DOJ On The Verge Of Dropping Third Straight Espionage Prosecution

Legal Issues

from the ever-vigilant-against-the-threat-of-non-spycraft dept

Maybe the DOJ has grown accustomed to the FBI handing over fully-groomed terrorists for it to prosecute. Its recent attempts to go outside of the realm of young, impressionable men when seeking spy-related prosecutions have gone disastrously.

Last month, it thought it had cornered a pesky Chinese spy and found itself instead looking at someone who had committed no criminal activity. The feds believed Xi Xiaoxing (the head of Temple University’s physics department) had shared secret semiconductor-related blueprints with Chinese scientists. Well after moving forward with its prosecution, the DOJ discovered the FBI’s investigative work had come to erroneous conclusions. It dropped all charges and left Xiaxiong to pick up the pieces of his shattered life.

This came on the heels of the DOJ’s aborted prosecution of Sherry Chen, a National Water Service employee. While visiting China she passed on some PUBLIC website links related to water reservoir funding to a friend of hers, who was a senior official in China’s Ministry of Water. She also put him in touch with a former colleague from the Army Corps of Engineers, who rewarded the official’s queries by reporting this contact to the DOJ. Another life was turned upside down based on the most specious of suspicions.

Third time’s the charm. The DOJ is seemingly ready to drop another espionage-related prosecution due to a lack of culpatory evidence. (h/t Unredacted)

Last fall, federal agents raided the home and office of Robin L. Raphel in search of proof that she, a seasoned member of America’s diplomatic corps, was spying for Pakistan. But officials now say the spying investigation has all but fizzled, leaving the Justice Department to decide whether to prosecute Ms. Raphel for the far less serious charge of keeping classified information in her home.

The fallout from the investigation has in the meantime seriously damaged Ms. Raphel’s reputation, built over decades in some of the world’s most volatile countries.

An intercepted conversation involving Raphael, collected during routine surveillance of Pakistani officials, seemed to suggest the State Department advisor was passing on state secrets. The government put Raphael under surveillance for several weeks, which culminated in a search of her home and office. The DOJ then stripped her of her security clearances, but refused to give her any information about its suspicions.

The smoking gun the DOJ found was tepid, given its recent prosecutorial history: some classified documents in Raphael’s home. At this point, the DOJ doesn’t appear to have any evidence this information was distributed, which puts Raphael in the company of other mishandlers of sensitive documents — like General Petraeus… and Hillary Clinton. The range of punishments those two received ranged from a wrist slap to nothing at all. If the DOJ’s going to maintain any consistency (and it won’t), Raphael should receive something within that same range. And if that’s all that’s to come of it, it hardly seems worth pursuing.

For her part, Raphael has rejected the plea deals offered by the DOJ, claiming she’s actually innocent. At most, she took home documents she shouldn’t have. The DOJ seems hesitant to move forward, although the New York Times quotes anonymous prosecutors who would like to see her charged with a felony under the Espionage Act — charges that could result in years of prison time. To do so would be unnecessarily punitive, considering the government’s ongoing refusal to punish members of the “in crowd.”

Even if the DOJ decides to drop the case, Raphael may be no better off than Thomas Drake — another person whose career was destroyed over the alleged “mishandling” of classfied documents. The government claimed Drake held onto classified documents — despite being told to hold onto them by the Inspector General investigating his whistleblower case and despite these documents being declassified before the prosecution was over. Drake went from working with the NSA to manning an Apple store “Genius Bar.” Raphael is likely on a similar path, even if charges are dropped. Officials from combative nations will be far less likely to confide in someone who’s obviously under US government surveillance and the US government itself likely won’t be offering her any advancement opportunities.

Filed Under: classified information, doj, espionage, robin raphel