Petraeus may be charged under anti-constitutional Espionage Act

Freedom of the Press Foundation -  The New York Times reported late Friday that the FBI and Justice Department have recommended felony charges against ex-CIA director David Petraeus for leaking classified information to his former biographer and mistress Paula Broadwell. While the Times does not specify, the most likely law prosecutors would charge Petraeus under is the same as Edward Snowden and many other leakers: the 1917 Espionage Act.

It remains to be seen whether Petraeus will actually be indicted (given how high-ranking government officials so often escape punishment), and the decision now sits on Attorney General Eric Holder’s desk. But this is a fascinating and important case for several reasons.

First, all of Petraeus’s powerful D.C. friends and allies are about to be shocked to find out how seriously unjust the Espionage Act is—a fact that has been all too real for many low-level whistleblowers for years.

By all accounts, Petraeus’s leak caused no damage to US national security. “So why is he being charged,” his powerful friends will surely ask. Well, that does not matter under the Espionage Act. Even if your leak caused no national security damage at all, you can still be charged, and you can’t argue otherwise as a defense at trial. If that sounds like it can’t be true, ask former State Department official Stephen Kim, who is now serving a prison sentence for leaking to Fox News reporter James Rosen. The judge in his case ruled that prosecutors did not have to prove his leak harmed national security in order to be found guilty.

It doesn’t matter what Petraeus’s motive for leaking was either. While most felonies require mens rea (an intentional state of mind) for a crime to have occurred, under the Espionage Act this is not required. It doesn’t matter that Petraeus is not an actual spy. It also doesn’t matter if Petraeus leaked the information by accident, or whether he leaked it to better inform the public, or even whether he leaked it to stop a terrorist attack. It’s still technically a crime, and his motive for leaking cannot be brought up at trial as a defense.

This may seem grossly unfair (and it is), but remember, as prosecutors themselves apparently have been arguing in private about Petraeus's case: “lower-ranking officials had been prosecuted for far less.” Under the Obama administration, more sources of reporters have been prosecuted under the Espionage Act than all other administrations combined, and many have been sentenced to jail for leaks that should have never risen to the level of a criminal indictment.

Ultimately, no one should be charged with espionage when they didn’t commit espionage, but if prosecutors are going to use the heinous Espionage Act to charge leakers, they should at least do it fairly and across the board—no matter one’s rank in the military or position in the government. So in one sense, this development is a welcome one.

For years, the Espionage Act prosecutions have only been for low-level officials, while the heads of federal agencies leak with impunity. For example, current CIA director John Brennan, former CIA director Leon Panetta, and former CIA general counsel John Rizzo are just three of many high-ranking government officials who have gotten off with little to no punishment despite the fact we know they’ve leaked information to the media that the government considers classified

Wikipedia - A year after the Act's passage, Eugene V. Debs, Socialist Party presidential candidate in 1904, 1908, and 1912 was arrested and sentenced to 10 years in prison for making a speech that "obstructed recruiting". ...

In United States v. Motion Picture Film (1917), a federal court upheld the government's seizure of a film called The Spirit of '76 on the grounds that its depiction of cruelty on the part of British soldiers during the American Revolution would undermine support for America's wartime ally. The producer, Robert Goldstein, a Jew of German origins, was prosecuted under Title XI of the Act, and received a ten-year sentence plus a fine of $5000. The sentence was commuted on appeal to three years.

Postmaster General Albert S. Burleson ... sent a secret memo to all postmasters ordering them to keep "close watch on ... matter which is calculated to interfere with the success of ... the government in conducting the war". Postmasters in Savannah, Georgia, and Tampa, Florida, refused to mail the Jeffersonian, the mouthpiece of Tom Watson, a southern populist, an opponent of the draft, the war, and minority groups. When Watson sought an injunction against the postmaster, the federal judge who heard the case called his publication "poison" and denied his request...

During the Red Scare of 1918–19, in response to the 1919 anarchist bombings aimed at prominent government officials and businessman, U.S. Attorney General A. Mitchell Palmer, supported by J. Edgar Hoover, then head of the Justice Department's Enemy Aliens Registration Section, used the Sedition Act of 1918, which extended the Espionage Act to cover a broader range of offenses, to deport several hundred foreign-born in the U.S., including Emma Goldman, to the Soviet Union on a ship the press called the "Soviet Ark".

Many of the jailed challenged their convictions based on the U.S. constitutional right to free speech. The Supreme Court disagreed. The Espionage Act limits on free speech were ruled constitutional in the United States Supreme Court case Schenck v. United States, 249 U.S. 47 in 1919. Schenck, an anti-war Socialist, had been convicted of violating the Act when he sent anti-draft pamphlets to men eligible for the draft. Although Supreme Court Justice Oliver Wendell Holmes joined the Court majority in upholding Schenck's conviction in 1919, he also introduced the theory that punishment in such cases is limited to political expression that constitutes a "clear and present danger" to the government action at issue. Holmes' opinion is also the origin of the notion that speech equivalent to "falsely shouting fire in a crowded theater" is not protected by the First Amendment.

Justice Holmes began to doubt his decision due to criticism received from free speech advocates. He also met the Harvard Law professor Zechariah Chafee and discussed his criticism of Schenck.[35][36]

Later in 1919, in Abrams v. United States, the Supreme Court upheld the conviction of a man who distributed circulars in opposition to American intervention in Russia following the Russian Revolution. The concept of bad tendency was used to justify the restriction of speech. The defendant was deported. Justices Holmes and Brandeis, however, dissented.

In March 1919, President Wilson, at the suggestion of Attorney General Thomas Watt Gregory, pardoned or commuted the sentences of some 200 prisoners convicted under the Espionage Act or the Sedition Act. By the end of 1920, the Red Scare had faded, Palmer left government, and the Espionage Act fell into relative disuse. World War II

Prosecutions under the Act were far less numerous during World War II than they had been during World War I. Associate Justice Frank Murphy noted in 1944 in Hartzel v. United States that "For the first time during the course of the present war, we are confronted with a prosecution under the Espionage Act of 1917." Hartzel, a World War I veteran, had distributed anti-war pamphlets to associations and business groups. The court's majority found that his materials, though comprising "vicious and unreasoning attacks on one of our military allies, flagrant appeals to false and sinister racial theories, and gross libels of the President", did not urge mutiny or any of the other specific actions detailed in the Act, and that he had targeted molders of public opinion, not members of the armed forces or potential military recruits. The court overturned his conviction in a 5–4 decision...

The Act was used in 1942 to deny a mailing permit to Charles Coughlin's weekly Social Justice, effectively ending its distribution to subscribers. It was part of Attorney General Francis Biddle's attempt to close down what he called "vermin publications". The same year, a front page story in the Chicago Tribune implied that the U.S. had broken Japanese codes, which might have prompted the Japanese to change their codes and destroy any advantage the U.S. had gained through successful cryptanalysis. The newspaper was brought before a grand jury, but proceedings were halted because of government reluctance to present a jury with highly secret information necessary to prosecute the publishers as well as concern that a trial would attract more attention to the case.

Guardian, UK - The 1917 Espionage Act has gone through some amendments over the years but its language still reflects the security concerns of a century ago, with references to railroads, forts and telegraphs. But its all-encompassing character has stood the test of time. Section 793 of the law makes it an offence to take, retain or transfer knowledge "with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation".

The law does not stipulate whether the information involved would have to be classified, as that word was not in usage at the time the act was passed. More importantly from Snowden's point of view, it says nothing about exemptions for leaks claiming to be in the public interest.

"As much as some may want Snowden to be applauded for his actions, as a legal matter his self-stated laudable intentions are irrelevant to his criminal liability. He can only hope that it will play a role in his sentencing," argued Mark Zaid, a Washington attorney who regularly represents national security whistleblowers....

In the most famous attempt to use the act to prosecute a whistleblower, against Daniel Ellsberg, military analyst at the Rand Corporation who leaked documents on the conduct of the Vietnam war, the case was thrown out in 1973 after it emerged that Ellsberg had been illegally wiretapped.

Shamai Leibowitz, a FBI linguist who pleaded guilty to leaking details of wiretaps of the Israeli embassy in Washington to a blogger, was sentenced in May 2010 to 20 months in prison.

In the most similar case to Snowden's, a NSA employee called Thomas Drake was charged in 2010 with 'mishandling documents' for disclosing details of the agency's Trailblazer program – a means of mass collection of data, like the Prism program leaked by Snowden. However, he was able to demonstrate he had not given away classified material, and all ten charges against him were dropped.

Some Espionage Act prosecutions from press leaks are still under way. Jeffrey Sterling, a former CIA employee, is being tried for passing to the New York Times details of a plan to pass flawed nuclear weapon blueprints to the Iranians. He has pleaded not guilty. Meanwhile, the court martial of Bradley Manning, the army private charged with the mass release of defence and state department cables to Wikileaks, is under way in Fort Meade, outside Washington.

Manning's treatment while in solitary confinement, which was described by the UN special rapporteur on torture as "cruel, inhuman and degrading", may now bolster Snowden's precarious chances of avoiding a US trial altogether by fighting extradition.

"In terms of seeking asylum, Snowden would definitely qualify in terms of fear of persecution," Radack said. "Bradley Manning would be exhibit A in that argument."