[国会记录:2011年2月15日(参议院)][第S753-S754页]卡丁先生关于提交法案和联合决议的声明:S. 355。一项旨在改进、现代化和澄清《美国法典》第18编第37章所载间谍法规的法案，以促进联邦告密者保护法规和规章，防止未经授权泄露机密信息和其他目的;司法委员会。卡丹先生。总统先生，目前关于间谍法的框架是为了处理经典的间谍案件，涉及那些意图帮助外国政府和伤害美国的人。目前的框架可以追溯到1917年的《间谍法》，该法案规定战时泄露国防信息为犯罪行为。立法背后的基本概念,它被美国最高法院支持了1919年宪法,是为了阻止公民间谍或干扰当前框架在一战期间军事行动成立情报和国家安全信息时主要存在于一些有形的形式,如图纸、照片、地图和其他文档。然而，在过去的100年里，我们的国家在我们生活的几乎每个方面都发生了巨大的变化，包括使我们收集信息的能力和传播信息的媒介发生了革命性的技术进步。然而，间谍法的基本条款和结构自其诞生以来一直相对不变[[Page S755]]。此外，当法律适用于可金博宝正规网址能出于援助外国政府或损害美国以外的目的而披露机密信息的人时，在刑事案件的起诉和辩护中出现了一些问题。 In addition, the statutes contain some terms which are outdated and do not reflect how information is classified by the Executive Branch today.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所述“国会重新审查它们的时机已经成熟”。美国诉罗森案，445 F。增刊2 d: 602、646、既有。2006年,埃利斯,j .近20年前在莫里森的情况下,一个联邦上诉法官表示,“(我)一件事是清楚的,那就是反间谍法法规,现在普遍是笨拙和不精确的仪器为起诉政府“泄密者”向媒体与政府在其他国家的服务“摩尔”。“那位法官还表示，‘精心制定的立法’是比司法干预更好的‘长期解决方案’。”见《美利坚合众国诉莫里森案》，第844卷，第2d卷，第1057卷，第1086卷，第4卷，1988年。作为参议院司法部门反恐和国土安全小组委员会的前主席，我曾担任小组委员会主席听力2010年5月12日，题为'间谍章程：A回头一看转发“”那个小组委员会听证会上，我问了一些证人，其中包括来自情报和执法学术界证人以及前任官员执法社区，如何好间谍法规一直在努力。而自从那次听证会上，我一直密切并仔细审查这些法规，特别是在最近发生的事件的背景。我相信，技术的改变和社会，法律和司法的变化规律相结合，已经使我们的间谍法律某些方面不那么有效比他们需要保护国家安全。我也相信，我们需要提高我们起诉的间谍以及那些谁做的机密信息未经授权披露的能力。我们不需要一个国家官方保密法，我们必须小心，不要寒意保护的第一修正案的活动。我们这样做，不过，需要做防止机密信息，可能会损害美国擅自披露的一份更好的工作，并在同一时间，我们需要确保公开辩论继续发生在重要的国家安全和外交政策问题。金博宝正规网址其结果是，我今天重新引入间谍章程现代化法案，ESMA。这项立法使得对间谍章程重要的改进，使它们在21世纪更有效和相关性。这项立法是狭义定制和平衡，将使政府使用单独的刑事法规起诉政府雇员谁做的机密信息未经授权的披露违反他们已经进入了保密协议的，不管他们是否打算帮助外国 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 [[Page S756]] (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. ____________________