In the short run, President Obama’s suggestion that mishandling classified documents is not necessarily a criminal offense merely signals his intention to keep a prominent Democrat out of jail. But him pointing to the complexity of U.S. law regarding secrets, after his administration has brought more prosecutions for disclosures of classified information under the Espionage Act of 1917 than all presidencies combined, points to how well that complexity lends itself to political game-playing.
Full disclosure: During a tour as a security officer in the Navy, I conducted security reviews. During eight years on the Senate Intelligence Committee staff I helped oversee investigations into any number of security breaches in all the agencies. At the same time, I used and originated countless classified documents, including ones relating to most of the U.S. government’s Special Access Programs—everything from stealth, to the use of submarines for intelligence, to nuclear weapons.
What follows is to shed light on this dangerous complexity and, incidentally on the legal load that Obama means to lift from Hillary Clinton’s shoulders.
American Law Supports the Public’s Right to Know
Unlike in Britain, where the Official Secrets Act lets the government penalize people for disclosing or disseminating whatever information the government chooses to keep secret, U.S. law is based on the premise that the public has the right to know what the government is doing, and that the government must justify exceptions to that right. The Espionage Act of 1917 (now in 18 U.S. Code 793-798) prohibits the release, communication, or transmission of “information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation…” (793 c).
Having reason to know that the information in question could be used to injure the United States means, in practice, that the accused does not have a good argument that circulating it is either irrelevant or actually helpful to America. That fits well with reality. After all, designating a document as some kind of secret is merely the opinion of the person wielding the stamp. Others may differ. Few will disagree that much if not most stuff that is labeled Confidential, Secret, or Top Secret is no such thing.
There are exceptions. The so-called Special Access Programs are such as to obviate any argument that releasing information about them is harmless. Also, section 798, the so-called Comint Statute, assumes that all who handle information relating to the sources and methods of communications intelligence know its inherent importance, and hence penalizes disclosure of any and all of it.
Leaking Is a Political Weapon
In practice, high officials in all administrations have leaked with impunity any and all matters in political-bureaucratic warfare while using charges of leaking against their lower-ranking opponents. During the 1980s I saw our only communications intelligence satellite splashed on The New York Times’ front page—gratuitously and with impunity—courtesy of a courtier of the secretary of State, and a $3 billion submarine intelligence program leaked and destroyed by a high official who then took some of that money for his own agency.
Throughout the intelligence community, lunch with The New York Times generally is a badge of distinction, while you go to lunch with the Washington Times at the risk of your career. But all administrations have pursued leaks that call into question their competence, judgment, or political priorities. As often as not, the initiative for criminalizing the disclosure of unfavorable information comes from the bureaucracy. The point is straightforward: there is nothing objective in the U.S. government’s attempt to stanch leaks. Nor is the Obama administration unique in protecting its own favorites.
The Espionage Act’s new currency in our time is due to the fact that 9/11 and terrorism have reinforced the government’s perennial argument that more power and secrecy for the security agencies will result in a greater degree of safety for Americans. But, whether in the case of the prosecution that the Bush administration initiated against Times reporter James Risen for reporting a failed CIA operation to thwart Iran’s uranium enrichment program or the Obama administration’s prosecution of Fox News reporter James Rosen for reporting its failure to thwart North Korea’s nuclear program, the reason for the anger had everything to do with the reputation of those in power.
Nor was Department of Defense employee Lawrence Franklin sentenced to 13 years in prison (reduced to ten months of house arrest) for giving verbal classified information to the Israeli lobby because of any argument that the substance of the information he passed had made the American people less secure. No.
It’s Not About the Law, It’s About Power
The contemporary argument for current use of the Espionage Act is not more than that for the British Official Secrets Act: What the government says is secret must stay secret, and all procedures must be followed to keep it that way, unless those at the top take you under their wing.
But even under the older, more permissive view of the Espionage Act, Hillary Clinton is in big trouble. It is not possible to argue that she maintained a private system of communication for public business in a fit of absentmindedness. Pleading ignorance or nonchalance about whether the information that crossed her inbox over four years as secretary of State was irrelevant to the safety of Americans is untenable prima face.
Nor can she take refuge in the fact that much classified information is classified improperly. Surely, secretaries of State get documents that come from communication intercepts, unmistakably. Mishandling those is supposed to get you ten years in the slammer plus a $10,000 fine for each count. Then there are the Special Access Programs, the very subject matter of which justifies the Codeword classification.
In short, her case cannot be laid in front of a jury, grand or petit, without a nasty outcome. That is why the Democratic Party cannot allow it to get there. Obama can attempt to minimize her predicament only so long as it is done by generalities.
But while Clinton’s confrontation with the Espionage Act can be solved by a presidential pardon, if not by election to the presidency, its contemporary usage well-nigh eliminates the element of reason and of the actual value of classified information from the law, thus transmuting it into something like an Official Secrets Act. This poses a big problem for the rest of us.