enhancing the penalty for peacetime disclosure of the special class of information referred to in section 1121 (b) (1) (B).

D. Section 1123 (Mishandling National Defense Information)

This section is directed at the mishandling of information relating to the national defense by persons in authorized possession or control of such information, as well as by persons whose possession or control is unauthorized.

Subsection (a) (1) applies whether or not the person's possession or control is authorized, and prohibits recklessly permitting the loss, destruction, theft, or communication to unauthorized persons of the subject information. This section brings forward 18 U.S.C. 793(f) (1), extending its coverage to persons whose possession was not authorized.

Subsection (a) (2), which applies only to persons in authorized possession or control of national defense information, proscribes three kinds of activity which might jeopardize such information: (1) retention or failure to surrender it on demand to a federal public servant authorized to receive it, deriving from 18 U.S.C. 793(d); (2) knowing failure to report promptly its loss, destruction, theft, or communication to a person not authorized to receive it, bringing forward 18 U.S.C. 793 (f) (2); and (3) reckless violation of a duty imposed for the safeguarding of the information, a provision without a direct counterpart in current law.

Subsection (a)(3) applies only to persons whose possession or control is not authorized; they are penalized if they knowingly fail to deliver the information to a federal public servant entitled to receive it, whether or not a demand has been made. This reenacts part of 18 U.S.C. 793 (e).

Except for failure to obey security regulations, which carries a three year penalty, these offenses are punishable by imprisonment for several years, a reduction from the current penalty level of ten years.

E. Section 1124 (Disclosing Classified Information)

This section makes it an offense for a person who is or has been in authorized possession of classified information, or who has obtained such information as a result of his status as a federal public servant, knowingly to communicate such information to a person not authorized to receive it. In a deviation from the current statutes from which it is derived 10 the section applies only to persons who communicate the information; it is explicitly stated in subsection thy that recipients of the information are not subject to prosecution either as accomplices or as conspirators.

"Classified information" is defined in section 1126 in substantially the same terms as those employed in 18 U.S.C. 798 and 50 U.S.C. 783. As under the comparable provisions of current law, it is not necessary to show that the information relates to the national defense, as it would be in a prosecution under section 1121. 1122, or 1123. The purpose, of course, is to assure the availability of one stature, carrying a lesser penalty, which obviates any necessity of disclosing at trial the very information which is sought to be protected.

Section 1124 (d) explicity provides that improper classification is not a defense to prosecution, codifying the rule of Scarbeck v. United States, supra. The rationale is to prevent any circumvention of the purpose of the statute through the public disclosure of the subject information which would inevitably attend litigation of the propriety of the classification. Moreover, since the statute applies only to persons in positions of trust who are aware of their special responsibilities toward classified information and who nevertheless disclose such information to persons they know are not authorized to receive it, there is less reason than there might otherwise be for declining to permit them to justify their breach on the ground that the information was improperly classified. 12

18 U.S.C. 798; 42 U.S.C. 2274, 2277; 50 U.S.C. 739 (b), The consolidation of these sections into section 1124 results in a more restricted coverage than some of the current statutes in that only a person who lawfully possessed the information may be prosecuted; it results in a less restricted coverage than some in that all classified informaton is included and in that communication to any unauthorized recipient is included. See pp. 17-21, supra.

The government must still establish, of course, that the Information was in faet classified and was classified by a person with authority to do so.

Under the provisions of Executive Order Number 11652, issued in March of 1972, such persons for the first time are afforded a specific procedure to challenge classifications they believe to be erroneous, and to obtain review of their claims by an interagency committee.

22-466-73 -3

To ensure that the statute will not hinder the legitimate workings of Congress, subsection (c) provides a defense where the information is communicated only to a regularly constituted committee of the Senate or House of Representatives, or to a joint committee thereof, pursuant to lawful demand. This is derived from 18 U.S.C. 798 (c). The subsection makes it clear that section 1124 is not a bar to disclosure under the specified circumstances; it does not permit unauthorized disclosure of national defense information, any more than does current law. Cf. 18 U.S.C. 793 (d) and (c).

F. Section 1125 (Unlawfully Obtaining Classified Information)

This section, covering receipt of classified information, is a partial counterpart of section 1124. Section 1125 applies only to agents of foreign powers, however, and does not reach other persons to whom classified information is communicated in violation of section 1124.

As is true under section 1124, improper classification of the information is not a defense under section 1125.

The ten-year penalty under present law has been reduced to seven years to parallel section 1124's treatment of persons who disclose classified information to agents of foreign powers.

G. Section 1126 (Definitions)

This section contains definitions of certain terms used in sections 1121 though 1125. Definitions of other terms used in these sections and elsewhere in the Code (e.g., "foreign power") may be found in section 111 (General Definitions). The terms "authorized" and "classified information" are drawn from 18 U.S.C. 798, 50 U.S.C. 783, and 42 U.S.C. 2014. On the assumption that current kinds of legislative and executive procedures for insuring confidentiality will continue to be employed, reference is made to restrictions imposed by "statute," as is now the case with atomic energy secrets, 42 U.S.C. 2014, and by "executive order," as is the case with material now classified under E. O. 11652 or its predecessor, E. O. 10501, both of which delegate classifying authority and fix standards for its exercise. As the generalities of statutes and executive orders frequently require implemeting regulations on the part of the responsible agencies, reference to such rules has been included.

"Communicate" has been selected as the most generic term, and is intended to include all the possible synonyms (e.g., give, send, transmit, deliver, disclose, divulge, reveal, provide access to, etc.) and all the general forms of communication (e.g., verbal, written, pictorial, graphic, etc.) by whatever means accomplished. Communication to the general public is explicitly made applicable to all sections.

The terms "communications intelligence information" and "cryptographic information" relate to electronic surveillance of foreign powers, breaking their codes, and maintaining the confidentiality of our own codes. They are taken from 18 U.S.C. 798, and permit the absorption of that section into sections 1121-25.

"Information" is defined as including "any property from which information may be obtained," permitting the elimination of the "laundry-lists" of current law ("sketch, photograph, photographic negative, blueprint, plan, map, model" etc.) which, endless and redundant as they are, would otherwise have to be supplemented to reflect today's technology ("tape, punchcard, disk-pack, videotape, program ***”).

The term "information relating to the national defense" is drawn from 18 U.S.C. 793 and 794, and is intended to bring forward the complex of concepts enunciated in Gorin v. United States, 312 U.S. 19 (1941), and United States v. Heine, 151 F. 2d 813 (C.A. 2, 1945) cert. denied, 328 U.S. 833 (1946), i.e. that "national defense" is a broad generic concept signifying the military establishment and interrelated aspects of civilian support facilities; that the "information relating" thereto must be directly and rationally connected; that the information must be of a kind warranting secrecy for security reasons, which the government made an effort to restrict, or, at the very least, did not itselfpublicize or suffer to be freely disseminated, and which was not otherwise "in the public domain" and lawfully accessible to anyone who took the trouble to gather it. Consideration was given to incorporating expressly the Gorin and Heine concepts into the statutory definition, but, in light of the difficulty of reducing those concepts to statutory terminology while still leaving room for the judicial flexibility necessary to accommodate the fair application of the

law to unforeseen situations, it was ultimately concluded that the preferable course was to use the phrase occurring in the current statutes and to make it clear that the existing judicial constructions were intended to be carried forward.

The recommendation of the Brown Commission that, despite Gorin's acceptance of the propriety of using the term without statutory amplification, the statute should break down the generic-term "national defense" into illustrative subclasses drawn from prior cases and statutory material, has been followed.

Matter properly classified under E. O. 11652 would fall within the definition of "information relating to the national defense" in all cases, with the possible exception of some foreign affairs matters requiring secrecy, even though divulgence would not threaten the physical security of the United States.

The term "restricted area" is defined as an area containing a facility to which access is restricted by statute or executive order for reasons of national defense. This replaces the long list of facilities enumerated in 18 U.S.C. 793(2), which is so all-inclusive as to make particularization unnecessary. The restriction of the President's power to designate such areas to time of war and national emergency has been lifted to permit replacement of items from the eliminated list through selective designation.

Mr. MARONEY. I wish to assure the subcommittee that the Department of Justice fully appreciates the problems and concerns that impel debate on portions of the legislation we are discussing today. Concern about this general area is legitimate. It causes us all concern. It causes us concern because it involves the necessity of striking a sensitive yet realistic balance between two matters of fundamental importance to our nation.

On the one hand we have the need to maintain a free and open society with as much information as is possible concerning the operations of its government.

On the other hand, we have the need of that society to protect itself from foreign attack and external disasters that can befall it. It is a problem that differs from the usual sort of criminal statute which involves a necessity of balancing the rights of the individual against the needs of society.

Here we have involved two rights of society itself, to some extent, intertwined, to some extent conflicting. It is a difficult balance to strike.

We have made a studied effort, and we think a reasonable and responsible one, to strike this balance giving recognition both to desirability of the fullest possible disclosure of the public business and to the recognized need to protect information the disclosure of which could adversely affect the national defense.

For the most part we have attempted to parallel the existing law -section 1124 being the exception in this area.

Questions have been raised, however, as to whether these sections. do. in fact, parallel the existing provisions.

To examine this question, however, requires first, a clear understanding of the exact reach of the current law, and second, a recognition that any attempt at recodification-in seeking simplicity and clarity-will of necessity vary in language from the existing provisions of law.

At this time, I would like, if I may, to direct my remarks to a few specific provisions of chapter 11 which appear to have generated considerable interest. I refer, of course, to sections 1121 through

Senator HRUSKA. Will the witness yield?

Is it not sections 1121 through 1126 of S. 1400?

Mr. MARONEY. I believe that is right, Mr. Chairman.

Senator HRUSKA. I believe it is because we go by sections; the other goes by sections plus subdivisions.

The statement will be corrected to that extent.

Mr. MARONEY. And particularly section 1122 (Disclosing National Defense Information), section 1123 (Mishandling National Defense Information) and section 1124 (Disclosing Classified Information). Prior to discussing each of these sections, however, I would like to take a few moments to review the state of existing law in the area.

Espionage and related offenses are presently covered by a number of provisions in titles 18, 42 and 50 of the United States Code. The relevant provisions for purposes of this discussion are title 18, sections 793 and 798; title 42, section 2277; and title 50, section 783 (b); 18 U.S.C., section 793 (d) deals with various materials relating to the national defense and with persons in lawful possession of such materials. It prohibits the willful communication, delivery, or transmission of such materials to persons not entitled to receive them and the willful failure to deliver such materials on demand to government employees entitled to receive them.

In enumerating the materials sought to be protected, the statute distinguishes between such tangible things as documents, writings, code books, signal books and other specified items on the one hand, and "information" on the other.

To be protected, the tangible items need only relate to the national defense; "information", however, is afforded protection only if it relates to the national defense and the possessor has reason to believe that it could be used to the injury of the United States or to the advantage of any foreign nation.

This distinction, clearly set forth in the legislative history of the statute Senate Rept. 427, 80th Cong., 1st Session (1949), p. 7; House Rept. 3112, 81st Congress, 2d Session (1950), p. 52.-was made, we believe, since the sources of information otherwise specifically enumerated in 793 (d) and (e), are tangible objects which will in all likelihood, contain on their face a classification or which, by their very nature, will indicate to the individual handling them that they constitute the type of matter protected by the statute. With respect to information not derived from tangible sources the possessor may or may not be put on notice that this is so; 18 U.S.C., section 793 (e) is identical to section 793 (d) except that it applies to anyone in unauthorized possession and prohibits the retention of national defense materials and requires delivery to an authorized person without a demand being made.

These sections, 18 U.S.C. 793 (d) and (e), are the primary basis for proposed section 1122 and are in part recodified by the proposed section.

As the subcommittee will note, section 1122 provides that a person is guilty of an offense if he knowingly communicates information relating to the national defense to a person not authorized to receive it.

The phrase "relating to the national defense" has been intentionally and carefully used in a deliberate attempt to preserve the judicial interpretations of existing law, including defenses, and the reci

tation in section 1126 of the categories of information included within the phrase has also been drafted to reflect current law.

At this point it becomes necessary to consider what is meant by the statutory phrase "relating to the national defense."

The Supreme Court has approved jury instructions defining the term as a "generic concept of broad connotation referring not only to military, naval and air establishments, but to all related activities of national defense"--see Gorin v. United States, 312 U.S. 19, 28 (1941)--and has held that the phrase includes all matters directly and reasonably related to the national security in the context of protection of the United States against our enemies, holding also that the relation to national preparedness must be reasonable and direct, not strained or arbitrary. Gorin v. United States, supra, 312 U.S. at

3-31.

Also, as construed by the courts, the phrase is not limited to matters, and I quote, "vitally important or actually injurious. The document or information must be, however, connected with or related to the national defense." Gorin v. United States, 111 F. 2d 712, 717; see also New York Times Co. v. United States, 403 U.S. 713 at 740Justice White concurring.

I would particularly note that the question whether information relates to the national defense is a jury question and that in reaching its decision a jury must examine the documents or information, consider the testimony of witnesses as to the significance of the information and as to the purpose and use to which the information contained therein could be put. United States v. Drummond, 354 F. 2d 132 (C.A. 2), cert. denied, 384 U.S. 1013.

Finally, most important, there can be no violation of statutes protecting information relating to the national defense" if the information has been made available to the public by the Government, if the Government did not attempt to restrict its dissemination, or if the information was available to the public generally from lawfully accessible sources. United States v. Heine, 151 F. 2d 813-C.A. 2,

1945,

As already noted, the proposed statute has been intentionally drafted to embrace all these concepts of the phrase "information relating to the national defense."

The proposed section 1122, therefore, is not a departure from current law. The only manner in which it could be considered a departure from current law at all is that where written or other tangible material is not involved, and where the residual category "information" is the subject of the offense, there is not a specific inclusion of the present language that the possessor of the information has reason to believe that it could be used to the injury of the United States or to the advantage of a foreign power.

However, analysis demonstrates that this distinction is one of form rather than substance; the essence of the requirement still remains, and it was intended to remain.

As noted, 18 U.S.C. 793 (d) and (e) reflect the specific notice element, not in a case of an individual possessing the tangible items specified, but only in a case involving the residual category "information."