“I know what’s better. I know what’s damaging and I know what’s not damaging, and I know what the Soviet Union is really all about, and I know what’s best for foreign policy and national security. . . . and I’m going to act on that.”
In what is perhaps one of the earliest spy episodes in recorded history, God directed Moses, saying: ‘Send out for yourself men who will scout the Land of Canaan, which I am giving to the Children of Israel.’
The goal of Joshua and Caleb’s expedition was to evaluate the strength of the land of Canaan as to fighting capabilities, fortification of cities and other defense measures, in addition to Canaan’s overall habitability and agricultural benefits. Fast forward 3000 years, and not a lot has changed in the world of espionage: spies are still used to report on fighting force levels, defense positions, how well the enemy is supplied, and many other aspects of military intelligence. But in addition to the more traditional espionage objectives, 21st Century spying has an increased emphasis on the theft of trade secrets, transmitting cyber-data leaks, and other information that is most harmful to one side and highly beneficial to the other. We will examine the world of latter-day espionage and the laws and legal practices involved.
Ideology, Ego, and Income
From Benedict Arnold during the Revolutionary War to Mata Hari in World War I, the ‘Doll Woman’ during World War II, and more recently, Edward Snowden during the post-Cold War era, espionage seems to know no common gender, race, political affiliation, or even motivation (America’s longest-running and most damaging spy, ‘did it for the money’). Although the most celebrated of spies seem to have breached their loyalty to their home country out of political or ideological motives during wartime, some have acted due to disgruntlement towards their employer or even to boost an apparently fragile ego.
Treason versus Espionage
Although the two terms treason and espionage are quite commonly used interchangeably, their meanings are actually different, with ‘espionage’ referring to any illicit obtaining of secret or confidential information regardless of whether it involves violating one’s allegiance to their sovereign, while ‘treason’ involves a betrayal of one’s nation regardless of whether espionage was employed or not. Furthermore, a ‘good guy’ can be employed in espionage on behalf of his or her country (think the fictional James Bond or the real-life heroine Josephine Baker), while treason is always committed against one’s own country.
Codification in American Law
On June 15, 1917, after the United States entered World War I, Congress passed the Espionage Act of 1917, whose purpose at the time of passage was to make it a crime to interfere with military operations or the U.S.’s recruitment efforts and to prevent insubordination within the military’s ranks. A further obvious reason for the enactment was to stop any assistance to the enemy in times of war. A seminal 1919 Supreme Court case that ruled as to allegations that the Act violated the Constitutional guarantees of those convicted under the statute was Schenck v. United States. Schenck had distributed flyers to draft-age men urging them to refuse induction, and he was convicted of obstructing the draft—a criminal offense under the Espionage Act of 1917. However, a unanimous Supreme Court upheld the constitutionality of the Act, deciding that the First Amendment did not protect his conduct even though, under different circumstances, he would have been within his Constitutional rights.
It is this statute that has primarily been invoked when America has prosecuted those who spy for the enemy.
Another Type of Espionage
Although we generally tend to think of espionage in terms of one country spying on another and the disclosing of military or government secrets, in recent years, another type of espionage has come to the fore, that of corporate spying—criminal conduct that can be equally damaging to a country as the other types. In fact, corporate spying (also referred to as industrial or economic spying) does not even have to involve the actual transfer of trade secrets or other confidential corporate information; rather, even the illegal investigation of a competing company in order to gain a business advantage can be considered criminal conduct.
In one such well-publicized case in 2000, Larry Ellison, co-founder and former CEO of Oracle, hired investigators to ‘dig up dirt’ on rival Microsoft regarding their funding of special interest groups. The investigators allegedly bribed cleaning staff in order to obtain important documents and even offered to buy Microsoft office trash. In that case, although there were ethics violations, no criminal violation was determined. Nevertheless, Congress’s Economic Espionage Act of 1996 has been used to stop America’s IP and other sensitive economic resource data from being forwarded to global industrial rivals.
Who Most of the Clients Are
Despite the rise in the aforementioned corporate espionage and its spin-off, cyber-espionage, it is still CIA agents and FBI agents who remain the primary targets of Espionage Act investigations. Given their access to secret and top-secret military and other intelligence-gathering information that is crucial to America’s national security on several different levels, the temptation to ‘sell out’ one’s country is apparently an enticing one at those particular agencies. In 1985, as the Cold War was winding down, FBI and CIA internal investigations uncovered numerous moles leading to the arrests of so many high-profile operatives that the year was dubbed the ‘Year of the Spies’. Among those caught up in the web were John Walker, Larry Chin, Ronald Pelton, and others.
But America’s most damaging spy, Robert Philip Hanssen, was a career FBI agent who had a 22-year spy run before being caught, tried, and given fifteen life sentences with no possibility of parole. Hanssen’s operation compromised even more U.S. ‘human assets’ than CIA agent Aldrich Ames, whose spying also led to the execution of several spies, counter-spies, and triple-counter-spies.
Defending the Indefensible
A significant number of attorneys who work in the field of espionage criminal defense are former lawyers from the DOJ, OIG, DEA, or former FBI agents turned lawyers. Their experience on the other side of an espionage case gives them a perspective and know-how about the workings of such a prosecution that is of enormous value to the investigated or indicted client. Interestingly, hundreds (or perhaps thousands) of government employees of all agencies are investigated each year for possible violations of the various espionage laws, including—perhaps unwittingly—cyber-espionage.
The stakes, of course, are quite high, with the U.S. government typically prosecuting espionage cases with little mercy due to the high risk of having critical defense and intelligence strategies compromised by conveyance to a foreign government or foreign enemy. Although jail time and severe criminal penalties are more the norm, certain violations allow for the death penalty. Furthermore, criminal prosecutions in such cases can commonly run for years and not just months.
Creating Shock and Awe
Espionage investigations are multi-agency endeavors whereby federal agencies such as the FBI and CIA routinely investigate suspected offenses jointly, resulting in the sharing of information and an increase in federal prosecutions. With that much firepower behind the prosecution, is there any real hope for the defendant?
Dr. Nick Oberheiden, the founder of espionage defense firm, Oberheiden P.C., described how the power of a government prosecution in an espionage case could be defended against, thusly: “We use former justice department trial lawyers, former senior-level IRS and FBI officials, and forensics experts with U.S. Secret Service backgrounds to create the shock and awe moment that makes the other side wonder…… ‘do I really want to fight this case?’”.
Executive Summary
The Issue
What are some of the notable espionage cases brought under U.S. espionage laws?
The Gravamen
Most espionage prosecutions have been brought under the Espionage Act of 1917, with cases including such conduct as aiding the enemy by promoting draft dodging.
The Path Forward
Today, espionage is not limited to military and other intelligence leaks but also corporate, industrial, and economic espionage that can also be quite harmful to American national security interests.
Action
A Broad-Sweeping Act:
The Espionage Act of 1917 does not just deal with aiding the enemy in wartime but also encompasses a much wider scope of conduct that the defense practitioner needs to be aware of.
‘Conditional’ First Amendment Protections:
Constitutional challenges to the Espionage Act of 1917 have resulted in a ‘look at the circumstances’ posture by the court whereby speech that might be protected under other circumstances is not so shielded when the Act is invoked.
Who Can be a Defendant?:
Unfortunately, it is becoming easier than ever for a federal employee—regardless of agency—to fall prey to an espionage investigation which, even if ultimately unfounded, can have a severe career and reputational ramifications.
The Unwitting Spy:
Cyber-espionage laws can make even the careless leak of secret or confidential information prosecutable, and practitioners must counsel their clients accordingly.
Further readings:
- https://www.spymuseum.org/exhibition-experiences/sisterhood-of-spies/
- https://www.fbi.gov/history/famous-cases/robert-hanssen
- https://www.nytimes.com/1994/07/31/magazine/why-i-spied-aldrich-ames.html
- https://www.law.cornell.edu/wex/economic_espionage
- https://www.crowdstrike.com/cybersecurity-101/cyberattacks/cyber-espionage/
