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CRS: Criminal Prohibitions on the Publication of Classified Defense Information

Author: Jennifer K. Elsea
December 6, 2010

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Amidst a Justice Department investigation weighing whether WikiLeaks has violated U.S. criminal law, this Congressional Research Service report provides an overview of the relevant law as it may apply to pertinent allegations.

The recent online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by the New York Times and other news media have focused attention on whether such publication violates U.S. criminal law. The Attorney General has reportedly stated that the Justice Department and Department of Defense are investigating the circumstances to determine whether any prosecutions will be undertaken in connection with the disclosure.

This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions.

This report will discuss the statutory prohibitions that may be implicated, including the Espionage Act; the extraterritorial application of such statutes; and the First Amendment implications related to such prosecutions against domestic or foreign media organizations and associated individuals. The report will also provide a summary of pending legislation relevant to the issue, including S. 4004.

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