defense, means with authority to have access to, to receive, to possess, or to control such information as a result of the provisions of a statute or executive order, or a regulation or rule thereunder; "(b) 'classified information' means any information, regardless of its origin, which is marked or designated pursuant to the provisions of a statute or executive order, or a regulation or rule thereunder, as information requiring a specific degree of protection against unauthorized disclosure for reasons of national security; "(e) 'communicate' means to impart information, to transfer information, or otherwise to make information available by any means, to a person or to the general public; (d) 'communications intelligence information' means information: "(1) regarding any procedures and methods used by the United States or any foreign power in the interception of communications and the obtaining of information from such communications by other than the intended recipients; "(2) regarding the use, design, construction, maintenance, or repair of a device or apparatus used, or prepared or planned for use, by the United States or a foreign power in the interception of communications and the obtaining of information from such communications by other than the intended recipients; or **(3) obtained by use of the procedures or methods described in paragraph (1), or by a device or apparatus described in paragraph (2); "(e) 'cryptographic information' means information: "(1) regarding the nature, preparation, use or interpretation of a code, cipher, cryptographic system, or any other method of any nature used for the purpose of disguising or concealing the contents or significance or means of communications, whether of the United States or a foreign power; "(2) regarding the use, design, construction, maintenance, or repair of a device or apparatus used, or prepared or planned for use, for cryptographic purposes, by the United States or a foreign power; or "(3) obtained by interpreting an original communication by the United States or a foreign power which was in the form of a code or cipher or which was transmitted by means of a cryptographic system or any other method of any nature used for the purpose of disguising or concealing the contents or significance or means of communications; "(f) information' includes any property from which information may be obtained; “(g) ‘information relating to the national defense' includes information, regardless of its origin, relating to: "(1) the military capability of the United States or of an associate nation; "(2) military planning or operations of the United States; "(4) military installations of the United States; “(5) military weaponry, weapons development, or weapons research of the United States; "(6) restricted data as defined in section 11 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2014); "(7) intelligence of the United States, and information relating to intelligence operations, activities, plans, estimates, analyses, sources, and methods, of the United States; *(8) communications intelligence information or cryptographic information as defined in subsection (d) or (e); от "(9) the conduct of foreign relations affecting the national defense; “(10) in time of war, any other matter involving the security of the United States which might be useful to the enemy; "(h) 'restricted area' means any area of land, water, air, or space which includes any facility of the United States, or of a contractor or subcontractor with or for the United States, to which access is restricted pursuant to a statute or executive order, or a regulation or rule issued pursuant thereto, for reasons of national defense. "8 302. KINDS OF CULPABILITY DEFINED "The following definitions apply to an offense described in a section of this title and to an offense outside this title which is described in a statute enacted after the effective date of this title. "(a) INTENTIONALLY.-A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. "(b) KNOWINGLY.-A person acts knowingly, or with knowledge, with respect to his conduct when he is aware of the nature of his conduct. A person acts knowingly, or with knowledge, with respect to circumstances surrounding his conduct when he is aware or believes that the circumstances exist, or is aware of a high probability of their existence, or intentionally avoids knowledge as to their existence. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware or believes that his conduct is substantially certain to cause the result. "(c) RECKLESSLY.-A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or a result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of conduct that an ordinary person would exercise under all the circumstances. "(d) NEGLIGENTLY.-A person acts negligently, or is negligent, with respect to circumstances surrounding his conduct or a result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all circumstances. Senator HRUSKA. As to the idea of trying to overcome the superiority of the Department of Justice over the talents of this committee, we will give that a try and see if we can, with your help, overcome the objections of Senator Hart, which I think personally have foundation. Senator HART. Thank you, Mr. Chairman and thank you for suggesting printing in the record at this point the section you did because I would like to look at the categories of material that are covered by section 1122. It is information relating to the national defense. It is then defined in section 1126 (g). That is the one you had ordered printed. It includes information relating to military weaponry, weapons development or weapons research in the United States. Would that, as you in drafting intend, would that include information regarding cost overruns from management mistakes. Mr. MARONEY. I would not think so. Senator HART. Conflicts of interest associated with procurement? Mr. MARONEY. No, sir. Senator HART. How can you tell that from the statute, the definition? Mr. MARONEY. Well, I think we have to go back to the test of Gorin, whether the information has a reasonable and direct relationship to the national defense, and not just a question of whether or not it concerns some aspect of the military. I think that it has to concern the nation's preparedness to defend itself. Senator HART. Let me interrupt. I know we are running late and I apologize. It is our responsibility to draft a very sensitive section of the criminal law. Wouldn't you agree we should at least try to do better than simply leave it to somebody's interpretation of the Gorin case? Mr. MARONEY. Well, as Mr. Gainer indicated, they have made extensive efforts along that line Senator HART. It is desirable that we do it? Mr. MARONEY. I think it would be desirable if a better product can be achieved. It is always desirable. Senator HART. Specifically a product that will tell the people of the country what it is that will be a criminal action. Mr. MARONEY. Well, the courts placed a rather extensive judicial gloss, beginning with Gorin and Heine on similar statutes. We feel if they are sufficient for constitutional purposes, it should also be sufficient in the code as drafted. But obviously, if it can be done better we are all for it. Senator HART. We will try. Now, also included in that definition of information relating to the conduct of foreign relations affecting the national defense, what kind of foreign relations don't affect the national defense? Mr. MARONEY. Well, I think a State Department expert actually would be better qualified to answer that question. Senator HART. I would be going to a criminal lawyer to tell me. Mr. MARONEY. I believe a wide range of matters in the State Department which affect foreign relations also affect national defense. Senator HART. Does anything occur to you that doesn't conceivably relate to the national defense, effectively? Senator HRUSKA. Except there is a definition of what that means. Senator HART. This is what I just read, relating to it. Mr. MARONEY. Certainly, the conversations between governments involved in the SALT talks, negotiations being Senator HART. Those clearly would be, yes indeed. Mr. MARONEY. Any information, the compromise of which could lead to a break in our diplomatic relations or seriously strain our relations with another country. Those kinds of things are properly classified. Senator HART. Might it be better if in drafting we could put those examples in illustrating what it is we mean? Mr. MARONEY. I think the Executive order, for purposes of legislative history, is important to indicate what interpretation the Congress is placing on these provisions. The Executive order does set forth a number of examples of the types of information for each category of classification: top secret, secret, and confidential. Senator HART. That tells us what the President thinks should be top secret. Mr. MARONEY. Top secret, secret, the whole gamut. Senator HART. What we are trying to do is make clear for persons who will be required to obey this law what is meant by "relating to the national defense and the conduct of foreign affairs." You have indicated some examples as to what was intended to be included. Mr. MARONEY. And I think the Executive order gives other examples. They are not all inclusive. I think many times these things depend on the peculiar facts existing at the time in connection with the information. Senator HART. We promised to move on to that classification section. So let me say that I-I apologize. Mr. MARONEY. The Heine case which is one of the landmark cases that we would like to have in the legislative background of this bill the Heine case requires that the Government has made a conscious determination to restrict the dissemination of information if it is to meet the test of the espionage laws, so that the Executive order is about the only method against which you can place the question of whether or not and to what extent the executive has made an effort to restrict the information. Senator HART. What we are really attempting to resolve is a question of whether there would be any categories of defense and foreign relations information left that a Government employee could discuss with persons outside the Government. We want to go beyond-we all agree, press releases and speeches and official reports. We crowd pretty close to just that if we leave unsure the reach of the statute that we are talking about. Mr. MARONEY. The Executive order agrees with you 100 percent on that, Senator, and doesn't purport to require classification except with respect to a very small percentage of governmental information. Senator HART. Until my next question, we still are not talking about the classified matter. We are talking about this other disclosure and the broader definition. Well, on the classified information, that is section 1124, which makes it a felony for anyone in authorized possession of classified information to disclose it to any person unauthorized to receive it. Now, I have suggested that the provision cover disclosure with intent to harm our national security-disclosure which is actually harmful that a person has reasonable grounds to believe would be harmful-should suffice to protect legitimate security. We have discussed it. In drafting your bill, the Department feels it needs broader provisions protecting any defense communication information. But whichever way we go on that issue, whichever way you come out, if there are provisions in the law which prohibit disclosure of information either under your approach or the one I am trying to develop, why would we also need the additional provision like section 1124, which makes a disclosure of classified information criminal without regard either to the state of mind of the accused or of the content and the nature of the information? Let us forget for a minute the Scarbeck case. Why do we need it? Mr. MARONEY. Because very often when there is an unauthorized disclosure of properly classified information, the Government must make a judgment as to whether or not, in pursuing the prosecution, it is prepared and should, in the national interest, adduce evidence at the trial to demonstrate why the information does in fact relate to the national defense. In other words, we should not always-particularly where it is with respect to a Government employee who has been given a trust to preserve and safeguard classified information-we should not always have to reveal on the public record the very information which the classification laws are designed to protect. Now, we do have to make that choice under the other provisions, Senator HART. Under which? Mr. MARONEY. Under the other provisions: 1121, 1122, or 1123. If we were prosecuting a private citizen, newspaper reporter, or anyone else under one of these provisions we do have to prove why the information related to the national defense and what the information was. We don't feel that we should have to do that always in the case of a Government employee or other authorized holder who has a special trust and responsibility to handle the information in a certain way prescribed by the Executive order. Senator HART, We get to that eventual question of why we should criminalize disclosure of information that shouldn't have been classified in the first instance? Mr. MARONEY, Well, of course, we are not trying to protect information which shouldn't have been classified. As I indicated earlier, the Executive order, I believe, builds in a remedy to eliminate such probabilities, and it seems to me that the appropriate way to proceed by a Government employee who has a responsibility to handle classified information, if he disagrees, is to use that remedy. He can go to his superiors and he can eventually, in his department, go to the Department Review Committee, which is made up of people on a departmentwide basis, high level officials. If they turn him down, he can go to the interagency committee, which is a high-level body made up from the broad spectrum of Government agencies, and he can tell his case to them, If it is a case in which somebody is only trying to cover up their stupidity or cover up graft, it is hard for me to believe that this Government-wide agency is going to disagree with him and say, "No, we will keep the classification secret within the meaning of the Executive order." Senator HART. You say he has that remedy, but so would you have a remedy without needing the criminal sanction if some fellow ran around town blowing whistles on documents that were improperly classified. Do you need a criminal sanction? The agency head or the President has ample power to discipline him or even fire him. Mr. MARONEY. There is room for that remedy today. We think that there ought to be a criminal sanction for a violation of this kind of trust by the person authorized to have access to this sensitive information. Senator HRUSKA. Would the Senator yield long enough for the Chair to make an announcement? We will proceed for a while yet with this witness. If we finish, then fine. If not, we will resume our session here at 2 o'clock or as early after the scheduled 1:30 vote in the Chamber as possible, to go on until about a quarter to 4. Senator HART. If the accused doesn't have the defense of improper classification Mr. MARONEY. Under 1124 only? Senator HART [continuing]. wouldn't that permit Government officials to classify material in order to hide any information he seeks |