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Washington’s double standard for the Espionage Act

The recent history of the Espionage Act shows how the statute has often been used as a political tool by both Republicans and Democrats.

Friday’s announcement that the FBI was re-opening its inquiry into the handling of classified information by Hillary Clinton placed the long-running email controversy back at the center of national electoral politics. The initial criminal investigation focused on whether Clinton violated the Espionage Act through the mishandling of classified information. Violations of the act are punishable by a variety of penalties, ranging from fines to imprisonment.

Photo by Adrian Danciu
Matt Ehling

The Espionage Act has been in place for over a century, and has been the principal legal authority for the prosecution of spies and, more recently, leakers of national security information. Undoubtedly, the government needs a mechanism for protecting legitimate defense material. However, the recent history of the Espionage Act shows how the statute has often been used as a political tool, applied with a selective double standard by Democratic and Republican administrations alike.

History of the Espionage Act

The genesis of the Espionage Act can be traced to attempts to prosecute spies during World War I. Congress passed the Act in 1917 as the country entered the fray of European conflict, and amended the law several times thereafter. Today, the provisions of the Espionage Act establish criminal penalties for a variety of activities involving the unauthorized sharing, disclosure or receipt of national security information.

During its long history, the Espionage Act has been used to convict government employees who have disseminated national security information without authorization. Those cases have involved personnel who had contractual obligations that barred them from releasing or discussing certain data. The act of doing so would violate their contractual arrangements, and would also run afoul of provisions of the act that prohibit the disclosure of defense information to unauthorized parties or foreign governments.

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Some of the prosecutions brought under the Espionage Act have involved classic instances of espionage, such as when charges were filed against CIA analyst Aldrich Ames in 1994. Ames was found to have passed classified information to the Russian KGB on multiple occasions during the 1980s. Other prosecutions involved government personnel who had leaked classified material, such as intelligence analyst Samuel Morrison, who was prosecuted for releasing classified satellite imagery to Jane’s Defense Weekly magazine.

For many years, Morrison’s case was the only instance in which the Espionage Act had been used to prosecute a leak to the press. While both the Nixon and Reagan White Houses had contemplated bringing charges against members of the press for the publication of classified material, no such charges ever emerged. In large measure, prosecutions under the Espionage Act focused on the leaker — the person with a contractual obligation not to disclose information — rather than the recipient of leaked material. Recipients (such as journalists) were not parties to any government contract, and had a First Amendment right to speak about what they had been told. These sorts of defenses kept broader uses of the Espionage Act at bay for many years. That legal consensus began unraveling after 9/11, however, as the George W. Bush administration moved to aggressively control the dissemination of national security information to the press.

Charging leakers with an eye toward journalists 

In 2005, the New York Times published a story that revealed the existence of a broad-based, warrantless wiretapping program authorized by the Bush administration. The political fallout was extensive, and it resulted in immediate calls for congressional investigations.

The Bush administration’s allies in Congress and various pundits (including Minnesota’s Power Line bloggers) rushed to defend the White House, and simultaneously called for the prosecution of New York Times journalist Eric Lichtblau under the Espionage Act for revealing the existence of the classified program. The administration eventually followed suit, with Attorney General Alberto Gonzales publicly claiming that the act could be used against members of the press who disseminated classified information. Actual prosecution would have had to clear multiple legal hurdles, and would have entered uncharted legal territory. However, as a political maneuver, the mere threat of prosecution was a potent weapon.

Ultimately, the Bush administration never charged Lichtblau with violating the Espionage Act, but it subsequently brought other charges that some observers believed were attempts to lay the groundwork for eventually prosecuting members of the press.

In 2005, Pentagon official Lawrence Franklin was charged under the Espionage Act for disclosing classified information to Steven Rosen and Keith Weissman, both employees of the American Israel Public Affairs Committee (AIPAC). Neither Rosen nor Weissman ever received classified documents, but were purely the recipients of oral information relayed by Franklin.

The Justice Department then brought additional charges against Rosen and Weissman, asserting that the Espionage Act was broad enough to permit the prosecution of recipients of classified material, and not just leakers of such material. Expanding case law to include the successful prosecution of recipients would have made the Espionage Act a potent weapon for prosecuting the press.

In 2009, charges were dropped against Rosen and Weissman after administration lawyers were told by the presiding judge that the government would need to demonstrate that U.S. interests were harmed, and that Rosen and Weissman also had intent to cause such harm. While the Bush administration was not successful in expanding case law in this instance, it did set the stage for broader uses of the Espionage Act in the future.

Sanctioned and unsanctioned leaks 

The case against Lawrence Franklin provides a window into how the Espionage Act is actually used in Washington. Leaks of classified information by government officials are routine in Washington, including leaks to the press, leaks to allied foreign intelligence services, and many other parties. The differences in treatment lie in whether those leaks are considered politically advantageous at a given time.

For an example, we can look to the Valerie Plame affair — a case that highlighted the double standard inherent in Washington’s use of the Espionage Act, and its treatment of classified information generally.

In 2003, during the midst of the heated Iraq War debate, Washington Post columnist Robert Novak criticized former U.S. diplomat Joseph Wilson for contradicting White House talking points about the war. In his column, Novak revealed that Wilson’s wife, Valerie Plame, was a CIA operative. As an intelligence asset, Plame’s employment status was classified, and Wilson accused the Bush White House of intentionally leaking that detail to Novak. Eventually, a special prosecutor was impaneled, but no Espionage Act charges were ever brought. The Plame leak was business-as-usual in Washington, where leakers and disseminators of classified data are treated under widely varying standards, depending on whose agenda they are supporting.

The Obama administration

While the Bush administration laid the initial groundwork for prosecuting journalists under the Espionage Act, it was the Obama administration that ultimately moved most aggressively to expand the application of the Espionage Act to the press.

The Obama Justice Department has brought the highest number of Espionage Act charges of any single administration, and has come the closest to actually prosecuting journalists under the auspices of the act. In investigating leaks by Stephen Kim of Lawrence Livermore Laboratory, the Justice Department asserted in warrant affidavits that Fox News reporter James Rosen was a “criminal co-conspirator” in the leaks, and sought to access his personal emails. While Kim eventually pleaded guilty to disclosing classified material, no charges were brought against Rosen. However, the administration had crossed an important line by using purported violations of the Espionage Act to investigate a member of the press. Wielding such a weapon can, of course, hold significant political advantages in terms of controlling information, and in curbing press inquiries.

Politically selective use of the act

Rosen’s treatment was notable, especially when compared to the later inquiry into Hillary Clinton’s use of a private email server. In investigating Rosen, the Obama Justice Department would have had to read the Espionage Act broadly in order to cover recipients of classified information. In contrast, the same Justice Department appears to have read the act narrowly in declining to charge Hilary Clinton. In congressional testimony, FBI chief James Comey stated that the agency lacked sufficient evidence to show that Clinton knew that she was disseminating classified information improperly via her home server. While demonstration of intent is necessary for successful prosecution under some portions of the Espionage Act, the statute also contains a provision at 18 U.S.C. 793(f) that makes it a crime to remove classified information from “its proper place of custody” through “gross negligence.”

Comey testified that Clinton lacked sophistication in the handling of classified material, and that her procedures for doing so were problematic. The agency, however, apparently declined to hold that her conduct amounted to gross negligence. Clinton’s case is instructive in that it once again underscores how a Washington double standard exists for actions under the Espionage Act. In the 1992 United States v. McGuinness case, a Navy operations specialist was convicted of violating the act because he kept classified materials in his own home. In the McGuinness case, the Espionage Act was read broadly, ensuring a conviction. For Hillary Clinton, the act was read narrowly to exclude her data-handling procedures from the coverage of the statue. 

In our current era of government overclassification (77.5 million classification decisions were made by the U.S. government in 2014), legitimate questions can be raised about how aggressively to enforce the Espionage Act against inadvertent violators, since the explosion of classified material has resulted in an unwieldy, often difficult-to-manage system. One would hope that decisions made in this area would be applied to all parties evenly, rather than through selective political considerations.

What would a Trump administration do?

On the campaign trail, Donald Trump has made much political hay of the FBI’s initial decision to decline charges against Clinton, and has raised the issue of a double standard that exempts Clinton from the scrutiny applied to others. While a double standard clearly exists for how the Espionage Act is used, that standard is a product of a Washington culture that has evolved under both Republican and Democratic administrations, and it is not exclusive to Clinton. Politically selective use of the Espionage Act is clearly a problem. It should also be noted that this problem would likely not be remedied by a Trump administration.

Trump’s insistence that he will clear Washington of political corruption does not square with his own rhetoric about what he plans to do if he assumes the presidential mantle. For instance, Trump’s invocation of broad presidential authorities and recurrent personal attacks raise the specter that he would utilize the considerable powers of the presidency to settle personal vendettas once in office. The Espionage Act would be a useful weapon for pursuing such an agenda. Likewise, his relentless verbal assault on the press makes it all but certain that he would wield the Espionage Act as a weapon against the Fourth Estate even more aggressively than Barack Obama has.

The recent history of the Espionage Act provides multiple lessons in how governmental power can be abused for political ends. It also provides a clear warning about what other abuses may yet come to pass.

Matt Ehling is a St. Paul-based writer and media producer who is active in government transparency and accountability efforts. He is the president of the transparency nonprofit Public Record Media.

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