Reply #12: some statutes and regulations [View All]

[G_j]

(not including perjury or obstruction of justice)

http://www.scoop.co.nz/stories/WO0509/S00403.htm

Disclosing the identity of a covert U.S. agent can be a violation of numerous federal criminal statutes and administrative regulations. Such violations carry with them penalties including imprisonment, fines, termination of employment, and revocation of security clearance.

The following is a list and description of such statutes and regulations.

1. Revealing the identity of certain undercover intelligence officers, agents, informants, and sources

Subsection 421(a) of title 50, United States Code, makes it unlawful for someone, having or having had access to classified information that identifies a covert agent, to intentionally disclose such information to an unauthorized recipient knowing the disclosure identifies the agent and knowing that the government is taking affirmative measures to conceal the agent’s relationship to the United States. The penalty includes a fine, imprisonment for not more than ten years, or both.

Subsection 421(b) makes it unlawful for someone who, as a result of having access to classified information, learns the identity of a covert agent and intentionally discloses any information disclosing that identity to any person not authorized to receive it. The defendant must know that the information disclosed identifies the agent and that the government is taking steps to conceal the identity. The penalty includes a fine, imprisonment for not more than five years, or both.

Subsection 421(c) criminalizes the disclosure of any information that identifies a person as a covert agent as part of a pattern intended to identify and expose such agents and with reason to believe such activities would impair the nation’s foreign intelligence activities. Such disclosure must be to a person not authorized to receive it and be done knowing that the Jonathan Randel, a former Drug Enforcement Administration employee, leaked to the media the fact that the name Lord Michael Ashcroft of Great Britain appeared in the DEA’s money laundering files. In 2002, the Justice Department obtained an indictment against Mr. Randel for violating section 641. Mr. Randel ultimately pled guilty and was sentenced to one year in prison and three years of probation. While he was sentencing Mr. Randel, U.S. District Judge Richard Story stated, “Anything that would affect the security of officers and of the operations of the agency would be of tremendous concern, I think, to any law-abiding citizen in this country.” disclosure identifies an agent and the United States is taking steps to conceal it. The penalty includes a fine, imprisonment for not more than three years, or both.

2. Conveying public money, property or records

Section 641 of title 18, United States Code, makes it a criminal offense to convey anything of value that belongs to the United States. More specifically, it imposes criminal penalties on anyone who “embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys, or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof.” The penalty for a violation of this statute is a fine, imprisonment for not more than years, or both. The Bush administration already has used this statute to successfully prosecute a government official who leaked government information.7

3. Gathering, transmitting, or losing defense information

Section 793(d) of title 18, United States Code, prohibits the unauthorized transmission of any information vital to national defense. It makes it a crime for anyone who has lawful possession of “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicate, deliver, transmit . . . to any person not entitled to receive it.” The penalty for a violation of this law includes a fine, imprisonment for not more than ten years, or both.

4. Gathering or delivering defense information to aid a foreign government

Subsection 794(a) of title 18, United States Code, prohibits the transmission or delivery of any document or information related to national defense to any foreign government or foreign agent. Such conduct is illegal if even the transmission is direct or indirect. The penalty includes death or imprisonment for any term of years.

5. Leaking diplomatic codes and correspondence

Section 952 of title 18, United States Code, imposes criminal penalties on “whoever, by virtue of his employment by the United States, obtains from another or has or has had custody of or access to, any official diplomatic code or any matter prepared in any such code . . . and without authorization or competent authority, willfully publishes or furnishes to another any such code or matter.” The penalty includes a fine, imprisonment for not more than ten years, or both.

6. Communication of classified information by government officer or employee

Subsection 783(a) of title 50, United States Code, prohibits any government officer or employee, without authorization of the President or head of the employing department, from communicating in any manner to any other person whom the officer or employee knows or has reason to believe is an agent or representative of a foreign government any information classified by the President or head of an agency that affects national security. The officer or employee must know or have reason to know that the information was classified. The penalty includes a fine of not more than $10,000, imprisonment for not more than ten years, or both. In addition, the person would be ineligible to hold any office created by the Constitution or laws of the United States.

7. Executive Order 12958

Presidential Executive Order 12958 prescribes a uniform system for classifying, declassifying, and protecting information related to the national defense. It requires each agency head to implement controls over the distribution of classified information. Section 5.5 provides that, if the Director of the Information Security Oversight Office finds that a violation of the Order has taken place, the Director must report to the appropriate agency head so corrective action may occur. Further, sanctions for such violations include: “reprimand, suspension without pay, removal, termination of classification authority, loss or denial of access to classified information, or other sanctions in accordance with applicable law and agency regulation.” Finally, section 5.5 of the Order provides that:

(d) The agency head, senior agency official, or other supervisory official shall, at a minimum, promptly remove the classification authority of any individual who demonstrates reckless disregard or a pattern of error in applying the classification standards of this order.

(e) The agency head or senior official shall: (1) take appropriate and prompt corrective action when a violation or infraction . . . occurs; and (2) notify the Director of the Information Security Oversight Office when a violation . . . occurs.

In effect, any supervisor of an individual with access to classified information must sanction such individual if he illegally discloses the information.

8. Classified Information Nondisclosure Agreement (SF-312)

Prior to gaining access to classified information, a government official or employee must sign a Classified Information Nondisclosure Agreement (SF-312). The Agreement states that breaches (i.e., disclosure of classified information) could result in termination of security clearances and removal from employment.

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The Espionage Act

http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000793----000-.html

TITLE 18 > PART I > CHAPTER 37 > § 793 Prev | Next

§ 793. Gathering, transmitting or losing defense information


Release date: 2005-08-03

(a) 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, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or
(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or
(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense,
(1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
(h)
(1) Any person convicted of a violation of this section shall forfeit to the United States, irrespective of any provision of State law, any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, from any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, as the result of such violation. For the purposes of this subsection, the term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1) of this subsection.
(3) The provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853 (b), (c), and (e)–(p)) shall apply to—
(A) property subject to forfeiture under this subsection;
(B) any seizure or disposition of such property; and
(C) any administrative or judicial proceeding in relation to such property,
if not inconsistent with this subsection.
(4) Notwithstanding section 524 (c) of title 28, there shall be deposited in the Crime Victims Fund in the Treasury all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

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