The Legal Nature and Consequences of Espionage

The Legal Nature and Consequences of Espionage

by:?Dennis P. McNamee, Esq.

Espionage in general:

Prosecuting the crime of espionage is intended to punish those who share sensitive information that would be harmful to U.S. interests, and is often part of an institutional effort by a government (not always the United States government) or commercial concern. Violations of the law can take as many forms as there are types of communication. The violations of United States Law concerning espionage are contained in 18 U.S. Code Chapter 37 § 793, et. seq. Three of the sections of this law for which violations occur most often, and have been in the news repeatedly, are reproduced at the end of this essay in addition to the section headings for what is commonly termed the Espionage Act of 1917. In the minds of most people, the term tends to be associated with state spying on real or imagined adversaries for military purposes. Spying involving corporations is known as industrial espionage and is common as well. Almost all sovereign states have strict laws concerning espionage. The penalties for being found guilty are often severe. An act of espionage against one sovereign nation can also be committed against other nations in the same action depending on the contents of communications obtained or contents of photos, messages or other intelligence.

One way to gather data and information about a target organization is by infiltrating its ranks or the location in which the target is operating either undercover in the short term, or by long term implantation, such as a sleeper cell for future activation. Spies can then return information such as the size and strength of enemy forces. They can also find separatists within the organization and influence them to provide information, often for pay, or to defect with assistance. In times of crisis, spies steal technology, as well as classified documents and/or sabotage the enemy in numerous ways. Counterintelligence is the practice of thwarting enemy espionage and intelligence-gathering, often by using the same or similar techniques as as an espionage agent. Some of the more common techniques, known as spycraft are:

???Agent handling

???Biographic leverage

???Concealment device

???Covert agent

???Covert listening device

???Cyber spying

???Dead drop

???Honeypot

???Impersonation

???Non-official cover

???Official cover / embassy or organizaton staff

???Sabotage

???Surveillance

???Surveillance aircraft and

???Surveillance satelites.

Early History of the Espionage Act of 1917.

The first espionage act, was written for, and enacted by, the Continential Congress in August of 1776 by the Committee of Spies. In 1917, soon after the United States formally entered World War I, Congress passed the Espionage Act. This law prohibited the sharing of information intended to disrupt U.S. military interests or aid its enemies, punishable by 20 years in prison and a $20,000 fine. The Sedition Act was passed the following year, reinforcing the Espionage Act by prohibiting the issuance of false statements intended to disrupt the war effort, in addition to broad provisions that were eventually overturned (such as the banning of "disloyal, profane, scurrilous, or abusive language" about the United States). Congress repealed the Sedition Act in 1921 due to its heavy-handed suppression of free speech.

While there have been many First Amendment challenges to the Espionage Act since its passage, it has remained largely intact. In Schenck v. United States, 249 U.S. 47 (1919), for example, the U.S. Supreme Court unanimously held that the distribution of flyers urging draft-age men to resist military induction was not protected by the First Amendment. Justice Oliver Wendell Holmes stated that, "While it may not seem like espionage in the classic sense, the petitioner's conviction was upheld as a violation of the Espionage Act, even though, 'in many places and in ordinary times, (his actions) would have been within his constitutional rights.' But the character of every act depends upon the circumstances in which it is done." In this case, Holmes said, "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Therefore, Schenck could be punished under the Act.

More Recently:

Since the end of World War II, the activity of espionage has enlarged, much of it growing out of Cold War tensions between the United States and the former USSR, and now the confrontations with the Peoples' Republic of China. The Russian Empire and its successor, the Soviet Union have had a long tradition of espionage ranging from the Okhrana to the KGB / NKVD (Committee for State Security), which also acted as a secret police force and the GRU, the military intelligence branch. In the United States, the 1947 National Security Act created the Central Intelligence Agency (CIA) to coordinate intelligence and the National Security Agency for research into codes and electronic communication. In addition to these, the United States has a total of 15 other intelligence gathering agencies. Most of the U.S. expenditures for intelligence gathering are budgeted to various Defense Department agencies and their programs. Under the intelligence reorganization of 2004, the Director of National Intelligence is responsible for overseeing and coordinating the activities and budgets of the U.S. intelligence agencies. A listing of all 17 United States intelligence agencies may be found on the website of the Director of National Intelligence at: https://www.dni.gov/index.php/what-we-do/members-of-the-ic .

In the Cold War, espionage cases included Alger Hiss and Whittaker Chambers and the Rosenberg Case. In 1952 the Communist Chinese captured two CIA agents, and in 1960 Francis Gary Powers, flying a U-2 reconnaissance mission over the Soviet Union for the CIA, was shot down and captured. During the Cold War, many Soviet intelligence officials defected to the West, including Gen. Walter Krivitsky, Victor Kravchenko, Vladimir Petrov, Peter Deriabin Pawel Monat, and Oleg Penkovsky, of the GRU (Soviet military intelligence). Among Western officials who defected to the Soviet Union are Guy Burgess and Donald D. Maclean of Great Britain in 1951, Otto John of West Germany in 1954, William H. Martin and Bernon F. Mitchell, U.S. cryptographers, in 1960, and Harold (Kim) Philby of Great Britain in 1962. U.S. acknowledgment of its U-2 flights and the exchange of Francis Gary Powers for Rudolf Abel in 1962 implied the legitimacy of some espionage as an arm of foreign policy.

China has a very cost-effective intelligence program that is especially effective in monitoring technological and military competitors and neighboring countries such as Mongolia, Russia, and India. Smaller countries can also mount effective and focused espionage efforts. For instance, the Vietnamese communists had consistently superior human intelligence gathering during the Vietnam War; a program which was copied by the United States 5th Special Forces Gamma Project, the most highly praised indigenous allied gathering program in that conflict. Some Islamic countries, including Libya, Iran, and Syria, have highly-developed operations as well. SAVAK, the secret police of the Pahlavi dynasty, was particularly feared by Iranian dissidents before the 1979 Iranian Revolution.

Elements of the Crime of Espionage:

Generally, an espionage conviction requires U.S. prosecutors to prove the following elements:

??1. Information transmitted is classified government information or relates to national defense ; and

??2. The accused acted with the intent or reason to believe the information will harm the United States or help a foreign nation (not

necessarily an "enemy" of the United States); and

??3. There was a willful communication, transfer, or receipt of the information; or

??4. There was an overt act in furtherance of a conspiracy to commit espionage.

It is not necessary for the act in question to actually cause any harm to the United States (or help any foreign nations), nor does the government have to prove that the disclosed information actually was closely held and a threat to national security. So if the accused were to leak or share information that is actually incorrect or otherwise not a threat to national security, they still could be convicted if all other elements are proven.

What it Means to Commit Espionage:

18 U.S. Code Chapter 37 § 793, et. seq., specifies the following acts as violations of the Espionage Act:

???To enter or obtain information about any place connected with national defense for the purpose of obtaining information respecting national defense 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;

???For one who has lawful possession of certain documents, photographs, models, and similar material to transmit such material to one not authorized to receive it;

???To make or copy, or attempt to make or copy, any sketch, photograph, plan, and the like of anything connected with national defense for such purpose; or

???To receive or agree or attempt to receive from any person such materials when the recipient has reason to believe that they were taken in violation of the Espionage Act.

Additionally, the law also prohibits several activities that are related, even though the commission of those acts doesn't necessarily indicate intent to endanger the United States or help its enemies:

???Harboring or concealing any individual, whether domestic or foreign in origin, whom the concealing party has reason to believe has committed or is about to commit an offense under federal espionage laws.

???Photographing or representing defense installations without prior permission of and censorship by the commanding officer;

???The use of aircraft to accomplish the same proscribed purpose;

???The publication and sale of photographs or representations of defense installations without prior permission of and censorship by the commanding officer;

???The knowing and willful disclosure of classified information to an unauthorized person, or its use in any manner prejudicial to the United States or beneficial to any foreign government to the detriment of the United States; or

???The willful violation, attempted violation, or conspiracy to violate regulations of the National Aeronautics and Space Administration pertaining to the security of its facilities or equipment.

Sentencing and Penalties for Espionage:

Sentences and other penalties for espionage vary according to the facts of the case, but typically include long prison sentences, often for life (as do other crimes against the government). Members of the military who are convicted of the crime may receive the death penalty "or such other punishment as a court-martial may direct," according the the Uniform Code of Military Justice. While most federal crimes have a five-year statute of limitations, acts of espionage generally carry a 10-year statute of limitations.

https://www.findlaw.com/criminal/criminal-charges/espionage.html

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From: https://www.law.cornell.edu/uscode/text/18/part-I/chapter-37

18 U.S. Code Chapter 37 § 793, et. seq.

???[§ 791. Repealed. Pub. L. 87–369, § 1, Oct. 4, 1961, 75 Stat. 795]

???§ 792. Harboring or concealing persons

???§ 793. Gathering, transmitting or losing defense information

???§ 794. Gathering or delivering defense information to aid foreign government

???§ 795. Photographing and sketching defense installations

???§ 796. Use of aircraft for photographing defense installations

???§ 797. Publication and sale of photographs of defense installations

???§ 798. Disclosure of classified information

???§ 798A. Temporary extension of section 794

???§ 799. Violation of regulations of National Aeronautics and Space Administration

?18 U.S. Code § 793 - Gathering, transmitting or losing defense information

(a) Whoever, for the purpose of obtaining information respecting the national defense 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, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or

(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or

(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

(h)

(1) Any person convicted of a violation of this section shall forfeit to the United States, irrespective of any provision of State law, any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, from any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, as the result of such violation. For the purposes of this subsection, the term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1) of this subsection.

(3) The provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)–(p)) shall apply to—

(A) property subject to forfeiture under this subsection;

(B) any seizure or disposition of such property; and

(C) any administrative or judicial proceeding in relation to such property,

if not inconsistent with this subsection.

(4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund in the Treasury all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

(June 25, 1948, ch. 645, 62 Stat. 736; Sept. 23, 1950, ch. 1024, title I, § 18, 64 Stat. 1003; Pub. L. 99–399, title XIII, § 1306(a), Aug. 27, 1986, 100 Stat. 898; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147; Pub. L. 103–359, title VIII, § 804(b)(1), Oct. 14, 1994, 108 Stat. 3440; Pub. L. 104–294, title VI, § 607(b), Oct. 11, 1996, 110 Stat. 3511.)

?18 U.S. Code § 794 - Gathering or delivering defense information to aid foreign government

?(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

(b) Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates, or attempts to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for any term of years or for life.

(c) If two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

(d)

(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law—

(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation, and

(B) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.

For the purposes of this subsection, the term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1) of this subsection.

(3) The provisions of subsections (b), (c) and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)–(p)) shall apply to—

(A) property subject to forfeiture under this subsection;

(B) any seizure or disposition of such property; and

(C) any administrative or judicial proceeding in relation to such property,

if not inconsistent with this subsection.

(4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund in the Treasury all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

(June 25, 1948, ch. 645, 62 Stat. 737; Sept. 3, 1954, ch. 1261, title II, § 201, 68 Stat. 1219; Pub. L. 99–399, title XIII, § 1306(b), Aug. 27, 1986, 100 Stat. 898; Pub. L. 100–690, title VII, § 7064, Nov. 18, 1988, 102 Stat. 4404; Pub. L. 103–322, title VI, § 60003(a)(2), Sept. 13, 1994, 108 Stat. 1968; Pub. L. 103–359, title VIII, § 804(b)(2), Oct. 14, 1994, 108 Stat. 3440; Pub. L. 104–294, title VI, §§ 604(b)(2), 607(b), Oct. 11, 1996, 110 Stat. 3506, 3511.)

?18 U.S. Code § 798 - Disclosure of classified information

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined under this title or imprisoned not more than ten years, or both.

(b) As used in subsection (a) of this section—

The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;

The terms “code,” “cipher,” and “cryptographic system” include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications;

The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;

The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;

The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

(c) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any regularly constituted committee of the Senate or House of Representatives of the United States of America, or joint committee thereof.

(d)

(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law—

(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and

(B) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.

(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1).

(3) Except as provided in paragraph (4), the provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)–(p)), shall apply to—

(A) property subject to forfeiture under this subsection;

(B) any seizure or disposition of such property; and

(C) any administrative or judicial proceeding in relation to such property,

if not inconsistent with this subsection.

(4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund established under section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601) [1] all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

(5) As used in this subsection, the term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

(Added Oct. 31, 1951, ch. 655, § 24(a), 65 Stat. 719; amended Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147; Pub. L. 103–359, title VIII, § 804(a), Oct. 14, 1994, 108 Stat. 3439; Pub. L. 104–294, title VI, § 602(c), Oct. 11, 1996, 110 Stat. 3503.)

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