E. SUBSECTIONS 793 (D) AND (E): CONCLUSION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP94B00280R001200140015-5
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 32
• Document Creation Date: December 22, 2016
• Document Release Date: March 23, 2009
• Sequence Number: 15
• Publication Date: January 1, 1973
• Content Type: MISC

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C0i UM1 L411' REVIE? ' / J 0l. 73:92q
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 (louse debates touched on only two aspects of the 793
revision. First, the speakers seem clearly to have understood that the eui_
pability requirement of sub:cctiuns (cl) 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.27 Second, subsec-
tions (d) and (e) in landcin 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 "crintinals" without
their doing any wrongful act, and referred the 1.-Touse to Senator McCarran's
published exchange of correspondence which' "answered objections of this
nature."
What does the le c,latiye history of the 1950 amendments amount to?
Through all the confusion and iniuentirn to basic questions, two general
themes emerge. First, fears that the new subsections 793(4) and (e) might
make criminal actions tai:cn by nevvspal'ers in "tile 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 1 nguage. 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(c1) and
(e) were not sweeping prohibitions against ncwsp;.ipe?' 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 \,Vhitaker 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" ill 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, c.y., the Comments of Cong. Tackctt, id. at 3408.
272. Id. at 5494.
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ESPIONAGE STATUTE_ S 10, 1031
tended from three to ten years.273 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?
Jj S ubsections 793(d) and (c) : 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 oil
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 ?"
273. 34 Stat. 1005 (1950).
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(3) What constitutes protecte ' "information" under the subsections,
and what culpability is required before its transfer is criminal?
(4) What makes a piece of pager containing defense information a
"document" or other enumerated iteni 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.274 This
conclusion, however, is not compelled. The originals were not purloined and
the Government's proprietary interest iii the documents was maintained ; all
that was lost was the srcrecv of information contained in them. Even if an
exact copy is a "document" as I ustice \Vhite 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?
'"That 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 mysteriois because the statutes are
so sweeping as to be absurd. If courts turn in 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 ain'. When concerns were
voiced that these provisions might have some effect on the press, Congress
did not respond by analysis or amendment of the hills 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(4) 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 intei equtrement."" '11te 1950 legislatiive recorc1 vas 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.276 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 lgceter,tl ccrostructicttt of
the statute's culpability standards. Regardless of whiclr al prn:u It 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" itents
he plans to publish? Are his communications to others in the coarse of \yritin
a story criminal? Is his source in Government an offender, and, if so, is the
newsman a conspirator in that offense or an accomplice to it if lie 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 Tidies, 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 Tiot 's 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 opinion277 and Justice Douglas later indicated his support for that
position.278 The argument is that the draftsmen perceived a difference bc,"wecil
communication and publication and that they intended to make nets spapcr
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, 733-4b ( 1971 )? !!:,it
Congress in 1917 intended to bar prior restraints but allow post-publicatir.n prosecnti.;ns
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 \o hat its source. But
there is nothing indicating that the 1917 Congress saw this as a key distinction.
276. Sec text following note 334 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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1034 COLUMBIA LA1V REVIEW [Vol. 73:929
communication, transmittal or delivery of defence information to foreigners,
while 794(b) prohibits both communication and publishing in time of
war with intent to reach the enemy. .\loreover, the rejected subsection 2(c)
as initially drafted prohibited both conttutrrtication and publishing and way
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. 't'
The argument that the draftsmen intentionally wrote "publishes" into
the statutes when they wished to prohibit it does not, despite the statutory
structure, convince its. We have not found a single clear statement in the
lengthy legislative history of these bills that the word "communicates" does
not embrace publishing. hor example, that was not the ground on which
'i0 nor was it the
Senator Kilgore's concern for newspapers was met in 1..50;2
apparent understanding of those who framed the crytographic bill, section 795.
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. `peakers frequently used the words "communicate
or publish" in sequence :s' they also consistently used the words "publishes,"
''publications" and ''pubiisliing'' 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 nteanitt; of "communicates" came primarily from
speakers who questioned the wisdom, whatever was done to newspapers,
of making private communications criminal.=s_ Most importantly, at no point
279. See text accompanying notes 370. 388 infra.
230. Had any of the respondents to Senator hil> itre's letter believed that publishing
was not covered by sections 1 ((!.I and (e) because not m,.:;ttioned, they would surely
have mentioned it.
281. See, e.g., 55 CoNG. krc. 781 (1917) (ketnarl s of Senator Cummins).
282. The principal comments in the Senate are at 55 C'tN0. kicc. 873 (Remarks of
Senator Overman) (The word publishing is broad enough to cover the word coat-
municate. Communication of plans to a person, is a publication to that person) ; 55 CoNG.
Rtu. 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
tine sense of the law. If this were confined to lit: newspapers, it would still be
objectionable, but not so objectionable as it is in its present forni.
In the House, similar points were made. Sce, e. i., the following interchange:
AN. Sttetu.Ery. 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.
hilt. Wiott% it would he very little profit to prohihit the publication of a thing
and then let a man verbally go upon the stump and proclaiut it to the public by
word of mouth.
Mie Siirtit.ry. That would be more than a communication. The gentleman is
a:;stinting that "Coll m11ntic:tc" is the only word wherebp you can define the of-
c,., I movest that it is broader than we need.
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did anyone defend the idea that a newspaper might lawfully "publish" what
an ordinary citizen was prohibited from "communicating."-
That no one confirmed an understanding of "comunutticate" 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 I
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.28r' 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-
ntent. 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 l (d) and 2(a) does not prove the
converse.2815
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. ;ututnaly 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.
Igue) (" autything 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. Sec 54 Coac, REC. 2064 (1917).
280. 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 commlumica-
tion to foreigners with intent. or reason to believe that information is to he 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 COLU:IM1 T 41V RLVIL-V LVOI. 15:919
ho
ubli
h
Th
p
s
e person w
es
to prohibit reading them to a friend at home.
widely may of course be more likely to influence public decision-making, but
the person who communicates to a friend niay well he 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 salve 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 he that' publication, to be immunized
from the subsections by \irtt:e .,f congressional intent, requires involvement
of the media. It might he argued that conimnnicatiolls 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 comnlt:rlication::. I_ euv ing aside first amendment and
equal protection objection S. as well as congressional concern for ordinary
citizens, this interpretation would necessitate guidelines as to who is a pub-
lisher and who are new, smen. The statute contains no such standards and
posing them by judicial construction is, in our opinion, virtually impossible.287
Finally, any effort to dI?stinguish publication by the media from communi-
cation would be vastly complicated by the fact that such publishing inevitably
involves many preliminary conununications and retentions. It, too, is not an
event but a process.'t',~ 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 cony
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 conmtunications
and retentions-conduct by persons necessary to accomplish the sort of pub-
lication Congress wished to protect-bc held a violation of the statutes?
It was with reference to this problem that f ustice White's dicta in New
York Times v. United States went astray, in our opinion. Without intimating
his views on the correctness of fudge Gtu'fein'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.259 That approach, in our opinion, can rest on no sound interpretation
S. 665. 682 (1972).
408 U
Haves
v
ltranzbur
287
C
.
,
g
.
.
f.
288. Cf. Roe v. Wade. 93 S. lt. 705, 731 (1973) ; FREUND ct al., REPORT OF THE
c
STUDY GROUP ON THE CA`F: LOAD OF THE SUI'IEAIIE COURT I ( 1)72).
289. 403 U.S. 713, 738 n.9.
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1u3I
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
;Itt 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.e90
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.201 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 "conimunica-
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 goveru-
nxYlt 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 situ..^.tio it, 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 wit Ii 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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lications. Congress was quite con 'red 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 consegnent.ly be treated as equally legitimate.
If publication and communication or retention cannot be satisfactorily
distinguished as nodes of conduct in the context of these provisions, how can
subsections 793(d) and (c) be read to give cffect to Congress' intention not to
make participation in debate about defense platters criminal? A reading of
the statutes must be found which can operate generally; in other words,
publication roust be excluded from coverage on an analysis of the statutes that
applies equally to acts of conmlunication and retention. \Ve must turn, there-
fore, to other elements of 793(d) and (e) in the effort to discover such a
reading.
2. Cul ability. (a) II'ill Wily. If our conclusions concerning "publish-
ing" are accepted-that Congress had no sl)eci:tl understanding of "cotnnluni-
cate, deliver or transmit" that automatically excluded it-then application of
sections 793(4) and (e) to public revelation of defense secrets, and conduct
preliminary thereto, hinges primarily on the meanin of the term "willfully."
Can Sonic sense of the tern] he found which accords reasonable respect to both
the language and structure of the st:tttltes. tile legislative history of the par-
ticular terni, and the evidence that Congress did not contemplate making
criminal revelations in the cotrrs.e of public debate except in the most limited
circumstances' \\`e 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.statirlg his own understanding.
"\Villful" is one of the law's chanlelecls, taking on different meanings in
different contexts.-'!'-" it ma) be construed to require merely awareness of tile.
physical facts of one's behavior ;-' `tinder other eircnnlstanc cs, it nuav mean
awareness that cotudttct is illegal,-"'' or, inure generally, that it be undertaken
with had illotivc??", In statutes where r1?IILIrl:lllly tltrils upon the causing of a
particular type of harm, uvulhully may reunite specillc intent to cause that
harm.?"c The different nuances that courts have read into the tern are largely
attributable to judicial desire to restrict particular criminal statutes. Narrow
292. See generally Wcinreb, Extended Note 13, "11-'i/lfulhtcss," in I WORKING PAPERS
Or?rrlE NATIONAL COMMISSION ON l'EiORM OF 1'1?:I1F:1tAt. CRIMIXA1. LAws 148 (1970). See
a!sc Weinrcb, Comment on Basis of Criminal Liability; Culpability; Causation: id. at
105, 123: "There may be no word in the Federal criminal lexicon which has caused as
touch confusion as the word 'willfully' (or 'willful')." Tile Model Penal Code limits
use of the term to describing how it should he 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. Scc, c.g., United States v. Murdock, 290 U.S. 389 (1933).
295. See, e.g., Felton V. United States. 96 U.S. 699 (1871).
296. See. e.g., Screws v. United States, 323 U.S. 91 (1945) ; F?Fartzel 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 Olfully" are especially common where legis?n is at the
boundaries of constitutional power-as where statutes bear upon free ex-
pression.207 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.'-"" 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 MO revision did introduce some confusion on this point into the
legislative history. The l xecutive draftsmen of 793(d) and (c) 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-
ruertt by requiring proof of illicit ulterior purpose. Consistent with this, the
Mouse Report,--9 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. REC. 3604-05 (1917) (remarks of Senator Cummins) (proposed
amendment of the censorship provision, ? 2(c), to require "willful" violation. Eftect
conceived to be preservation of ignorance of law defense) ; 55 Coxc. 1:ec. 1717-18 (1917)
(remarks of Representative Graham) (Sections 1 and 2 of H.K. 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 [? 31] says") ; id. at 2064 (remarks of Senator Sterling)
("The clement 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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. hers of registered Connnuuist organization to save a broadly drawn statute).
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302. Toe extent to which courts may revise inartfully drawn legislation to effectuate
policies which might have beat chosen but were not chosen clearly is a difficult issue. Sec,
e.g. Scales v. United States, 367 U.S. 203, 211 (1961) (strain but not pervert). Compare
Dennis v. United Stat,s, 341 U.S. 494, 499-500 ( 1931) ("intent to overthrow . .. the
government of the United States by force and violence as speedily as circumstances would
hermit" 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 he rightfully detained and who should he set at la ?ge."
"hhe problem with section 793(d) is that it is not limited to government employment
but rather speaks to "lawful" possession, a term which catches touch more than current
government employees. Cf. Apthcker 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 mcm-
Trent's letter accompanying the proposed legislation,300 referred to the absence
of an intent requirement. in section 793(4), 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 ar: in close relation to the
Government-argues for a higher standard of culpability in section 793(c)
where coverage is gencra1301 "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
empioyment.302 The Hcusc (;otniuittee'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. Tire 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 section>, ('d 1 and ( e ) v,-ere., insofar as culpability is
concerned, like sections (a) and (h). Do these strands afford a basis, despite
the statutory lanlmagc and the countervailing evidence of legislative intent,
for construing "willftill ness" 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. Rec. 441-42 (1949).
301. See text at note 247 srr,'ra.
 1.973]
ESPIONAGE STATUTES ? 1041
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.3?3
A narrow understanding of "willfully" in subsections 793(d) and (c) 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 :a?r' 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."a0? Similarly, in a civil case, Dubin l,'nitc?d
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. ? 2.385 (1970) to require specific
intent to overthrow the Government, even though other provisions expressly rcquir ' i
such intent. But x %c do not think this precedent is compelling in the context of ? 793(d)
and (c). 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 concepts of "teaching" and "advocating" use of force.
183 F.2d 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. ? 793(h). In the Southern District of New York she was
indicted for conspiracy, attempt to communicate in violation of 18 U.S.C. ? 793(d) (section
1(d) of the 1917 Espionage Act), and attempt to communicate in violation of 18 U.S.C.
? 794(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. ? 794(a). She was acquitted of the charges under 18 U.S.C.
? 793(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 dews ex machine for such matters-
presumed jury leniency or compromise. See United States v. Coplon, 185 F.2d 629 (2d Cir.
1950) riling Dunn v. United States, 284 U.S. 390, 393 (1932).
Perhaps the most ominous aspect of C.opton is its assumption that a recipient of
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. ? 793(d) and (c) are coustrucd
to apply only to government employees, application of conspiracy doctrines to reeipicnc
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. ? ?93(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..
? 1124 (1973), which precludes prosecuting unauthorized recipients of classified informa-
lion disclosed by government employees or former employees as accomplices or con-
spirators. The proposals are discussed at text following note 425 infra.
305, "(S)pecific intent that the information he used to the injury of the United
States and to the advantage of a foreign nation." 813 F. Supp. at 911.
306. Id,
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.~1
E1
3 {r":
qN
ik.
4r
s`
r.i
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. . utes,'--? the court assumeu that pro' retention of radar devices that
"related to the national defense," erro' ally 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 'prtpcr 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(4) and (c) 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.308 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 hint an
offense, other elements of the cringe 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 obsctire juornal? At what point is the
mistake of "fact" better characterized as a misapprehension of the legal
307. 289 F.2d 651 (1961). Sec also United States v. Sawyer, 213 F. Supp. 38 (1963).
308. The Service understood Senator Kilgore to he asking whether the offenses
created absolute liability and responded that they did not.
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standard gove defense-relatedness, and what ought to e consequence
of such niisappItension ?
Although Senator Cummins believed that conduct was not "willful"
when clone under mistake of law,300 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 Gorin 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) ti
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
.'y
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
i
l
mater
a
s he communicated did "relate to the nati
l d
f
"312
ona
e
ense,
there could be no issue of vagueness. The Constitutional problem is simply
whether Congress may enact proscriptions that broad. On the other haul(], 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 vague.313 wen granting that current
309. See 54 CONC. REc. 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
fur espionage proper.
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4aw requires that information be "secret," in the sense that the matter must
be one the Government has sought to keep secret,:' 14 and intimates that it must
be information susceptible to injurious or advantageous use,316 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.3111 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 f r orn 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.317 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 re.atcs to the national de-
fense but believes that its military significance is far outweighed by its
importance for public debate. In that belief, lie communicates it widely. A
construction of willfullness that required awareness that the contemplated con-
duct was defined as illegal would not 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 importace. Such material should and
314. See text accompanying note 141 supra.
315. See text accompanying note 124 supra.
3i6. An interesting problem is whether classification, purportedly done in the
interests of national defense, serves as adequate notice insofar as overclassification is so S
admittedly widespread.
317. See United States v. Rubel, 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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1973] , rtuiv/iui . I AI v7 CJ 1045
would be covered 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 then, 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.319 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 (lid 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
319. See generally Henkin. The Right to Know a1;d the Duty to Withhold: Tire
Case of the Pentagon Papers 120 U. PA. L. Rrv. 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).
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.
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1 Q.(i
evidence that neither Congress, nor for that matter the Executive, has con-
strued subsections 793(d) and. (c) to bear upon conduct done to participate
in public debate. We all 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 Inateria
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 I (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 anlendnlent.\s a practical platter, 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 Informriafion. 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 unit' 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 3=0 If we are correct, adding
320. Sec text accompanying note 125 supra.
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1973] 0 ESPIONAGE STATUTES ? 104;
"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 .3222 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 given 323 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 (h), 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-
tnents 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,
(,ties 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. Sec 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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of the Iegislative 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 tltis readin;, 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; h) a word.-for-word copy on personal
stationery of a document owned by the Governnmment ; c) a paraphrase on
personal stationery of a government-owned document ; (1) 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 of icer, a reporter writes: "After full review of the
evidence, the Air Force has secretly dctcrnined that the new plane does not
meet its velocity specifications") : e) the private writings of a government
employee incorporating information lie has been told ("Dear Mother: Next
month we invade Normandy") : f) the private tvritintis 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 I3-52'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 he one hand, the test
of what constitutes a "document'' or a "note" could b2 simply a matter of
whether information happens to he 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 onr 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 w?is expressly limited to matters "belong
Government. See text at note 226 supra. For the Senate discussion, sec text following
note 207supra ing to" the
.
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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 I (d) of the 1917 law,325 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 inforn a-
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; (1) 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 clown word for word ?
Drawing a line between "document" and "information" may also be si,-
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 clown 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
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to those associated with "docums." 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 I (d). Although in 1917 Congress-
men talked as though it were,: 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, iw what process may it be
shown that a recipient was "not entitled to receive it Again, there is nothing
Substantial enough in the legislative rcc rd to make any particular answer
defensible.
4. Entitled to Receive It. Construction of the entitlement language of
793(4) 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 cwnnnnnication offenses. the latter. Yet in a prosecution
under these acts, how can either term he given effect ? ".untitled to receive" is
not defined in the espionage statutes or in my 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.'?27 Conversely, if one is entitled to receive
information in the absence of `a statute barring its acquisition, the ordinary
citizen again stands on n 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, (lid not intend that the entitlement concept could
326. Sec notes 214-15 supra.
327. Statutes which authorize specific officials to have particular information are
very rare. Sec, e.g., 42 U.S.C. ?? 2161-2163, 2277 which empower the Atomic Energy
Commission to decide who may lawfully have access to "restricted data," as defined in
42 U.S,C.2014(y).
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10.
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
"nut entitled. 113211 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
I (d), read literally, prevented disclosures by persons outside government
employment, and thus not generally subject to executive rules ;129 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.331
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. See text following note 184 supra.
329. Subsection 1(d) applied to person "lawfully or unlawfully having possession of"
any tangible item relating to the national defense.
330. ?'ce text following note 196 sapra.
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? debates, only to be cut, without?;lanation, 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.`" Section 79 of the espionage chapter, enacted
a few months earlier, trade 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 continent of Chairman Celler that "we cannot
allow . valuable classified and outer 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 li, waS eliminated from the 1917 Act and no similar
provision has ever been adopted. Furthermore, the proposition that tile
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 1951.333 after the revision of 793(d) and (e)
331. See text accomip;ulying note 403 infra.
332. Sec text following note 370 infra.
333. General discussions of the history of the system of Executive classification appear
in Developments in the Lass-The tiational Security interest and Civil L'ibertics, 85
H,\Rv. L. REV. 1130, 1189-1243 (1972) [hereinafter cited as Developments] ; Parks.
Secrecy and the Public Interest in Military Affairs, 26 GEO. WnsmI. L. Rev. 23, 46-77
(1957); REPORT OF THE COMMISSION ON GOVERNMENT SECURITY [hereinafter cited as
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into their presentorm, by Executive Order 10290."" This Order con-
tained nothing aimed at implementing the statute's "not entitled" concept.
\othing 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
ivitlt the Federal Government ... to prevent disclosure. "3ar'
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
he 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.:t11?
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 late." 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 7930 ) and (c).
One provision did note that "no person shall be entitled to knowledge or
possession of, or access to, classified security information solely by virt.oe of
kr:eoi5T] pp. 151-172 (1957). There have been numerous Congressional hearings devoted
to the classification system. See, e.g., Commission on Goz.crnment ScrurilY, Hearings on
S. J. Res. 21 Before the Subcomrn. on Reorganiz-ation of the Senate Comm. on Goven:-
nicnt Operations, 84th Cong., 1st Sess. (1955); U.S. Govrrimient Information Policies
and Practices-Tire Pentagon Papers, Hearings before a Subconrnr. of the House Comm.
uon 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. Dez,clopmcuts at 1193. The lllilitar%
classification program was first extended to civilian departments by President i ruinait
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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his office or position, "337 but it 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 it. 338 The next subsection of the
Order stated that " [c] lassified security information shall not be discussed witlt
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,'" but con-
tained no other provisions looking, to the possibility of criminal sanctions for
disclosure of classified "inforination" to unauthorized persons.340 The text of
Executive Order 11,6?:2, 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.""' With
respect to unauthorized disclosures by federal employees, the Order states:
The head of each Department is directed to take prompt and
stringent administrative 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 N .SC 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(0), 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. 10301 states that "[k]nowledge 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 Ihey have been determined to be trustworthy." Section 7, id. at 7053.
341. Exec. Order No. 11652, 37 Fed. Reg. 5209 (1972).
342. Section 13(13), id. at 5218.
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"NATIONAL SECURITY INFORMATION"
Unauthorized Disclosure Subject
to Criminal Sanctions."',
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.341 Significantly, the
Coil mission did not mention sections 793 or 794, even though by citing
sections 795 and 798 it demonstrated awareness of the espionage statutes.315
Furthermore, numerous Executive summaries of classification problems mani-
fest a belief, generally regretted, that violation of the classification system is
not a criminal offense.311i 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. "34
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. REPORT at 158. See also, Developments at 1198.
345. REPORT at 158-59.
346. Sec, e.g., statement of William Florence, Pentagon Papers Hearings at 195;
Morrison, The Protection of Intelligence Data:
Au 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
he 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
(:.erieral Counsel of the C.I.A. when this paper was written) ; Miskovsky, The Espionage
Laws, 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.
Itrrt see statement of William Tompkins, Hearings before a Subcoinnt. on Rcorganioation
of the Senate Committee on Govt. Operation, 84th Cong., 1st Sess. 63 (1955).
347. RETORT 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(4) 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.:? The measure made no progress at all in
Congress, 49 and was abandoned by the Executive as politically untenable 3eo
A similar proposal had hecn advanced in 19-16 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 intellience inioT111atio In 1962, Senator Stennis intro-
,-, a bill to amend section 793 to make disclosures of classified information
a crime, without any narrow inirnt requirement :c The proposal was not
enacted. If the classification system were thou ht 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 svstem 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 anlthorizcd the Presiclc.it to define who is
"entitled to receive" defense information. Furthermore, neither the statutes,
the legislative history, nor the acts of the President sup} ort or point to the
exercise of any such Implicit authority. Second, even if "ens itled to receive it"
may be given meaning by Executive Order despite the deletion of express
authority to define the phrase, its construction mast he 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 atffirinatively authorized" to receive.
Even assuming that the President has implicitly been granted authority to
348. REPORT at 619-20. The Commission's proposed statute is set out id. at 737.
349. Senator Cotton introduced a bill, S. 2417, in the 85th Congress, to implement this
proposal of the Commission, but the bill \vas never rcpwted faiorably 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. REc. 23140-41 (1962).
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define the ternis-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) (1o 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((1) 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 then.
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 'N1cCarran'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 ai ienhnent 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 th>~ Senate of the 64th Congress proved itself
overwhelmingly acquiescent to the Wilson Administration's interlocking
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I proposals for broad information cols. 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 malting 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 comm~inication 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. SALSECTIOti 793(e)
Subsection 793(c) is vet 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, bineprii t, 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 ... .,i63n
As with subsections 793(4) 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. See 18 U.S.C. ? 793(c) (1970).
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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 '354 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.3'1'
Similarly, the 1950 House report on the proposed amendments to section 793
states expressly that subsection (c) requires the prosecutor to prove wrongful
intent ;356 and the same position was taken by the Legislative Reference Service
in their response to Senator Kilgore.357 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 Corte. 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 CoNc,. REc. 2064 (1917).
356. See text at note 247, supra.
357. See text at note 25], supra.
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1060 COl_UM131AA)T' RLVIEIY [Vol. 73:929
past or intended breaches of the espionage laws, bringing into question the
reach of the other statutes. If subsections 1793( ' 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 3a8
VII. OTHER STATUTE'S BEARING ON PUBLICATION OF
DEFENSE I N FORMATION
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 riven 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. l.,urthernmore. given the confusions
of language and history in sections 793 and 794, later statutes that reflect
Congress' understanding of the two general sections are valuable aids in
interpreting them.
A. 18 U.S.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 tilt 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.359
F!cinc is read narrowly so that information the Government has sought to suppress does
not lose its defense-related character despite its disclosure, and if verbatim copies are
"documents," then every person who bought the New York Times to read them violated
18 U.S.C. ? 793(c).
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p. Yardley, a former director of the division of the State Uepartri nt charged
with breaking the diplomatic codes of other nations.:"'" The division was dis-
1,1tded in 1929, apparently on the quaint notion that code-breaking was tin-
ethicad during peacetime. In the same year, after leaving the Government,
yardley wrote a book entitled "The American Plack Chamber," which de-
scribed the Department's code-breaking procedures and included translations
?f 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.
fn late 1932. the State Department learned that Yardley had completed a
second manuscript. Fearing that the second hook 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 lwv a foreign govern-
ment.
The Department's proposed legislation, H.P. 4220:1111 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 C'l:amihrr. 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 Conc. Rix. 5333 (1933).
361. H.R. 4220 provided:
That whoever, by virtue of his employment by the United States, havinz
custody of, or access to, any record, proceeding, map, book, document, paper, or
other thing shall, for any purpose prejudicial to the safety or mterest of the
United States, willfully and unlawfully' conceal, remove, mutilate, obliterate,
falsify, destroy, sell, furnish to another, publish, or otter 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.
Srx. 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
otiice, executive department, or independent establishment of the United States
or blanch 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 Uniecd 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. Rn'.
No. 18, 73rd Cong., 1st Sess. (1933).
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