[Congressional Record: February 15, 2011 (Senate)]
[Page S753-S754]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. CARDIN:
S. 355. A bill to improve, modernize, and clarify the espionage
statutes contained in chapter 37 of title 18, United States Code, to
promote Federal whistleblower protection statutes and regulations, to
deter unauthorized disclosures of classified information, and for other
purposes; to the Committee on the Judiciary.
Mr. CARDIN. Mr. President, the current framework concerning the
espionage statutes was designed to address classic spy cases involving
persons who intended to aid foreign governments and harm the United
States. The current framework traces its roots to the Espionage Act of
1917, which made it a crime to disclose defense information during
wartime. The basic idea behind the legislation, which was upheld by the
U.S. Supreme Court as constitutional in 1919, was to stop citizens from
spying or interfering with military actions during World War I. The
current framework was formed at a time when intelligence and national
security information existed primarily in some tangible form, such as
blueprints, photographs, maps, and other documents.
Our nation, however, has witnessed dramatic changes to nearly every
facet of our lives over the last 100 years, including technological
advances which have revolutionized our information gathering abilities
as well as the mediums utilized to communicate such information. Yet,
the basic terms and structure of the espionage statutes have remained
relatively unchanged
[[Page S755]]
since their inception. Moreover, issues have arisen in the prosecution
and defense of criminal cases when the statutes have been applied to
persons who may be disclosing classified information for purposes other
than to aid a foreign government or to harm the United States. In
addition, the statutes contain some terms which are outdated and do not
reflect how information is classified by the Executive Branch today.
Legal scholars and commentators have criticized the current
framework, and over the years, some federal courts have as well. In
2006, after reviewing the many developments in the law and changes in
society that had taken place since the enactment of the espionage
statutes, one district court judge stated that ``the time is ripe for
Congress'' to reexamine them. United States v. Rosen, 445 F. Supp. 2d
602, 646, E.D. Va. 2006, Ellis, J. Nearly 20 years earlier in the
Morison case, one federal appellate judge stated that ``[i]f one thing
is clear, it is that the Espionage Act statutes as now broadly drawn
are unwieldy and imprecise instruments for prosecuting government
`leakers' to the press as opposed to government `moles' in the service
of other countries.'' That judge also stated that ``carefully drawn
legislation'' was a ``better long-term resolution'' than judicial
intervention. See United States v. Morison, 844 F.2d 1057, 1086, 4th
Cir. 1988.
As the former Chairman of the Senate Judiciary's Terrorism and
Homeland Security Subcommittee, I chaired a Subcommittee hearing on May
12, 2010, entitled ``The Espionage Statutes: A Look Back and A Look
Forward.'' At that Subcommittee hearing, I questioned a number of
witnesses, which included witnesses from academia as well as former
officials from the intelligence and law enforcement communities, about
how well the espionage statutes have been working. And since that
hearing, I have been closely and carefully reviewing these statutes,
particularly in the context of recent events. I am convinced that
changes in technology and society, combined with statutory and judicial
changes to the law, have rendered some aspects of our espionage laws
less effective than they need to be to protect the national security. I
also believe that we need to enhance our ability to prosecute spies as
well as those who make unauthorized disclosures of classified
information. We don't need an Official State Secrets Act, and we must
be careful not to chill protected First Amendment activities. We do,
however, need to do a better job of preventing unauthorized disclosures
of classified information that can harm the United States, and at the
same time we need to ensure that public debates continue to take place
on important national security and foreign policy issues.
As a result, today I am reintroducing the Espionage Statutes
Modernization Act, ESMA. This legislation makes important improvements
to the espionage statutes to make them more effective and relevant in
the 21st century. This legislation is narrowly-tailored and balanced,
and will enable the government to use a separate criminal statute to
prosecute government employees who make unauthorized disclosures of
classified information in violation of the nondisclosure agreements
they have entered, irrespective of whether they intend to aid a foreign
government or harm the United States.
This legislation is not designed to make it easier for the government
to prosecute the press, to chill First Amendment freedoms, or to make
it more difficult to expose government wrongdoing. In fact, the
proposed legislation promotes the use of Federal whistleblower statutes
and regulations to report unlawful and other improper conduct.
Unauthorized leaks of classified information, however, are harmful to
the national security and could endanger lives. Thus, in addition to
proposing important refinements to the espionage statutes, this
legislation will deter unauthorized leaks of classified information by
government employees who knowingly and intentionally violate classified
information nondisclosure agreements.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 355
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``The Espionage Statutes
Modernization Act of 2011''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) As of 2011, the statutory framework with respect to the
espionage statutes is a compilation of statutes that began
with Act of June 15, 1917 (40 Stat. 217, chapter 30)(commonly
known as the ``Espionage Act of 1917''), which targeted
classic espionage cases involving persons working on behalf
of foreign nations.
(2) The statutory framework was formed at a time when
intelligence and national security information existed
primarily in a tangible form, such as blueprints,
photographs, maps, and other documents.
(3) Since 1917, the United States has witnessed dramatic
changes in intelligence and national security information,
including technological advances that have revolutionized
information gathering abilities as well as the mediums used
to communicate such information.
(4) Some of the terms used in the espionage statutes are
obsolete and the statutes do not fully take into account the
classification levels that apply to national security
information in the 21st century.
(5) In addition, the statutory framework was originally
designed to address classic espionage cases involving persons
working on behalf of foreign nations. However, the national
security of the United States could be harmed, and lives may
be put at risk, when a Government officer, employee,
contractor, or consultant with access to classified
information makes an unauthorized disclosure of the
classified information, irrespective of whether the
Government officer, employee, contractor, or consultant
intended to aid a foreign nation or harm the United States.
(6) Federal whistleblower protection statutes and
regulations that enable Government officers, employees,
contractors, and consultants to report unlawful and improper
conduct are appropriate mechanisms for reporting such
conduct.
(7) Congress can deter unauthorized disclosures of
classified information and thereby protect the national
security by--
(A) enacting laws that improve, modernize, and clarify the
espionage statutes and make the espionage statutes more
relevant and effective in the 21st century in the prosecution
of persons working on behalf of foreign powers;
(B) promoting Federal whistleblower protection statutes and
regulations to enable Government officers, employees,
contractors, or consultants to report unlawful and improper
conduct; and
(C) enacting laws that separately punish the unauthorized
disclosure of classified information by Government officers,
employees, contractors, or consultants who knowingly and
intentionally violate a classified information nondisclosure
agreement, irrespective of whether the officers, employees,
contractors, or consultants intend to aid a foreign power or
harm the United States.
SEC. 3. CRIMES.
(a) In General.--Chapter 37 of title 18, United States
Code, is amended--
(1) in section 793--
(A) in the section heading, by striking ``or losing defense
information'' and inserting ``or, losing national security
information'';
(B) by striking ``the national defense'' each place it
appears and inserting ``national security'';
(C) by striking ``foreign nation'' each place it appears
and inserting ``foreign power'';
(D) in subsection (b), by inserting ``classified
information, or other'' before ``sketch'';
(E) in subsection (c), by inserting ``classified
information, or other'' before ``document'';
(F) in subsection (d), by inserting ``classified
information, or other'' before ``document'';
(G) in subsection (e), by inserting ``classified
information, or other'' before ``document'';
(H) in subsection (f), by inserting ``classified
information,'' before ``document''; and
(I) in subsection (h)(1), by striking ``foreign
government'' and inserting ``foreign power'';
(2) in section 794--
(A) in the section heading, by striking ``Gathering'' and
all that follows and inserting ``Gathering or delivering
national security information to aid foreign powers''; and
(B) in subsection (a)--
(i) by striking ``foreign nation'' and inserting ``foreign
power'';
(ii) by striking ``foreign government'' and inserting
``foreign power'';
(iii) by inserting ``classified information,'' before
``document'';
(iv) by striking ``the national defense'' and inserting
``national security''; and
(v) by striking ``(as defined in section 101(a) of the
Foreign Intelligence Surveillance Act of 1978)'';
(3) in section 795(a), by striking ``national defense'' and
inserting ``national security'';
(4) in section 798--
(A) in subsection (a), by striking ``foreign government''
each place it appears and inserting ``foreign power''; and
(B) in subsection (b)--
(i) by striking the first undesignated paragraph (relating
to the term ``classified information''); and
[[Page S756]]
(ii) by striking the third undesignated paragraph (relating
to the term ``foreign government''); and
(5) by adding at the end the following:
``Sec. 800. Definitions
``In this chapter--
``(1) the term `classified information' has the meaning
given the term in section 1 of the Classified Information
Procedures Act (18 U.S.C. App.);
``(2) the term `foreign power' has the meaning given the
term in section 101 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801); and
``(3) the term `national security' has the meaning given
the term in section 1 of the Classified Information
Procedures Act (18 U.S.C. App.).''.
(b) Technical and Conforming Amendment.--The table of
section for chapter 37 of title 18, United States Code, is
amended--
(1) by striking the item relating to section 793 and
inserting the following:
``793. Gathering, transmitting, or losing national security
information.'';
(2) by striking the item relating to section 794 and
inserting the following:
``794. Gathering or delivering national security information to aid
foreign powers.''; and
(3) by adding at the end the following:
``800. Definitions.''.
SEC. 4. VIOLATION OF CLASSIFIED INFORMATION NONDISCLOSURE
AGREEMENT.
(a) In General.--Chapter 93 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 1925. Violation of classified information
nondisclosure agreement
``(a) Definitions.--In this section--
``(1) the term `classified information' has the meaning
given the term in section 1 of the Classified Information
Procedures Act (18 U.S.C. App.); and
``(2) the term `covered individual' means an officer,
employee, contractor, or consultant of an agency of the
Federal Government who, by virtue of the office, employment,
position, or contract held by the individual, knowingly and
intentionally agrees to be legally bound by the terms of a
classified information nondisclosure agreement.
``(b) Offense.--
``(1) In general.--Except as otherwise provided in this
section, it shall be unlawful for a covered individual to
intentionally disclose, deliver, communicate, or transmit
classified information, without the authorization of the head
of the Federal agency, or an authorized designee, knowing or
having reason to know that the disclosure, delivery,
communication, or transmission of the classified information
is a violation of the terms of the classified information
nondisclosure agreement entered by the covered individual.
``(2) Penalty.--A covered individual who violates paragraph
(1) shall be fined under this title, imprisoned for not more
than 5 years, or both.
``(c) Whistleblower Protection.--The disclosure, delivery,
communication, or transmission of classified information by a
covered individual in accordance with a Federal whistleblower
protection statute or regulation applicable to the Federal
agency of which the covered individual is an officer,
employee, contractor, or consultant shall not be a violation
of subsection (b)(1).
``(d) Rebuttable Presumption.--For purposes of this
section, there shall be a rebuttable presumption that
information has been properly classified if the information
has been marked as classified information in accordance with
Executive Order 12958 (60 Fed. Reg. 19825) or a successor or
predecessor to the order.
``(e) Defense of Improper Classification.--The disclosure,
delivery, communication, or transmission of classified
information by a covered individual shall not violate
subsection (b)(1) if the covered individual proves by clear
and convincing evidence that at the time the information was
originally classified, no reasonable person with original
classification authority under Executive Order 13292 (68 Fed.
Reg. 15315), or any successor order, could have identified or
described any damage to national security that reasonably
could be expected to be caused by the unauthorized disclosure
of the information.
``(f) Extraterritorial Jurisdiction.--There is
extraterritorial jurisdiction over an offense under this
section.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 93 of title 18, United States Code, is
amended by adding at the end the following:
``1925. Violation of classified information nondisclosure agreement.''.
SEC. 5. DIRECTIVE TO SENTENCING COMMISSION.
(a) In General.--Pursuant to its authority under section
994 of title 28, United States Code, and in accordance with
this section, the United States Sentencing Commission, shall
review and, if appropriate, amend the Federal Sentencing
Guidelines and policy statements applicable to a person
convicted of an offense under section 1925 of title 18,
United States Code, as added by this Act.
(b) Considerations.--In carrying out this section, the
Sentencing Commission shall ensure that the sentencing
guidelines account for all relevant conduct, including--
(1) multiple instances of unauthorized disclosure,
delivery, communication, or transmission of the classified
information;
(2) the volume of the classified information that was
disclosed, delivered, communicated, or transmitted;
(3) the classification level of the classified information;
(4) the harm to the national security of the United States
that reasonably could be expected to be caused by the
disclosure, delivery, communication, or transmission of the
classified information; and
(5) the nature and manner in which the classified
information was disclosed, delivered, communicated, or
transmitted.
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