against attack by a foreign
power, war plans, or defense strategy. Otherwise it is a Class B
felony.
? 2-5B8. Misuse of National Defense Information
(a) OFFENSE.-A person is guilty of an offense if in a manner
harmful to the safety of the United States he:
(1) knowingly reveals national defense information to a
person who is not authorized to receive it ;
(2) is a public servant and with criminal negligence vio-
lates a known duty as to custody, care, or disposition of national
defense information, or as to reporting an unauthorized removal,
delivery, loss, destruction, or compromise of such information ;
(3) knowingly having unauthorized possession of a docu-
ment or thing containing national defense information, fails to
deliver it on demand to a Federal public servant entitled to re-
ceive it ;
(4) knowingly communicates, uses, or otherwise makes
available to an unauthorized person communications informa-
tion ;
(5) knowingly uses communications information ; or
(6) knowingly communicates national defense information
to an agent or representative of a foreign power or to an officer
or member of an organization which is, in fact, defined in section
782(5), title 50, United States Code.
(b) GRADING.-The offense is a Class C felony if it is committed
in time of war. Otherwise it is a Class D felony.
The key term "national defense information" is explicitly defined:
"(N)ational defense information" means information regarding:
(i) the military capability of the United States or of a
nation at war with a nation with which the United States is at
war;
(ii) military or defense planning or operations of the
United States ;
(iii) military communications, research, or development of
the United States ;
(iv) restricted data as defined in section 2014, title 42,
United States Code ;
(v) communications information ;
(vi) in time of war, any other information which if re-
vealed could be harmful to national defense and which might
be useful to the enemy :
(vii) defense intelligence of the United States, including
information relating to intelligence operations, activities, plans,
estimates, analyses, sources. and methods.
In our opinion, enactment of this proposal would do no more than
perpetuate the current confused state of the law. Consider the espionage
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offenses of section 2-5B7, which for the most part restates the current section
794. Like subsections 794(a) and (b), the two offenses created are nearly
identical. Section (a)( I) makes knowledge that national defense information
"is to be used" to the injury of the United States or to the advantage of a
foreign nation the test of whether a crime is committed. Does one who
publishes "reveal . . . for or to a foreign power" within the meaning of the
law? If not, it is only because 2-5B7(a) (2) says "publishes" while (a) (1)
does not. Whatever the proper resolution, it is a mistake for recodification to
treat such an important issue so opaquely. Similarly, publishing is explicitly
made criminal only in time of war and only where there is "intent that [the in-
formation] be communicated to the enemy." The proposed code defines "in-
tentionally" to require a conscious objective to cause the particular result.423
Consequently, as in 794(b), the purported coverage of publication is largely
illusory because very few newspapers intend to inform the enemy.
The new offense of "Misuse of National Defense Information" in section
2-5B8 is also perplexing, although we can be thankful that it departs from the
models set out by section 793, particularly in its dispatching with the entitle-
ment concept. Is publishing or conduct incident thereto meant to be covered?
What is the meaning of "in a manner harmful to the safety of the United
States?" Aside from issues of 'vagueness, is this phrase intended to require
that the prosecutor prove that because of the actor's conduct consequences
harmful to United States' safety actually resulted, were likely to result or
night conceivably have come about ?424 To ignore clear resolution of these
issues is to be satisfied with a statute whose basic design defies interpretation.
The Administration's proposals in S. 1400 do not suffer from these
ambiguities. Their problem is that they are so excessively restrictive of public
debate that their unconstitutionality, let alone their misconceptions of appro-
priate public policy, is, in our view, patent. Five offenses, too lengthy to be
fully set out, are defined: espionage,425 disclosing national defense informa-
tion,426 mishandling national defense information,427 disclosing classified in-
formation '428 and unlawfully obtaining classified information.429 The proposed
espionage offense is drafted with remarkable breadth: -
(a) OFFENSE.-A person is guilty of an offense, if, with intent that
information relating to the national defense be used, or with knowl-
edge that it may be used, to the prejudice of the safety or interest
423. S. 1,93d Cong., 1st Sess. ? 1-2A1(a)(2) (1973).
424. Whether the statute is intended to achieve the results it does is problematic.
Note for example, that it would repeal section 793(e)'s retention offense. In addition,
the treatment of communications information, earlier defined as "national defense in-
formation" is either redundant or hopelessly opaque.
425. S. 1400, 93d Cong., 1st Sess. ? 1121 (1971).
426. Id. at ? 1122.
427. Id. at ? 1123.
428. Id. at ? 1124.
429. Id. at ? 1125.
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1082 COLUMBIA LAW REVIEW [Vol. 73:929
of the United States, or to the advantage of a foreign power, he
.knowingly:
(1) communicates such information to a foreign power ;
(2) obtains or collects such information for a foreign power
or with knowledge that it may be communicated to a foreign
power ; or
(3) enters a restricted area with intent to obtain or collect
such information for a foreign power or with knowledge that
it may be communicated to a foreign power.
Insofar as "communicate" means "to make information available by any
means, to a person or to the general public,"4$0 the statute makes it an offense
to collect national defense information knowing that it may be published 431
"National defense information" is defined slightly more narrowly than in S. 1,
but does include:
[I] nformation, regardless of its origin, relating to:
(1) the military capability of the United States....
(5) military weaponry, weapons development, or weapons research
of the United States....
(9) the conduct of foreign relations affecting the national de-
fense .... 432
Given the scope of "national defense information," the result would be to
paralyze newspaper reporting on national defense affairs. We strongly doubt
that the nation needs a far reaching official military secrets act. Surely it does
not need one that makes the offense a capital crime when committed "during
a national defense emergency" or when information concerns a "major weap-
ons system or [a] major element of defense strategy,"4ss and a class B felony
otherwise.434
Similarly, the rest of the offenses, with the exception of obtaining classified
information,435 are defined in terms so broad that they mark an abrupt
departure from statutory precedents. Any knowing communication of defense
information to an unauthorized person would be made a class C or D felony,
430. Id. at ? 1126(c).
431. It is difficult for us to believe that this was intended. It nonetheless is the
technical result of the statute in that-he who "obtains or collects" information "with
knowledge" that it "may" be used to the advantage of a foreign power, and knowing that
it "may be communicated to a foreign power" commits the highest offense.
432. S. 1400, 93d Cong., 1st Sess. ? 1121, ? 1126(g) (1971).
433. See ? 2401(a) (1) (B) . The death penalty is mandatory if the defendant "know-
ingly created a grave risk of substantial danger to the national security" and mitigating
factors not likely to be present in publication are absent.
434. Id. at ? 1121(b). Class B felonies are punishable by a maximum of 30 years
imprisonment. 12301 (b) (2).
435. Id. at ? 1125. It applies only to agents of foreign powers. Classified information is
defined, ? 1126(b), as "information, regardless of its origin," which is marked by statute,
or pursuant to executive order or implementing rules or regulations as "information requir-
ing a specific degree of protection against unauthorized disclosure for reasons of national
security."
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and unauthorized retaining of defense information would be a class D felony,
both without regard to any intention or knowledge respecting injury to the
United States.4311 Disclosure of classified information by a present or former
federal employee, except to a "regularly constituted" Congressional committee
pursuant to "lawful demand," would be a Class E felony437 and no defense
that information was improperly classified would be permitted.438
The consequence of S. 1400's enactment would be to prohibit virtually
all public and private speech about national defense secrets, leaving to prosecu-
tors and juries to choose victims among those who engage in reporting and
criticism of our defense and foreign policies. Like Senator Cummins in 1917,
we can only marvel that legislation at once so sweeping and so stringent could
be seriously proposed. We trust that it will not be enacted.
What should be done? In our reasonably open society, Congress and the
newspapers reveal large amounts of defense information that would be difficult
and exceedingly expensive for interested foreign governments to collect on their
own. That form of foreign aid to adversaries is, however, a necessary conse-
quence of the nation's deepest values .439 We do not accord much significance to
protests that as a general matter we make it easy for others to assess our
strength"? because our strength is so awesome. The more difficult questions
concern the protection of secrecyrin narrower premises where specific objec-
tives, opportunities, and advantages are lost if particular types of secrets are
publicized.441 Unfortunately, to distinguish these matters-indeed to know
whether they can effectively be distinguished-requires more knowledge than
we have about intelligence affairs and the extent to which truly important
security interests have been compromised by well-meant disclosures. We have
nonetheless come to certain conclusions that, while general, may assist legis-
lators and others in their consideration of the problems.
No legislation can be adequate unless it recognizes that at least three
problems must be treated independently: spies, government employees and
ex-employees, and newspapers and the rest of us.442 Both the present espionage
436. Id. at ?? 1122(b), 1123(b). Class C felonies are punishable by a maximum of 15
years imprisonment ? 2301(b) (3) ; class D felonies are punishable by a maximum of 7
years imprisonment, ? 2301(b) (4).
437. Id. at ? 1124(a) (c) (e). Class E felonies are punishable by a maximum of 3
years imprisonment ? 2301(b) (5). How Congress can "demand" what it is ignorant of
is left unexplained.
438. Id. at ? 1124(d).
439. Cf. United States v. Robel, 389 U.S. 258, 264 (1967) : "Implicit in the term
'national defense' is the notion of defending those values and ideals which set this
Nation apart."
440. See, e.g., A. DtrLLES, THE CRAFT OF INTELLIGENCE 241-247 (1963).
441. The archtypical case is revelation that a foreign code has been broken. Appar-
ently, developments in codes make that prospect increasingly unlikely where sophisticated
equipment may be used. For a fascinating discussion of code-breaking, see D. KAHN,
THE CODESREAKERS (1967).
442. Additionally, it may be wise to differentiate employees from ex-employees, and
public revelations from private ones.
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1084 COLUMBIA LAW REVIEW [Vol. 73:929
statutes and the proposals of S. 1 and S. 1400443 are fatally defective in that
they ignore the necessity of separate considerations of the distinct interests in
each of these contexts.
The essence of classical espionage is the individual's readiness to put his
access to information of defense significance at the disposal of agents of
foreign political organizations. Granted that the harm that results from his
conduct is a function of the importance of the information transferred, there
should be no hesitation, regardless of the banal quality of defense information in-
volved, to punish the citizen whose priorities are so ordered or foreigners whose
job it is to risk apprehension. We believe, therefore, that the information pro-
tected against clandestine transfer to foreign agents should be defined broadly,
probably more broadly than in current law. In this context, we see no dis-
positive objection to making knowing and unauthorized transfer of classified
information to foreign agents an offense, without regard to whether informa-
tion is properly classified.444 That a spy might earn complete immunity by
stealing secrets so serious that their significance cannot be disclosed in court-
a clear possibility under current law,445 and also under S. 1 and S. I400-is an
outcome that should be avoided, if possible.
Two objections may be made to this broadened approach. First, it puts
considerable reliance on the capacity to adjudicate accurately whether persons
are in fact acting as 'agtnts of foreigners. If the prosecutor need not demon-
strate the significance of the transferred information, there is an enhanced risk
that casual disclosures of improperly classified information to foreign friends
may be wrongly deemed espionage. Nothing in the literature, however,
suggests to us that this is a serious problem, and it may be further minimized
by insistence upon the actor's awareness that his disclosures are intended for
primary use by foreign political organizations 44e Second. and more troublesome
to us, is the fact that for deterrence purposes the penalties for espionage are
and should be exceptionally steep. Denying improper classification as a defense
may expose an offender whose conduct has produced no real harm to the most
serious penalties the law permits. To avoid this result the law might expressly
authorize in camera sentencing proceedings, or, preferably to us, make the
offense substantially less serious if the Government is unprepared to disclose
the underlying significance of the material transferred.
Quite different issues are posed by revelations of defense secrets by
government employees or ex-employees. Prohibiting employees from telling
443. In structure, S. 1400 is preferable to S. I in that it does differentiate government
employment as a problem to be treated separately from espionage proper. Its failure is that
it treats newspapers with a severity appropriate for spies.
444. We thus disagree with the analysis in I WORKING PAPERS OF THE NATIONAL
COMMISSION o\ REFORM OF FEDERAL CRIMINAL LAWS, 454-55 (1970).
445. Sec text following note 134 supra.
446. If necessary, special protection for government servants authorized to negotiate
with foreign governments might be created.
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1973] ESPIONAGE STATUTES
what they know at pain of criminal punishment obviously restricts the flow
of information to the public and impairs the quality of public debate. Nonethe-
less, to say that any government employee or former employee is privileged to
reveal anything he chooses at risk of sanctions no greater than dismissal
accords too little weight to the need for security.
In our opinion some middle ground should be sought. Although statutes
are no doubt exceptionally difficult to formulate, we think that the following
principles provide appropriate guides to future legislative efforts. First, em-
ployee disclosures to Congress should be protected more rigorously than in
S. 1400.447 Second, no matter what information is protected against revelation,
legislation should explicitly provide a justification defense, permitting the
jury either to balance the information's defense significance against its impor-
tance for public understanding and debate, or to consider possible dereliction
of duty by the employee's superiors.448 To do otherwise would not recognize
that the employee serves both the Government and the public.
Third, the information that is protected against employee revelation should
be narrower than that protected against espionage. On this point we strongly
disagree with S. 1400's drafting of simple disclosure proposals more broadly
than espionage provisions, apparently on the misguided notion that since the
penalties are less severe the conduSt covered may be broader 449 Our approach
is the reverse: espionage has no claim to the law's sympathy and excessive
severity is better cured by flexible grading of the offense than by narrow re-
striction of the information protected against transfer, which necessitate Gov-
ernment proof of defense significance. By contrast, informing the public of
what the Government is doing is presumptively desirable. The hard problem
is to find standards to define what limited information cannot be revealed to
the public. Certainly the fact of classification should not be determinative since
substantial overclassification is inevitable given the variety of inducements to
official secrecy460 Improper classification must be a defense, and, if possible,
447. There are obviously exceedingly difficult issues to be resolved here, particularly
insofar as revelation to a particular Senator or Congressman may be merely a conduit
to public revelation immunized by congressional privilege, rather than a prelude to
independent congressional investigation.
448. Any such defenses may result in lengthening trials and compromising security
further. Nonetheless, there are clearly instances where broader duties to the public war-
rant the disclosure of defense information and where the issue would be confused by
characterizing the problem as one of improper classification.
449. To be sure, the employee has obligations of loyalty, but so does the citizen
contemplating espionage.
450. For recent reports on overclassification, see Hearings on U.S. Government
Information Policies and Practices-The Pentagon Papers-Before a S,tbcom,n. of the
House Comm. on Government Operations, 92d Cong., Ist Sess. pts. 1-3, 7 (1971) (Moor-
head Hearings).
There are numerous possible treatments of the problem of overclassification, par-
ticularly automatic declassification of nearly everything after an arbitrary time period.
For proposals. see MCHucn. PROPOSED ALTERNATIVE.- TO THE PRESENT SYSTEM OF
CLASSIFYING GOVERNMENT DOCUMENTS. Id. at 2293. Nonetheless, given that there are
multiple reasons, some good and some bad, why Government officials want secrecy, we
think substantial overclassification is inevitable.
r
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1086 COLUMBIA LAW REVIEW (Vol. 73:929
protected information should be defined even more narrowly and without
direct reference to classification. Thus, even if the Constitution permits
penalizing employee or ex-employee disclosure of any information that the
Government is not legally obligated to reveal,*at we think such a secretive
position should be rejected as a matter of policy. Fourth, the offense of re-
vealing protected information should be graded to respect the differences
between loose talk and intentional efforts to compromise security.
Finally, there are the problems of the press and those who disclose defense
information in the course of public and private discussion. The claim may be
made that lines should be drawn in the same place . as for government em-
ployees.4 2 It may seem paradoxical to provide the press with the privilege of
publishing the fruits of a crime, a result that inevitably occurs if more informa-
tion is protected against employee disclosure than against publication. Never-
theless, it seems to us that an asymmetry of obligations between public servants
and the rest of us should be preserved, at least until such time as far-reaching
institutional changes are made in congressional access to defense information.
Congress has no assured access to security information and no sense of entitle-
ment to it, as the inability of the Foreign Relations Committee to secure the
Pentagon Papers .453
Consequently; one cannot at the present time have confidence that more
than a single elected official, if that, has given consent to whatever policy may
be compromised by newspaper disclosure of defense information. Given that
situation, doubts whether to protect the political efficacy of disclosure rather
than stress its adverse security consequences should be resolved on the side
of public debate. Peacetime prohibition of newspaper disclosure and citizen
communication should be left to the most narrowly drawn categories of defense
information such as the technical design of secret weapons systems or informa-
tion about cryptographic techniques. Even as to such narrow categories of
defense-related information, however, it is as true today as it was in 1917 that
any item of information could, in some circumstances, have significance for
public debate which outweighs any adverse effect on national security. Thus,
prohibitions against newspaper and citizen disclosure applicable only to very
451. Cf. Environmental Protection Agency v. Mink, 93 S. Ct. 827 (1973).
452. Cf. Henkin, The Right to Know and the Ditty to Withhold: The Case of the
Pentagon Papers 120 U. PA. L. REV. 271, 278-79 (1971).
453. Sec S. UNGAR, supra note 3 at 69-71. Two intriguing aspects of the New York
Times litigation were first, the Government's prompt concession in court that much of the
material could he immediately declassified, and second, the claim that considerable time
should be granted to winnow out the truly important information among that which was
potentially sensitive. Both propositions provide insight on the seriousness with which
Senator Fulbright's repeated requests were treated.
This is a central difference between the secrecy situation in Great Britain and our
own. The British Official Secrets Act provides far greater protection for Government
secrecy than do our espionage laws. But in Great Britain, the persons with principal
executive authority and access to secrets sit as elected officials, and their comments in
Parliament are privileged, providing greater assurance against policies gone wild.
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1973] ESPIONAGE STATUTES
narrow categories of information should also provide for a justification defense
turning on superceding importance for public debate.
The dangers endemic to the administration of such a justification defense
should not be minimized. Juries may be inclined to accord weight to the
respectability and influence of a media defendant in assessing the justification
for publication of the particular defense information. Selective enforcement is
a real danger. Moreover, predictability will largely be sacrificed with a result-
ing chill on publication that should be justifiable in the legal sense. But
uncertainty in the application of legal standards to publication of defense
information is the price of rejecting simplistic solutions to the problem. Neither
prohibiting nor privileging the publication of categories of defense informa-
tion across the board does justice to the vital and competing social interests in
secrecy and public revelation.
We have lived throughout the present century with extraordinary con-
fusion about the legal standards governing publication of defense information.
Clarification of the standards is now called for. However, uncertainties in the
administration of theoretically sound legislative solutions should not force us
to choose between extreme and simplistic policies. If the choice is narrowed to
extremes, we hope that our current lawmakers exhibit the fortitude of their
predecessors in 1917 who resiged the sweeping proposals of the Wilson
Administration.
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