An antiquated World War I-era spy law with links to a string of Jewish figures over the year has unexpectedly grabbed the global spotlight as America’s government tries to keep a lid on the National Security Agency snooping scandal.
The Espionage Act of 1917 has emerged in recent years as a key tool in the fed’s arsenal against Edward Snowden and other assorted whistleblowers, officials leaking information and journalists who report their stories.
Originally intended to combat foreign spying, the 96-year-old statute has morphed into an anti-leak tool involving many Jewish suspects, including Pentagon Papers leaker Daniel Ellsberg, senior staffers for the American Israel Public Affairs Committee and journalists recently named as co-conspirators for publishing classified information.
Advocates of prosecuting leakers based on the Espionage Act argue that despite its imperfections, the statute provides the only reasonable legal vehicle for dealing with officials disclosing government secrets, such as Bradley Manning, who provided Wikileaks with a trove of military and diplomatic documents, and Snowden, the CIA contractor who revealed the existence of NSA programs for spying on telephone and Internet activities.
But civil liberties advocates warn that prosecutions under the law have ballooned in recent years. The Obama administration has issued more indictments under the Espionage Act than all previous administrations combined. The statute was also used to pinpoint reporters publishing leaked information as “unindicted co-conspirators.”
“I’m not surprised that a Democratic administration is doing it more than a Republican one,” said Morton Halperin, senior adviser at the Open Society Foundations. Halperin served in key foreign policy positions in previous administrations, and also as Washington director of the American Civil Liberties Union.
“It is being used to protect themselves from Republican claims that they are the leakers or that they’ve done too little to prevent leaks,” he said.
One of the first major prosecutions under the Espionage Act in modern times was the 1973 trial of Ellsberg, who leaked a 7,000-page report on the Vietnam War, known as the Pentagon Papers, to The New York Times and The Washington Post.
Ellsberg, who was born to Jewish parents who converted to Christianity, was put on trial, but a judge dismissed the case amid widespread prosecutorial irregularities, including revelations that his phone was tapped. Ellsberg is now a leading voice in the battle against government prosecution of whistleblowers and has spoken out against the prosecution of Manning and against Snowden’s indictment.
The most extreme use of the Espionage Act, experts agree, was carried out in 2004, when George W. Bush’s Department of Justice charged Steve Rosen and Keith Weissman, lobbyists at the pro-Israel lobby AIPAC.
They were accused of receiving classified information from a Pentagon official and passing it on to the media and to an Israeli diplomat. The case marked the first time the Espionage Act was used against individuals who were not government officials and did not have authorized access to official secrets.
The case was eventually dismissed after President Obama won the presidency in 2008. The Pentagon official, Larry Franklin, entered a plea agreement and served his reduced sentence in community service.
The case’s dismissal succeeded for the most part in deterring the government from attempting again to charge lobbyists or reporters as spies. But it came with a heavy personal price for the defendants, who had both lost their jobs with AIPAC and still carry the stigma of being indicted in an espionage case.
“For a lot of people, before they meet you for the first time, they Google you,” Rosen said in an interview. The Internet search immediately brings up Rosen’s indictment on espionage charges. Its dismissal is harder to find. “On the other hand,” he added, “you’d be surprised to know that there are many people out there that know that cases like this are nonsense.”
Rosen currently works for two advocacy organizations and said he does not encounter difficulties in meeting with American and foreign government officials.
Initially, Rosen had planned to use his experience to mount a public case against the overreach of government secrecy and the use of espionage-related statutes for prosecution of civilians dealing with secret information. But, after signing a book contract and submitting a 300-page manuscript, he decided to back down.
“I began to have second thoughts,” he said. “My life’s work is not fighting for the First Amendment. I’m a Middle East guy.” He also learned that some of those showing interest in his story did it for the wrong reasons. “Many people wanted it to be an anti-AIPAC book,” Rosen said.
This statement touches on a sentiment that many of those involved in the case share, a feeling that because the case involved Israel and the pro-Israel lobby, it did not benefit from the power of civil rights organizations and individuals who otherwise would have made it into a test case for fighting against government infringement of free speech.
“Many of these organizations didn’t want to be out there helping AIPAC,” said Baruch Weiss, a Washington attorney who represented Keith Weissman in the case. “But definitely, people are speaking out more now than they did in our case.”
Halperin, who advised the defense team in the AIPAC case, explained the relatively muted reaction to the Espionage Act prosecution at the time by noting that many held a misperception “that it was a case about AIPAC leaking to the Israeli government… and that’s why they were not concerned.”
So far, the Obama administration has used the Espionage Act eight times. Along with Snowden, the government has also charged other Pentagon, CIA and NSA employees and contractors, including FBI translator Shamai Leibowitz, who was accused of leaking information to a blogger about the U.S.’s wiretapping of the Israeli Embassy. In four cases, including that of Leibowitz, the espionage charge was later replaced with lesser charges.
But while steering clear of repeating the mistake of the AIPAC case prosecution, the government has used mentions of the Espionage Act in going after reporters holding information that prosecutors deemed as necessary for their investigation. Such was the case with Fox News reporter James Rosen, named as an unindicted co-conspirator in a leak case, a move needed to obtain a search warrant for his communications.
Long Island Rep. Peter King suggested recently that Glenn Greenwald, the reporter from The Guardian who uncovered the NSA snooping program, should also be charged.
Some observers note that the increasing number of cases based on the Espionage Act may be somewhat deceptive because the number of officials with access to classified information has also increased dramatically in the past decade.
Advocates and legal experts also note that there is scant other legislation on the books dealing directly with classified information leaks. Current laws target some specific aspects of information leaks, such as revealing the identity of intelligence agents or disclosing intelligence communications, but there is no overall statute that would criminalize unlawful disclosure of information.
Such a legislative move might finally put the dusty 96-year-old law back in the history books and take it off the front pages.
“If Congress passes such a law and makes clear that the Espionage Act will no longer be directed against leaks to the press, that would be a reasonable trade-off,” Halperin said.
Nathan Guttman, staff writer, is the Forward’s Washington bureau chief. He joined the staff in 2006 after serving for five years as Washington correspondent for the Israeli dailies Haaretz and The Jerusalem Post. In Israel, he was the features editor for Ha’aretz and chief editor of Channel 1 TV evening news. He was born in Canada and grew up in Israel. He is a graduate of the Hebrew University of Jerusalem.