Criminal Prohibitions on the Publication of Classified Defense Information

Jennifer K. Elsea 
Legislative Attorney

The publication of classified information related to National Security Agency (NSA) surveillance activity is the latest in a series of leaks to the press that has riveted Congress’s attention. Press reports describing classified U.S. operations abroad have led to calls from Congress for an investigation into the source of the leaks, and Attorney General Holder appointed two special prosecutors to look into the matter. The online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by the New York Times and other news media had already focused attention on whether such publication violates U.S. criminal law. The suspected source of the WikiLeaks material, Army Private Bradley Manning, has been charged with a number of offenses under the Uniform Code of Military Justice (UCMJ), including aiding the enemy, while a grand jury in Virginia is deciding whether to indict any civilians in connection with the disclosure. A number of other cases involving charges under the Espionage Act, including efforts to extradite Edward Snowden in connection with the leak of NSA documents pertaining to certain surveillance programs, demonstrate the Obama Administration’s relatively hardline policy with respect to the prosecution of persons suspected of leaking classified information to the media.

This report identifies some criminal statutes that may apply to the publication of classified defense information, noting that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. While prosecutions appear to be on the rise, leaks of classified information to the press have relatively infrequently been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions.

This report discusses the statutory prohibitions that may be implicated, including the Espionage Act; the extraterritorial application of such statutes; and the First Amendment implications related to such prosecutions against domestic or foreign media organizations and associated individuals. The report provides a summary of previous legislative efforts to criminalize the unauthorized disclosure of classified information.


Date of Report: June 24, 2013
Number of Pages: 34
Order Number: R41404
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Navy Shipboard Lasers for Surface, Air, and Missile Defense: Background and Issues for Congress

Ronald O'Rourke
Specialist in Naval Affairs

Department of Defense (DOD) development work on high-energy military lasers, which has been underway for decades, has reached the point where lasers capable of countering certain surface and air targets at ranges of about a mile could be made ready for installation on Navy surface ships over the next few years. More powerful shipboard lasers, which could become ready for installation in subsequent years, could provide Navy surface ships with an ability to counter a wider range of surface and air targets at ranges of up to about 10 miles. These more powerful lasers might, among other things, provide Navy surface ships with a terminal-defense capability against certain ballistic missiles, including China’s new anti-ship ballistic missile (ASBM).

The Navy and DOD have conducted development work on three principal types of lasers for potential use on Navy surface ships—fiber solid state lasers (SSLs), slab SSLs, and free electron lasers (FELs). One fiber SSL prototype demonstrator developed by the Navy is the Laser Weapon System (LaWS); another Navy fiber SSL effort is called the Tactical Laser System (TLS). Among DOD’s multiple efforts to develop slab SSLs for military use was the Maritime Laser Demonstration (MLD), a prototype laser weapon developed as a rapid demonstration project. The Navy has developed a lower-power FEL prototype and is now developing a prototype with scaled-up power. These lasers differ in terms of their relative merits as potential shipboard weapons.

Although the Navy is developing laser technologies and prototypes of potential shipboard lasers, and has a generalized vision for shipboard lasers, the Navy currently does not have a program of record for procuring a production version of a shipboard laser, or a roadmap that calls for installing lasers on specific surface ships by specific dates. The possibility of equipping Navy surface ships with lasers in coming years raises a number of potential issues for Congress, including the following:

• whether the Navy should act now to adopt a program of record for procuring a production version of a shipboard laser, and/or a roadmap that calls for installing lasers on specific surface ships by specific dates;

• how many types of lasers to continue developing, particularly given constraints on Navy funding, and the relative merits of types currently being developed; and

• the potential implications of shipboard lasers for the design and acquisition of Navy ships, including the Flight III DDG-51 destroyer that the Navy wants to begin procuring in FY2016.

In addition to decisions on whether or not to fund continued development of potential shipboard lasers, options for Congress regarding potential shipboard lasers include, among other things, encouraging or directing the Navy or some other DOD organization to perform an analysis of alternatives (AOA) comparing the cost-effectiveness of lasers and traditional kinetic weapons (such as missiles and guns) for countering surface, air, and missile targets, and encouraging or directing the Navy to adopt a program of record for procuring a production version of a shipboard laser, and/or a roadmap that calls for installing lasers on specific surface ships by specific dates.


Date of Report: June 27, 2013
Number of Pages: 67
Order Number: R41526
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Multiyear Procurement (MYP) and Block Buy Contracting in Defense Acquisition: Background and Issues for Congress

Ronald O'Rourke
Specialist in Naval Affairs

Moshe Schwartz
Specialist in Defense Acquisition

Multiyear procurement (MYP) and block buy contracting (BBC) are special contracting mechanisms that Congress permits the Department of Defense (DOD) to use for a limited number of defense acquisition programs. Compared to the standard or default approach of annual contracting, MYP and BBC have the potential for reducing weapon procurement costs by several percent.

Under annual contracting, DOD uses one or more contracts for each year’s worth of procurement of a given kind of item. Under MYP, DOD instead uses a single contract for two to five years’ worth of procurement of a given kind of item without having to exercise a contract option for each year after the first year. DOD needs congressional approval for each use of MYP. There is a permanent statute governing MYP contracting—10 U.S.C. 2306b. Under this statute, a program must meet several criteria to qualify for MYP.

Compared with estimated costs under annual contracting, estimated savings for programs being proposed for MYP have ranged from less than 5% to more than 15%, depending on the particulars of the program in question, with many estimates falling in the range of 5% to 10%. In practice, actual savings from using MYP rather than annual contracting can be difficult to observe or verify because of cost growth during the execution of the contract due to changes in the program independent of the use of MYP rather than annual contracting.

BBC is similar to MYP in that it permits DOD to use a single contract for more than one year’s worth of procurement of a given kind of item without having to exercise a contract option for each year after the first year. BBC is also similar to MYP in that DOD needs congressional approval for each use of BBC. BBC differs from MYP in the following ways:

• There is no permanent statute governing the use of BBC. 
• There is no requirement that BBC be approved in both a DOD appropriations act and an act other than a DOD appropriations act. 
• Programs being considered for BBC do not need to meet any legal criteria to qualify for BBC, because there is no permanent statute governing the use of BBC that establishes such criteria. 
• A BBC contract can cover more than five years of planned procurements. 
• Economic order quantity (EOQ) authority—the authority to bring forward selected key components of the items to be procured under the contract and purchase the components in batch form during the first year or two of the contract—does not come automatically as part of BBC authority because there is no permanent statute governing the use of BBC that includes EOQ authority as an automatic feature. 
• BBC contracts are less likely to include cancellation penalties. 

Potential issues for Congress concerning MYP and BBC include whether to use MYP and BBC in the future more frequently, less frequently, or about as frequently as they are currently used, and whether to create a permanent statute to govern the use of BBC, analogous to the permanent statute that governs the use of MYP.


Date of Report: June 26, 2013
Number of Pages: 26
Order Number: R41909
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Changes in the Arctic: Background and Issues for Congress

Ronald O'Rourke
Specialist in Naval Affairs

The diminishment of Arctic sea ice has led to increased human activities in the Arctic, and has heightened interest in, and concerns about, the region’s future. The United States, by virtue of Alaska, is an Arctic country and has substantial interests in the region. On May 10, 2013, the Obama Administration released a national strategy document for the Arctic region.

Record low extents of Arctic sea ice over the past decade have focused scientific and policy attention on links to global climate change and projected ice-free seasons in the Arctic within decades. These changes have potential consequences for weather in the United States, access to mineral and biological resources in the Arctic, the economies and cultures of peoples in the region, and national security.

The five Arctic coastal states—the United States, Canada, Russia, Norway, and Denmark (of which Greenland is a territory)—are in the process of preparing Arctic territorial claims for submission to the Commission on the Limits of the Continental Shelf. The Russian claim to the enormous underwater Lomonosov Ridge, if accepted, would reportedly grant Russia nearly onehalf of the Arctic area. There are also four other unresolved Arctic territorial disputes.

The diminishment of Arctic ice could lead in coming years to increased commercial shipping on two trans-Arctic sea routes—the Northern Sea Route and the Northwest Passage. Current international guidelines for ships operating in Arctic waters are being updated.

Changes to the Arctic brought about by warming temperatures will likely allow more exploration for oil, gas, and minerals. Warming that causes permafrost to melt could pose challenges to onshore exploration activities. Increased oil and gas exploration and tourism (cruise ships) in the Arctic increase the risk of pollution in the region. Cleaning up oil spills in ice-covered waters will be more difficult than in other areas, primarily because effective strategies have yet to be developed.

Large commercial fisheries exist in the Arctic. The United States is currently meeting with other countries regarding the management of Arctic fish stocks. Changes in the Arctic could affect threatened and endangered species. Under the Endangered Species Act, the polar bear was listed as threatened on May 15, 2008. Arctic climate change is also expected to affect the economies, health, and cultures of Arctic indigenous peoples.

Two of the Coast Guard’s three polar icebreakers—Polar Star and Polar Sea—have exceeded their intended 30-year service lives, and Polar Sea is not operational. The possibility of increased sea traffic through Arctic waters raises an issue concerning Arctic search and rescue capabilities. On May 12, 2011, representatives from the member states of the Arctic Council signed an agreement on cooperation on aeronautical and maritime search and rescue in the Arctic.

The Arctic has increasingly become a subject of discussion among political leaders of the nations in the region. Although there is significant international cooperation on Arctic issues, the Arctic is also increasingly being viewed by some observers as a potential emerging security issue. In varying degrees, the Arctic coastal states have indicated a willingness to establish and maintain a military presence in the high north. U.S. military forces, particularly the Navy and Coast Guard, have begun to pay more attention to the region. On May 21, 2013, the Coast Guard released a strategy document for the Arctic.


Date of Report: July 5, 2013
Number of Pages: 111
Order Number: R41153
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Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress

Ronald O'Rourke
Specialist in Naval Affairs

The Navy’s proposed FY2014 budget requests $1,083.7 million for continued research and development work on the Ohio replacement program (ORP), a program to design and build a new class of 12 ballistic missile submarines (SSBNs) to replace the Navy’s current force of 14 Ohioclass SSBNs. The Ohio replacement program is also known as the SSBN(X) program.

Under the Navy’s FY2012 budget, the first Ohio replacement boat was scheduled to be procured in FY2019, and Ohio replacement boats were to enter service on a schedule that would maintain the Navy’s SSBN force at 12 boats. The Navy’s FY2013 budget deferred the procurement of the first Ohio replacement boat by two years, to FY2021. The Navy’s proposed FY2014 budget maintains FY2021 as the procurement date for the lead boat. As a result of the deferment of the procurement of the lead boat from FY2019 to FY2021, the Navy’s SSBN force will drop to 11 or 10 boats for the period FY2029-FY2041. The Navy says the decline to 11 or 10 boats during this period will be acceptable in terms of meeting strategic nuclear deterrent mission requirements because none of the 11 or 10 boats during that period will be encumbered by lengthy maintenance actions.

The Navy in May 2013 estimated the procurement cost of the lead ship in the program at $12.0 billion in constant 2013 dollars, including $4.6 billion in detailed design and nonrecurring engineering (DD/NRE) costs for the entire class, and $7.4 billion in construction costs for the ship itself. The Navy in May 2013 estimated the average procurement cost of boats 2 through 12 in the Ohio replacement program at about $5.4 billion each in FY2010 dollars, and is working to reduce that figure to a target of $4.9 billion each in FY2010 dollars. Even with this cost-reduction effort, observers are concerned about the impact the Ohio replacement program will have on the Navy’s ability to procure other types of ships at desired rates in the 2020s and early 2030s.

Potential oversight issues for Congress for the Ohio replacement program include the following:

• the impact on the program of the March 1, 2013, sequester on FY2013 funding and unobligated prior-year funding for the program;

• the potential impact on the program of a possible sequester later this year or early next year on FY2014 funding and unobligated prior-year funding for the program;

• the likelihood that the Navy will be able to reduce the average procurement cost of boats 2-12 in the program to the target figure of $4.9 billion each in FY2010 dollars;

• the accuracy of the Navy’s estimate of the procurement cost of each SSBN(X);

• the prospective affordability of the Ohio replacement program and its potential impact on funding available for other Navy shipbuilding programs; and

• the question of which shipyard or shipyards will build SSBN(X)s.

This report focuses on the Ohio replacement program as a Navy shipbuilding program. CRS Report RL33640, U.S. Strategic Nuclear Forces: Background, Developments, and Issues, by Amy F. Woolf, discusses the SSBN(X) as an element of future U.S. strategic nuclear forces in the context of strategic nuclear arms control agreements.


Date of Report: July 3, 2013
Number of Pages: 47
Order Number: R41129
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