[Congressional Record Volume 157, Number 24 (Tuesday, February 15, 2011)]
[Senate]
[Pages S754-S756]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      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addition, the statutes contain some terms which are outdated and do not 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

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       (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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