(My article reposted from BigPeace.com) One of the nation’s highest-ranking former spy hunters says that the
individuals responsible for the theft and publication of tens of
thousands of secret military documents should be prosecuted under
federal espionage laws.
The Obama Administration is pursuing the disclosure of more than 90,000 secret documents to WikiLeaks.org as merely the mishandling of classified information – a far less serious offense than espionage.
Administration supporters say that the leak was not espionage. But
one of the country’s most successful counterintelligence officials
argues the contrary – and says that legal precedent proves it.
“We have an excellent precedent in the case of Samuel Loring Morison,”
the naval intelligence analyst who compromised top secret U.S. imagery
intelligence capabilities, says Kenneth E. deGraffenreid [pictured], who as Deputy National Counterintelligence Executive
from 2004-2006 was the nation’s second-ranking counterintelligence
official. Morison served a two-year sentence on conviction of espionage
for having compromised U.S. secrets – not to a foreign intelligence
service, but to a British publishing company.
“The Morison case was an espionage case. Morison was charged with
espionage because he provided classified information to a foreign
power,” deGraffenreid tells BigPeace.com. It doesn’t matter that the
foreign power was a private media company housed in one of the most
solid and reliable American allies: “Morison stole U.S. secrets and
provided them to Jane’s, the British military publisher. It was like
taking U.S. defense secrets and laying them out in the street in front
of the Russians.”
Morison was convicted in1985 of taking only three classified images
and providing them to Jane’s, where he was a contributor to the annual
reference work, Jane’s Fighting Ships, about the world’s
navies. Manning, and perhaps others, provided at least 90,000, and
perhaps more than 100,000 classified documents to WikiLeaks.
Morison said he had a policy motive, to leak the satellite imagery of
the construction of a Soviet nuclear-powered aircraft carrier, in order
to convince the public to increase defense spending. By contrast,
Manning, as an active-duty soldier, is reported to have stolen the
classified files and provided them to WikiLeaks in order to undermine
the war effort.
“If you’re trying to hurt the United States, that’s part of the
crime. That’s why it’s espionage,” deGraffenreid says. “If you put this
stuff out on the Internet or in the New York Times or the Guardian,
any sentient being knows that the bad guys – the Taliban, the Russians,
the Chinese or al Qaeda – can read the secrets. It doesn’t matter if he
says he didn’t mean for them to get the information because he was just
trying to influence U.S. policy.”
DeGraffenreid was White House Senior Director of Intelligence
Programs and Special Assistant to President Ronald Reagan on the
National Security Council from 1981 to 1987, and an architect of the
successful decapitation of the Soviet KGB stations in the U.S. after the
“Year of the Spy” in 1985. During the administration of President
George W. Bush, he served as Deputy Under Secretary of Defense for
Policy and later as Deputy National Counterintelligence Executive.
WikiLeaks is an international website operated by Julian Assange,
an Australian citizen. As such, those who provided the documents to
WikiLeaks should be charged under the Morison precedent, according to
deGraffenreid. Under that precedent, it does not matter that Assange
does not work for the Australian government or that Australia is a
staunch U.S. ally.
The prime suspect in the leak is reported to be Private First Class Bradley Manning,
age 22, of the Army’s 10th Mountain Division. Manning is an
intelligence analyst with a top secret/sensitive compartmented
information (TS/SCI) security clearance who served in Iraq, but used
military computers to download classified information concerning Iraq
and Afghanistan. He is presently under military detention at an Army
facility in Kuwait, where he is suspected of leaking military combat
video to WikiLeaks.
Army investigators are treating Manning as their main suspect in the
much larger document leak, but have not officially named him or made the
formal allegation. An investigation is underway. Manning’s
military-appointed lawyer routinely refers media inquiries to Army
public affairs in Baghdad, which is not commenting on the documents
case.
News organizations howled at the Reagan Administration’s prosecution
of Morison and decried the conviction as a blow to free speech, but the
conviction was not overturned and now serves as a precedent to prosecute
the WikiLeaks case, deGraffenreid says.
According to deGraffenreid, the national secrets that Manning and
perhaps others provided to WikiLeaks is almost beyond comprehension. “If
you’re providing 100,000 files, at some point quantity has its own
quality about it. One is compromising so much material that it’s
devastating. This is what happened when John Walker provided the crypto
key for 20 years to the Soviets. He simply allowed the KGB to read so
much that it’s not even possible to do a serious damage assessment.”
“Morison was probably more confused than malicious, in terms of
motivation,” says deGraffenreid. The spy’s defense was that he was
trying to impress editors at Jane’s, where he was angling for a job
after retiring from the U.S. government.
“Morison was doing the wrong thing, and it was appropriate that he
was tried and punished. But Manning is actually mal-motivated. In terms
of scope, what he is alleged to have done is far worse than the Morison
case, because he was trying to undermine the war effort. If we are at
war and a soldier is helping the other side, if that isn’t espionage,
then what is it?”
Adding to the confusion of the case is the fact that espionage laws –
and the public’s perception of spying – haven’t kept up with
technology. “If he had stolen a single document and gave it to someone
with the intention that it spread to our enemies or potential enemies,
it would be seen as espionage. But because it’s on the internet, somehow
there’s a failure to identify this for what it is,” says deGraffenreid,
who is now a professor of intelligence studies at the Institute of World Politics, a graduate school in Washington, DC.
Like our counterterrorism laws were in 2001, U.S. espionage laws are
obsolete and need to be modernized, deGraffenreid says. “Most U.S.
espionage laws were written during World War I, and they sound archaic
if you read the legislative history. They still sound a little archaic.
Not a few people in government fear that if they use the espionage laws
on the books, some left-wing judge would strike them down. When I was in
government we had to back off putting the blocks to people because
Justice Department lawyers didn’t believe in what they were doing or
that the espionage laws could be sustained.”
Morison was convicted in 1985 under a World War I-era statute. With
the support of mainstream media organizations, he appealed his
conviction. In 1988, the Fourth U.S. Circuit Court of Appeals rejected
his appeal. The U.S. Supreme Court declined to hear the case later that
year, thus upholding the statute and the use of the espionage statute in
unauthorized disclosure. President Bill Clinton pardoned Morison on
January 20, 2001.
“One has to be childishly naïve to think when you put this out for
the whole world to read, that terrorists and hostile foreign
intelligence services would not read it, and that that doesn’t matter.
The fact is that the bad guys got these U.S. military secrets. It’s the
same as if the perpetrator went into a safe and took secret and top
secret documents and physically handed them to a foreign national. Had
Manning done that, it would have looked exactly like the espionage cases
for which others are serving life sentences. But the fact that he
allegedly transmitted electronic files, it looks different.”
There is also the idea that the theft and publication of classified
documents is somehow legitimate under whistleblowing principles to
expose alleged wrongdoing. “Most of the people who commit espionage use
weak defenses, like whistleblowing. Those defenses don’t work. If some
of the documents contain top-secret codeword material applicable under
what is called the comment statute – United States Code 18, Section 798 –
it doesn’t matter who you give the information to. If you give it to
someone who’s unauthorized, it’s an espionage crime.”
The federal investigation of the WikiLeaks case is being handled by
the Army’s Criminal Investigation Command, not by military
counterintelligence or the FBI, which handles civilian spy cases. “You
need the Criminal Investigation people, but it’s far easier in the
bureaucratic culture to go after someone for mishandling classified
information than espionage,” he adds, reflecting on his tenure as the
nation’s Deputy Counterintelligence Executive. “The moment prosecutors
start an espionage case, a lot of the military lawyers and generals turn
to jelly. It’s very hard to push these things in such bureaucratic
cultures.”
DeGraffenreid says there is a big difference between mishandling
classified information, which is what the U.S. appears to be pursuing
against Manning, and espionage. “The punishments are much lighter for
mishandling classified information. If you and I were obligated to
protect information and we lost it, or were negligent and allowed the
janitor to pick it up, that’s ‘mishandling’ classified information.
Espionage is different: you are illegally distributing the classified
information on purpose to aid a foreign entity or government.”
Judges and juries tend to be harsher on spies than federal
prosecutors are, says deGraffenreid. “Most juries convict on espionage
and most judges throw the book at spies who get convicted. Often the
judges hand down stronger sentences than the government asks for.”