When Reading Becomes Espionage

By Shawn Musgrave • June 15, 2011 at 1:00 pm


WikiLeaks has been on the public radar since release of sensitive documents from the Iraq War last year | Logo courtesy WikiLeaks

Few things worth serious attention are simple. But to follow the WikiLeaks case through traditional media, one could easily get an open-and-shut impression that the whole thing has little to do with Joe-on-Main-Street, with you and me and anyone with ears to hear. After all, the juggernaut-lion’s share of the WikiLeaks case that has evolved in the public eye since last year has focused almost exclusively on headline personalities such as Julian Assange, accused leaker Bradley Manning and the recently-subpoenaed Boston activist David House. But tales of the battle to extradite Assange or even lionize Manning obscure a key aspect mired in the WikiLeaks context that bears on everyone, not only a handful of martyrs: the Espionage Act, enacted 94 years ago today. In the same way that the much-reviled (and just as oft-renewed) Patriot Act vastly expands government ability to spy on citizens and collect evidence without warrant or even probable cause (and similarly the FBI has this week decided it now needs no credible suspicion or judicial oversight to follow you or even root through your garbage), the Espionage Act under which prosecutors seek to indict Assange et al fundamentally erodes civil liberties of privacy, thought, dissent and private communication. In the digital age, the Espionage Act casts a dangerously wide net to catch those engaged in “espionage”: the qualifications include being literate, boasting steady Internet access and maintaining a pulse.

Originally enacted in 1917 to quash detractors of WWI, the Espionage Act has been invoked in numerous instances since, not valorously to unmask spies and saboteurs but to quiet and intimidate pacificists and anti-war or anti-draft demonstrators, and to further the Red Scare (this is the statute under which the Rosenbergs were indicted). Some dangerously broad gems within the Act and subsequent amendments made this possible. Most relevant to the WikiLeaks and contemporary cases, the Act forbids the seeking, obtaining, transmitting or communicating of documents pertaining to the national defense “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.”

Nixon sought unsuccessfully to prosecute Daniel Ellsberg under the Act for releasing to the New York Times in 1971 a damning government report on actions in Vietnam called The Pentagon Papers. In the Pentagon Papers case Nixon sought also to restrain the Times from publishing the leaked report. The Supremes ruled that the government had not made the case to legitimately injunct the Times from publishing the report because it had not demonstrated that such publication represented a “clear and present danger” (the long-standing precedent) to the national interest. Ellsberg was acquitted due to Nixon’s go-to strategy of burglary and wiretapping, this time of Ellsberg’s psychiatrist. (Honestly, if this isn’t looking familiar you should dust off your spectacles.) Justice Potter Stewart famously summed up in his concurring opinion:

In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people. [all emphasis mine]

N0w, this is a cherry-picked excerpt to be sure, as Stewart and the other justices outlined a considerable case for government discretion in maintaining secrecy. But the prevailing opinion was that secrecy must be balanced against the public interest and right of the people to check its government’s actions through informed consent and criticism.

Following the Pentagon Papers case, innumerable constitutional lawyers and scholars called for the repeal or drastic reining-in of the Espionage Act. The most influential, a 1973 report in the Columbia Law Review, found that the Act and similar legislation were so broad as to be “totally inadequate” and “poorly conceived and clumsily drafted,” hardly qualities one should demand of statutes outlining capital crimes. The authors lamented that “the longer we looked at [the Act], the less we saw,” concluding that muddled  definitions of espionage “paralyze newspaper reporting on national defense affairs” and argued for a “justification defense” that weighed the importance of disclosed information to national security against its significance for public debate. No such common sense amendments have been made to the Act, however, and it remains as broad as ever.

At hearings held in December of last year before the House Committee on the Judiciary, constitutional lawyers and national defense watchdogs again made the case for reining in the Act. One argument stood out in particular: that the Act is so indiscriminate in painting espionage as to make simply accessing WikiLeaks’ disclosed cables an equal crime to leaking them. American University law professor Stephen Vladeck testified that

the Espionage Act does not focus solely on the initial party who wrongfully discloses national defense information, but applies, in its terms, to anyone who knowingly disseminates, distributes, or even retains national defense information without immediately returning the material to the government officer authorized to possess it. In other words, the text of the Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense information that, by that point, is already in the public domain. [....] Whether one is a journalist, a blogger, a professor, or any other interested person is irrelevant for purposes of the statute. [all emphasis mine]

Note that this is a top scholar of law, not a conspiracy nut on a bender outside the drugstore. The paranoia as to the reach of the Espionage Act has reached such a fever pitch as to prompt pedestrian citizens to think twice about accessing the Iraq War Logs or recent leaks regarding US government involvement in rigging Haitian elections. These documents reveal critical aspects of the foreign policy conducted in the name of American citizens — to forbid or criminalize the simple act of reading them once in the public domain is to insulate policymakers and their agents from accountability and make the fuzziest of “spies” out of citizens seeking to discharge their duties and rights.  It is inexcusable, and it is terrifying.

Now, luckily I do my best to recycle and compost, so the FBI will find little of interest in my dumpster. And in all seriousness my aim is not to heighten the paranoia and encourage backward glances over shoulders. But WikiLeaks is not primarily about Assange or Manning. It is about us, and about the information we’re “permitted” to access. And, trite as it may sound, it is about justice and bringing sanity to our system.




Responses

  1. Greg

    This article’s title has little to nothing to do with the content. The article is merely standard Wikileaks support. I agree with this idea that Wikileaks is a force for good. However, at no point in this article do you ever prove that reading is espionage. This is very poor journalism. If you are going to support the work that people like Assange are doing, you should at least be better journalists in doing so.

    • Shawn Musgrave

      With respect (and recognizing the length of the article), you might not have gotten to the third- and second-to-last paragraphs, in which Professor Stephen Vladeck of American University Law School explains a bit how the Espionage Act makes little to no distinction between alleged leakers and mere readers or “retainers” of communicated secrets. Regardless, this piece was meant not as a proof any kind but as a brief exposition of the history of the Act and of its controversial invocation. Please feel free to link to superior (or, perhaps, “non-standard”) articles regarding the topic, although I’ve found few articles that delve into the implications of the Espionage Act for private citizens in particular as opposed to specifically to the Manning or Assange cases.

      • Greg

        I read the whole article. I actually had a much longer criticism of it, covering other problems of poor reporting in your article, but I decided to only focus on this one. I’ll focus on all of them now.

        “In other words, the text of the Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense information that, by that point, is already in the public domain. [....] Whether one is a journalist, a blogger, a professor, or any other interested person is irrelevant for purposes of the statute.”

        Retaining it means physical retention of the document, not knowledge of it in your head. You have completely misinterpreted this quote. Yes, it is egregious, but it is not actually what the quote says. Furthermore, NYT v US (1971) makes a quite clear distinction that this sort of interpretation is quite unconstitutional and does not hold up. While the law says that the jurisprudence has limited the law to a great extent. Finally, there is no becoming here, if reading is espionage under the act then it has always been espionage. However, if this claim is true, then every person, journalist and so on in the united states is such a criminal and has been for nigh on a century. This is a very poor reading of the law and does not take into account a quarter century of jurisprudence on this topic. It is, at best, reactionary nonsense, a poor parroting of people like Glenn Greenwald (who would know about these sorts of distinctions). Finally, no one has ever been successfully prosecuted under the Espionage Act in this manner. Various executives have tried and failed rather spectacularly. This interpretation is only valid when you look at the law purely textually, disregarding the case law, which is rather important in a legal system such as we have here in the US. You even quote the case, but seem to fail to acknowledge what such a case does!

        This being said, I agree that Wikileaks is a positive force on the world as much as you do. However, you make a number of similarly unsupported claims in this article.

        Let’s start with this one, this one’s been making the rounds on the internet lately. “[S]imilarly the FBI has this week decided it now needs no credible suspicion or judicial oversight to follow you or even root through your garbage”. This has always been true. Your garbage is public property, police can pick through it without a warrant or any suspicion. Actually, anyone can. I can go through your garbage, the National Enquirer can go through your garbage, and so can the FBI. This is not a substantive change in policy and has little to no impact on their daily activities.

        This bit’s fun too, you say, “But tales of the battle to extradite Assange[,]” clearly implying that the US is involved somehow. Honestly, there is little evidence that his extradition hearing has anything to do with the US case against him. While the claims of these women are a bit questionable, the acts that they describe him doing are quite horrid and he ought to be in jail if he’d actually done them! That being said, there is quite a bit of question as to whether this is an appropriate use of the European Arrest Warrant. But, there are many misuses of it for even lesser crimes and the system allows this.

        Oh, and you talk about Manning. It’s quite funny, you know, there is no link between the charges on Manning and the Espionage Act. The charges that are levied against Manning are in the UMCJ! I’d suggest you amend this part of your article, as you are, at best, purposefully obscure here. At worst, you are lying. I do not disagree that Manning is treated quite unfairly. That’s not my argument. But, do you honestly think that military officials should not be punished for leaking classified information? These are totally separate issues and you should be a little more careful in your reporting.

        “[T]he Espionage Act under which prosecutors seek to indict Assange et al[.]” Another questionable claim. These are just rumors at the moment, at best. You, nor anyone I’ve seen, have proven this claim.

        I could go on for some time here. Your article has numerous claims that twist or stretch the truth. I actually agree with your premise and feel that you could argue it in a much more truthful manner, without this sort of yellow journalism nonsense.

      • Shawn Musgrave

        I again would invite you to demonstrate either through writing your own other-than-yellow piece or via links to another the more truthful manner in which the premise might be flushed out. It is certainly not my intent to deceive or to gloss over factual errors. A couple of responses:

        First off, I would point you to the Manning charge sheet. While it is certainly true that Manning is charged under the UCMJ (Uniform Code of Military Justice, for the uninitiated), several of the charges against him refer back to alleged violations of 18 U.S. Code Section 793(e), which is the Espionage Act precisely. It is not “purposefully obscure” or a falsehood to link Manning and the Espionage Act. Rather, it is to simply repeat the charges against him. Furthermore, the very point of this article is to highlight the potential impact of the Espionage Act and similar statutes for the reader of WikiLeaks or other leaked material, not for Manning or alleged leakers. The appropriate punishment for any crimes allegedly committed by Manning is not the subject of this piece at all — it is (for better or worse) entirely agnostic as to what “should” happen to a military official convicted of leaking classified information. I mention Manning twice, both times in reference to the dearth of coverage of the case as it relates to maintaining an informed citizenry as opposed to the outcomes of popularly-followed trials/investigations.

        With regard to Assange (whose case is, just as Mannings, not at all the subject of this piece), the extradition I’m referring to here has nothing to do directly with the Swedish-UK case, but, again, the excessive media coverage of whether the US will seek extradition of Assange to face charges here. Assange’s lawyers have said that the grand jury in Alexandria is at least partly to weigh the case for extradition. Notice on House’s subpoena the reference to U.S. Code 18 Section 793(g), another component of the Espionage Act. The grand jury links Assange and the Espionage Act fairly clearly as I see it. But I cannot emphasize more clearly that this piece is precisely about the pitfalls of being drawn solely into celebrity trials at the expense of considering impact on ordinary citizens.

        At the risk of being accused of deflecting the rest of your criticisms, perhaps a more constructive approach since you agree with my premise if not method is for you to expound — what dangers if any do you see in the Espionage Act? If I’m reading you correctly you similarly contend that it is “egregious” — in what ways if not the ones enumerated here?

  2. decora

    “However, at no point in this article do you ever prove that reading is espionage”

    Musgrave mentions, several times, that the Espionage Act does not distinguish people who ‘disclose’ the information, and people who ‘retaining’ the information, and several other people along the chain.

    unless you are magic, i dont think you can ‘read’ it without ‘retaining’ it.

    Throw in the Computer Fraud and Abuse Act paragraph (a)(1), which is also sometimes called the Computer Espionage law, and you further complicate matters.

    Musgrave’s article is one of the few that ‘gets it’. It’s not just about Manning, it’s about whether publishing gun camera footage (Collateral Murder) is a crime, and whether it is a crime equivalent to Aldrich Ames selling info that got our Soviet informants killed. Because that’s one of the Espionage Act counts against Manning – delivering the Collateral Murder video.

    It is also about whether memos about Ghaddafi’s “Buxom Nurse” are as important as troop movements or battle plans.

    US v. Rosen (part of the AIPAC case) was the first Espionage case against a non-government employee. It failed, for various reasons, parly b/c the Whitehouse didn’t want it’s top people dragged before a jury to talk about how much they leak all the time.

    The Wikileaks case is the second. It is historically unprecedented.

    Furthermore, they are using the (g) paragraph, Conspiracy, which is almost never used – and they are using it against a non-government employee.

    Then go read stuff from people like Jane Mayer and her article in the New Yorker on the Drake case. Or read Gerstein at Politico. Or read Shane Harris in the Washingtonian “plugging the leaks” article from 2010.

    All of these journalists, Mayer having particular expertise with her book The Dark Side, are pointing out that this is not just about leaks, this is about a crackdown on how journalists get information.

    Musgrave has absolutely nailed it in this article.

    • Greg

      You are absolutely wrong. Manning is charged under the UCMJ, not under the Espionage Act. I’d say you don’t “get it.” Rather, you “get it totally wrong.”

      “The Wikileaks case is the second. It is historically unprecedented.” Well, there is no Wikileaks case yet. There’s this case against Manning, but as he was employed by the Army, it’s certainly not historically unprecedented. That’s a laughable claim at best.

      Look, as I’ve said about 3 times, I actually agree with the general thesis of this argument, I just feel that using this sort of false information to bolster the argument is totally unnecessary and harms the argument more than it helps it.

    • Greg

      You missed the point of some of the criticism that I made. It’s not that these little things are or are not the point of the article, but that they are still wrong.

      Manning: the UCMJ contains all US laws. I guess you are right to link them, but the UCMJ would certainly retain such a thing even if the Espionage Act itself were gone. I think this is a non starter.

      Assange: you link to an article where his lawyer claims something with no evidence or factual basis to back it up. Remember, this is the same lawyer who claimed that Assange was merely charged with “sex by surprise.” If that is not egregious, I’m not sure what is.

      I’m not sure how to insert links here to things… And, I’m not really sure what factual basis you’re asking for me to link to. I think that I actually gave a quite thorough constitutional argument as to why your interpretation of the Espionage Act’s Jurisprudence is incorrect. The thing is, while you are textually correct, in a common law system we have to look to the jurisprudence. Even if Assange is bought into court, he will never be charged. If you are brought into court, you will never be charged. There are a number of substantive legal arguments that limit the law, I have given a rough sketch of some of them in my previous postings.

      Here’s the thing about the act, while the jurisprudence exists, the law should still be changed to reflect the limited scope of it. In a democratic society it is harder to obey the law if we do not know the law, and it is very hard to know the law here. It is somewhat complex. The biggest danger is that it could be used to bully journalists. Which is exactly how it is being used. The threat of the law, especially when applied with people’s ignorance of the law, is extreme. This is exactly why the first amendment is important, we must have an informed public and cannot allow the government to bully journalists into silence. The Bush administration attempted to do this consistently, and we were rightly appalled at their actions. That’s the danger, not actual criminality, but the threat and stigma of criminality.

      • Shawn Musgrave

        I apologize, I did not realize you would not be able to include links in comments — as I was able to I assumed everyone would. If there is anything in particular you might want to link feel free to send it to me as an email or else post as a comment and I can handle the formatting.

        I agree entirely that intense danger lies in the stigma of criminality — if people feel that arbitrariness dictates the law’s application then they cannot but fear being found on the wrong side of it unwittingly or unjustly by design. And yes, the article did not cover case law beyond the Pentagon Papers. But case law can be overturned (Citizens United strikes me), and constitutional experts have hand over fist decried the Espionage Act for its indiscriminance at the textual level. Without meaning to co-opt you this seems like a shouting match of accord, as you agree that the Act should be overhauled. It is both the vagueness of the statute AND the manipulation of ignorance toward intimidation that make the Act egregious, not either in isolation.

        On a different note, I believe you suggested that I misquoted and/or misinterpreted Professor Vladeck in the article — I have contacted him to check but have not heard back yet. If such is the case I will of course make any necessary corrections. But your point that it is physical retention that is the operative violation of the Act seems problematic in the case of civilians accessing WikiLeaks — the Act and even its most recent amendments were passed far before the advent of the Internet. Can one (in a legal sense) un-retain downloaded information? Even if one can and so be off scot-free with regard to prosecution under the Espionage Act, the bullying and intimidation you mention remain an issue. The BU International Relations department (and I believe Political Science as well), for instance, contacted students warning them not to access WikiLeaks if they considered applying for government jobs. Again, it is BOTH the muddled text of the Act AND its invocation (even if not in a legal sense but in such a manner as to intimidate) that violates freedom of thought, conscience and access to information.

      • Shawn Musgrave

        And, lest the tit-for-tat ever lull, miscellaneous responses to factual questions.

        Manning is charged under the UCMJ, which contains the Espionage Act. However, as segments of the Espionage Act are referred to as a particular point of his charge sheet, I do not see how you cannot concede that Manning is undoubtedly charged with violating that Act. This is not an egregious misrepresentation of charges, but verbatim quotation. The charge is a violation of US Code 18 Section 793(e), alias the Espionage Act.

        The Assange article was not the best to link to, I’ll grant you. But, once again, the Grand Jury subpoena to House also mentioned the Espionage Act. Until (or perhaps if) the Grand Jury issues a public indictment, ironclad “proof” of the kind you seek will certainly be thin. But it is widely assumed that the Grand Jury is considering the case for requesting extradition of Assange to the US. This is not wild-eyed conspiracy bunk. If there is evidence to the contrary I would happily redact.

  3. decora

    i meant to say….

    the main historical precedent here are the Palmer Raids circa 1919, when the Sedition Act was part of the Espionage Act – the Sedition Act was quickly seen as a massive overreach and expired in 1921.

  4. Greg

    “Can one (in a legal sense) un-retain downloaded information?”

    Clear your cache.

    “The Assange article was not the best to link to, I’ll grant you. But, once again, the Grand Jury subpoena to House also mentioned the Espionage Act. Until (or perhaps if) the Grand Jury issues a public indictment, ironclad “proof” of the kind you seek will certainly be thin. But it is widely assumed that the Grand Jury is considering the case for requesting extradition of Assange to the US. This is not wild-eyed conspiracy bunk. If there is evidence to the contrary I would happily redact.”

    There is no proof that such a grand jury was even assembled. I haven’t seen any and I don’t think you’ve given that proof. This is the sort of thing that I was referring to.

    “Manning is charged under the UCMJ, which contains the Espionage Act. However, as segments of the Espionage Act are referred to as a particular point of his charge sheet, I do not see how you cannot concede that Manning is undoubtedly charged with violating that Act. This is not an egregious misrepresentation of charges, but verbatim quotation. The charge is a violation of US Code 18 Section 793(e), alias the Espionage Act.”

    I agreed with that. I just said that there is no reason, if the act is repealed, that an identical act won’t go into the UCMJ anyway and I don’t think that’s unreasonable.

    ” Even if one can and so be off scot-free with regard to prosecution under the Espionage Act, the bullying and intimidation you mention remain an issue. The BU International Relations department (and I believe Political Science as well), for instance, contacted students warning them not to access WikiLeaks if they considered applying for government jobs.”

    That’s such a silly thing. I know people who have government jobs who did access them. So, that’s just fear mongering on the part of the government. The threat is what’s important, and it exists. But, I don’t think that this sort of retention nonsense will ever get anyone charged. If that were true, you would see a lot more mirrors of wikileaks being shut down. We don’t see that.

    Sorry for the delay, I don’t get messages or anything when these responses occur. I didn’t have any links, I give the proof in the statements that I give. I am just saying that this website is very poorly formatted in such as I don’t know how to include a link!

    • Shawn Musgrave

      Your pith misses the point of my question as to the possibility of un-retaining downloaded information. In even a common sense consideration, clearing a cache is analogous to burning physical evidence and thus being inculpable. As “the proof is in your statements,” I assume you have no case law to back this contention up, nor do I. But to bat it aside when this is your central criticism of the article is disingenuous.

      Similarly, your argument with regard to the UCMJ v. Espionage Act continues to change while never addressing any of the actual content of this piece or my responses to your critique. In your initial diatribe: “The charges that are levied against Manning are in the UMCJ! I’d suggest you amend this part of your article, as you are, at best, purposefully obscure here. At worst, you are lying [emphasis added].” This seems a factual, categorical critique you have yet to retract in the face of plain evidence.

      Continuing the hit parade, “there is no proof that such a grand jury was even assembled”? I must for the sake of logic and sanity assume that this cannot be a genuine suggestion. I have acknowledged that no precise indictment of Assange has come out of the Grand Jury, for precisely the reason that it is a SECRET GRAND JURY which has absolutely been assembled — House and several others have been subpoenaed to appear before it.

      To end on a note of accord, we agree on the absurdity of censoring WikiLeaks . BU is not the only institution to have done so — the Air Force issued a directive suggesting that personnel and their families “may not legally access WikiLeaks at home on their personal, nongovernmental computers.” Granted, the AF later redacted the directive but the suggestion of prosecution for downloading is clearly there not only for government employees but for civilians as well. To my knowledge, WikiLeaks remains blocked to AF and other military personnel.

  5. Greg

    Also, why are the comments on this sidebar where they are awkward to read. Why not just put them at the bottom like every other site?

    • Shawn Musgrave

      Apologies for the formatting — not my department. I have had similar responses from other readers, and will pass the message along to tech powers-that-be.