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, 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.”