Gathering or Transmitting National Defense Information to Aid a Foreign

Government (a) Base Offense Level: (1) 42, if top secret information was gathered or transmitted; or (2) 37, otherwise. Commentary Statutory Provisions: 18 U.S.C. § 794; 42 U.S.C. §§ 2274(a), (b), 2275. Application Notes: 1. 2. 3. “Top secret information” is information that, if disclosed, “reasonably could be expected to cause exceptionally grave damage to the national security.” Executive Order 13526 (50 U.S.C. § 3161 note). The Commission has set the base offense level in this subpart on the assumption that the infor- mation at issue bears a significant relation to the nation’s security, and that the revelation will significantly and adversely affect security interests. When revelation is likely to cause little or no harm, a downward departure may be warranted. See Chapter Five, Part K (Departures). The court may depart from the guidelines upon representation by the President or his duly au- thorized designee that the imposition of a sanction other than authorized by the guideline is necessary to protect national security or further the objectives of the nation’s foreign policy. Background: Offense level distinctions in this subpart are generally based on the classification of the information gathered or transmitted. This classification, in turn, reflects the importance of the infor- mation to the national security. Historical Note Effective November 1, 1987. Amended effective November 1, 2010 (amendment 746); November 1, 2013 (amendment 778); November 1, 2014 (amendment 789).