40 Years Ago, The CIA's Top Lawyer Said Bringing Espionage Charges Against Leakers Was Useless

from the not-that-it-stopped-anyone... dept

Forty years ago, the general counsel for the CIA reached a conclusion that has since been ignored repeatedly — most often by the current administration. CIA GC Anthony Lapham issued a memo on the effectiveness of using the Espionage Act to punish leakers/whistleblowers. In short, Lapham found its application in this manner to be not unlike approaching every leak as a nail because all you have is a Nerf bat. (via Boing Boing)

“It is extremely doubtful that the provisions [of the Espionage Act] were intended to have application in such situations, and as a matter of historical fact, leaving aside the unsuccessful Ellsberg prosecution and possibly one or two other cases, they never have been so applied.”

Moreover, added Lapham, “Under current Justice Department procedures, unauthorized disclosures of national security information, in other than espionage situations, are almost never even investigated, let alone prosecuted.”

Our current Justice Department is more than happy to prosecute, pushed along by a president who shows little sympathy for those who expose this country’s abuses, errors, and shortcomings. The government has bagged one significant trophy — Chelsea Manning — along with a handful of other whistleblowers, and shows zero interest in holding back should Ed Snowden ever return to the US.

But with all the prosecutions, the stripping of protections for whistleblowers, the campaigns to eradicate “insider threats,” the US government still can’t stop the leaks. It has punished whistleblower after whistleblower, but Snowden continues to frustrate it, and he’s been joined by other leakers yet to be identified.

Part of the problem, as Lapham saw it four decades ago, is the government’s desire to treat every leak as threatening to national security — a desire that has only grown in size and intensity over the past 15 years.

“It seems to us that the universe of classified information is quite simply too large, and encompasses such a great variety of material of so many different degrees of importance to the national security, as to make impractical the idea of extending criminal sanctions to the unauthorized disclosure of all such information,” he wrote.

Espionage charges simply don’t make sense when information is turned over to the general public via journalists. Sure, this means the country’s enemies now have access to documents the government would prefer they hadn’t, but it’s not even slightly equivalent to handing classified documents directly to unfriendly governments. But the law is written so broadly as to forbid the disclosure of classified information to any “unauthorized person” — and this administration in particular has chosen to deploy a very literal interpretation of that phrase, rather than work within the spirit of the law, which was to protect state secrets from foreign enemies. It has been used several times in the past to punish actual spies, but in recent years, it has almost exclusively been applied to whistleblowers who have given information to journalists.

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Comments on “40 Years Ago, The CIA's Top Lawyer Said Bringing Espionage Charges Against Leakers Was Useless”

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17 Comments
Whatever says:

Re: Re: Re:

Don’t get fooled, the article is tossing out an outlier point of view that wasn’t mainstream or the norm for the agency at any point.

The GC’s view of course also fails to take into account modern things like the internet and the distribution of information. You can be sure that back in the day, there wasn’t anyone walking out the front door with 50,000 pages tucked under their arm, nor are they making a million copies of those pages. The scope and scale of any data breach at this point is so large and potentially so harmful that you cannot let it pass anymore.

Plus, you have to remember that they were still in cold war mode, and everything was focused on what the Russians knew. If you didn’t give the documents to the Russians, nobody gave a crap. There days the enemy (or the other side, as it were) is a bunch of different groups, countries, and regions. It’s not as simple anymore.

Taking a statement from 40 years ago and trying to say “see, told ya!” is amusingly silly.

Aaron Walkhouse (profile) says:

Re: Re: Re:

The GC’s view of course also fails to take into account modern things like the internet and the distribution of information. You can be sure that back in the day, there wasn’t anyone walking out the front door with 50,000 pages tucked under their arm, nor are they making a million copies of those pages. The scope and scale of any data breach at this point is so large and potentially so harmful that you cannot let it pass anymore.

Ellberg did exactly that. ‌‌ From office safe to briefcase to
Xerox machine back to briefcase back to office safe, over
and over for many days and thousands of pages.

This case is what led directly to the GC’s view.

Nixon tried to prosecute under the Espionage Act and failed
for the reason the GC expressed in his views after witnessing
the whole debacle firsthand.

That One Guy (profile) says:

"Clearly you weren't trying hard enough."

Moreover, added Lapham, “Under current Justice Department procedures, unauthorized disclosures of national security information, in other than espionage situations, are almost never even investigated, let alone prosecuted.”

-CIA general counsel, 40 years ago.

“We’ll see about that.”

-Pretty much every branch of the USG, today.

Anonymous Coward says:

Penalties aren't working

In some places, you can face life in prison or even be put to death for some crimes. Supposedly this is the harshest punishment available. Yet people still commit these crimes.

People will continue to leak information to the media regardless of severity or number of punishments. Maybe for infamy, maybe because they’re doing what they believe is right. It doesn’t matter; it will just keep occurring.

If you really want to stop leaks, you have to give whistleblowers somewhere safe to report them. And that doesn’t mean basically destroying their career after they’ve raised concerns either.

Michael J. Evans (profile) says:

Re: Penalties aren't working

There are a number of factors that would help here.

* There should be no more eternal secrets; things should be re-evaluated every so often, with a maximum limit of ~4-5 years between reviews.
* Each review should be by a completely different group.
* The full unredacted contents of a secret should be hashed (fingerprinted) and published so that each reviewing group can confirm they are reviewing the same knowledge.
* Ideally said reviews should be both internal and external.
* External auditing, in a wide circular mesh of checks and balances on the whole system, should validate the veracity and operation of the system.
* Whistleblowing should -always- be reported to external agencies (preferably at least three) which should reach their own conclusion on the matter and feed the results back in to the auditing/secret reviewing system.
* Whistleblowing should -always- be anonymous (though obviously if very few know the secret…)

Dave says:

I think you're overlooking the point...

Lapham was writing to support draft legislation that expanded the 1917 act to cover (basically) anyone authorized to have classified information giving to (basically) anyone not also authorized.

He was arguing the lack of successful prosecutions of ‘leakers’ was a bug – not a feature – and evidence of the need for the law on which he was commenting.

(He was also proposing to tighten up some if its vagaries, but that’s separate.)

Tim was right when he wrote that Lapham was arguing that the prosecution of Snowden et al would have been unsuccessful under the conditions of 1977, but we don’t operate under those laws – and haven’t for nearly 40 years.

The fact is that the legislation Lapham was reviewing did ultimately pass into law and it is what governs prosecutions today.

We can decide that it’s too broad, or just plain stupid, but it does empower the DOJ to prosecute people roughly as they do today. The fact that they didn’t do it 40 years ago isn’t because they had less resolve (or were nicer). They just lacked the legal tools.

They have those now and we are seeing the expected outcomes.

The correct remedy is to change the law; it’s the root cause of the bug.

Anonymous Coward says:

The Espionage Act was never meant to deal with whistle blowers nor journalists. It was meant to deal with spies and those the spies had turned.

Today there is so much corruption those politicians in office near have fainting spells over the slightest hint their deeds might be exposed to the public.

Look at Snowden as a very good example. There is no question that his revealing through whistle blowing did in fact raise the national awareness and forced the government to have conversations it would rather not have had which would have allowed it to continue to hide from the public. I suspect that many of these known programs were just renamed and continued on rather than actually closing up shop as some of them should have been done.

The government is highly upset that it’s fingers were caught in the cookie wrong doing jar. Rather than acknowledge what Snowden did benefited the public they would rather see him prosecuted for the airing of their dirty laundry that they set up a routine not to address the issues that whistle blowing brought up but rather to punish the individual who did reveal wrong doing. That’s not a government you can trust to do the right thing, that’s a government people should be raising cain about.

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