of the United States, he intentionally engages, in time of war, in the conduct prohibited in paragraphs (a) through (c) of section 1106(1), or, whether or not in time of war, in the conduct prohibited in section 1106(2).

Comment

This section replaces those portions of existing sabotage statutes which impose criminal liability upon a person who acts "with reason to believe that his act may injure, interfere with, or obstruct the United States" in preparing for or carrying on war or defense activities (18 U.S.C. §§ 2153, 2154). While it is similar to existing law in not requiring that an intent to harm the military effort accompany intentional misconduct, this section is more explicit as to the requirement of a culpability greater than mere negligence.

§ 1108. Intentionally Impairing Defense Functions.

A person is guilty of a Class C felony if, with intent to impair the military effectiveness of the United States, he engages in the conduct prohibited in paragraphs (a) through (c) of section 1106 (1) and thereby causes a loss in excess of $5,000.

Comment

This offense is similar to sabotage, but is a Class C, rather than Class A, felony, absent circumstances of war or risk of catastrophic defense impairment. The requirement that the loss caused be in excess of $5,000 parallels the felony grading provisions of criminal mischief (§ 1705), leaving less serious harms to the misdemeanor grading pro

visions of that section.

§ 1109. Avoiding Military Service Obligations.

(1) Offense. A person is guilty of a Class C felony if, with intent to avoid service in the armed forces of the United States or the performance of civilian work in lieu of induction into the armed forces, he:

(a) unlawfully fails to register pursuant to the regulatory act;

(b) unlawfully fails to report for induction into the armed forces;

(c) unlawfully refuses induction into the armed forces; or (d) unlawfully refuses or fails to perform, or avoids the performance of, civilian work required of him pursuant to the regulatory act.

(2) Definitions. In this section:

(a) "unlawfully" means in violation of the regulatory act; (b) “regulatory act" means Selective Service Act of 1967, or any other statute applicable to the recruiting of personnel for the armed forces, and any rules or regulations issued pursuant thereto.

Comment

Existing law makes any violation of the Selective Service Act, regardless of how trivial or the kind of intent, subject to felony penalties (50 U.S.C. App. § 462). This section provides more discriminating grading, selecting those violations which are properly felonies and leaving other violations subject to misdemeanor penalties only or to the regulatory offense provision (§ 1006). Note that this section explicitly requires the intent to avoid service or performance of civilian work in lieu of service. Note also that use of false statements accompanied by the prohibited intent is covered by § 1110(1) (b).

§ 1110. Obstruction of Recruiting or Induction into Armed Forces. (1) Offense. A person is guilty of a Class C felony if:

(a) in time of war, he intentionally and substantially obstructs the recruiting service by physical interference or obstacle or solicits another to violate section 1109; or

(b) with intent to avoid or delay his or another's service in the armed forces of the United States, he employs force, threat or deception to influence a public servant in his official action. (2) Definitions. In this section:

(a) "recruiting service" means a voluntary enlistment system, the Selective Service System or any other system for obtaining personnel for the armed forces of the United States; (b) "regulatory act" has the meaning prescribed in section 1109(2)(b).

Comment

This section recasts 18 U.S.C. § 2388, which deals with obstruction of recruiting services, in order to meet constitutional issues, correct grading disparities and integrate the offense into the Code as a whole. Thus, while reducing the 20-year penalty provided in existing law, subsection (1)(a) upgrades physical obstruction of recruiting services (from the Class A misdemeanor of obstructing any government function, § 1301) to a Class C felony when it occurs in time of war. Similarly, an unsuccessful solicitation to violate § 1108 (a Class A

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misdemeanor under § 1003) is raised here to a Class C felony when it is committed in time of war. In addition, subsection (1) (b) covers the use of force, threat, or deception against a public servant to prevent service in the armed forces, whether under the Selective Service Act or otherwise.

§ 1111. Causing Insubordination in the Armed Forces.

(1) Offense. A person is guilty of an offense if he intentionally causes insubordination, mutiny or refusal of duty by a member of the armed forces of the United States.

(2) Grading. The offense is a Class B felony if committed in time of war. Otherwise it is a Class C felony.

Comment

This section covers those aspects of 18 U.S.C. §§ 2387 and 2388 which have been described as dealing with impairing the morale of the armed forces. The grading is based, as under the existing law, upon the existence or non-existence of war.

§ 1112. Impairing Military Effectiveness by False Statement.

(1) Offense. A person is guilty of an offense if, in time of war and with intent to aid the enemy or to prevent or obstruct the success of military operations of the United States, he knowingly makes or conveys a false statement of fact concerning losses, plans, operations or conduct of the armed forces of the United States or those of the enemy, civilian or military catastrophe, or other report likely to affect the strategy or tactics of the armed forces of the United States or likely to create general panic or serious disruption.

(2) Grading. The offense is a Class B felony if it causes serious impairment of the military effectiveness of the United States. Otherwise it is a Class C felony.

Comment

This section covers matters now dealt with in 18 U.S.C. § 2388. As under existing law, the proscription is limited to conduct occurring in time of war and accompanied by an intent adversely to affect United States military operations. The statement must be one of "fact"-that is, susceptible of proof of truth or falsity-as distinguished from political opinion. See Pierce v. United States, 252 U.S. 239 (1920).

§ 1113. Espionage.

(1) Offense. A person is guilty of espionage if he intentionally reveals national defense information to a foreign power with intent to injure the United States or to benefit a foreign power in the event of military or diplomatic confrontation with the United States.

(2) Grading. Espionage is a Class A felony if committed in time of war or if the information directly concerns military or diplomatic codes, military missiles, space vessels, satellites, nuclear weaponry, early warning systems or other means of defense or retaliation against catastrophic enemy attack, war plans, or any other major element of defense strategy. Otherwise espionage is a Class B felony.

(3) Attempted Espionage and Conspiracy. Attempted espionage and conspiracy to commit espionage are punishable equally with the completed offense. Without limiting the applicability of section 1001 (Criminal Attempt), any of the following acts is sufficient to constitute a substantial step toward commission of espionage under section 1001: obtaining, collecting, eliciting, or publishing information directly related to the military establishment or entering a restricted area to obtain such information. (4) Definitions. In this section:

(a) "national defense information" means information regarding:

(i) the military capability of the United States or of a nation at war with a nation with which the United States is at war;

(ii) military or defense planning or operations;

(iii) military communications, intelligence, research, or development;

(iv) restricted data as defined in 42 U.S.C. § 2014 (relating to atomic energy);

(v) military or diplomatic codes;

(vi) any other information which is likely to be diplomatically or militarily useful to an enemy;

(b) "foreign power" includes any foreign faction, party, military or naval force, whether or not recognized by the United States, any international organization, and any armed insurrection within the United States.

Comment

This new formulation of espionage is designed to take into account problems identified by the courts in construing existing espionage

statutes, 18 U.S.C. §§ 793-798. The term "reveals" is used as a reflection of problems raised in connection with the transmittal of information in the public domain. It permits a court to distinguish between the assembly and analysis of such information so as to constitute a revelation, and the simple transmittal of, for example, a daily newspaper. The culpability requirement of this section and the definition of national defense information in subsection (3) (a) are also suggested by judicial construction of existing law. Note the inclusion of restricted data under the Atomic Energy Act and of military and diplomatic codes, now covered by 42 U.S.Č. § 2274 and 18 U.S.Č. §§ 798 and 952. This eliminates need for special provisions on those subjects.

Subsection (2) changes the grading scheme of existing law in a manner similar to the change with respect to sabotage. See comment to § 1106, supra.

Subsection (3) grades attempts at the same level as the completed offense, which will not always be the case under the general attempt provision, § 1001. By specifying conduct sufficient to constitute an attempt (provided culpability is also present), this subsection eliminates the need for separate statutes dealing with those matters. Cf. 18 U.S.C. § 793 (a) and (b).

§ 1114. Mishandling Sensitive Information.

A person is guilty of a Class C felony if, in reckless disregard of potential injury to the national security of the United States, he:

(a) knowingly reveals national defense information to anyone not authorized to receive it;

(b) violates a known duty, to which he is subject as a public servant, as to custody, care or disposition of national defense information or as to reporting an unlawful removal, delivery, loss, destruction, or compromise of the security of such information; or

(c) knowingly having possession of a document or thing containing national defense information, fails to deliver it on demand to a public servant of the United States entitled to receive it.

"National defense information" has the meaning prescribed in section 1113(4).