40 Years Ago, The CIA's Top Lawyer Said Bringing Espionage Charges Against Leakers Was Useless

from the not-that-it-stopped-anyone... dept

Forty years ago, the general counsel for the CIA reached a conclusion that has since been ignored repeatedly -- most often by the current administration. CIA GC Anthony Lapham issued a memo on the effectiveness of using the Espionage Act to punish leakers/whistleblowers. In short, Lapham found its application in this manner to be not unlike approaching every leak as a nail because all you have is a Nerf bat. (via Boing Boing)

“It is extremely doubtful that the provisions [of the Espionage Act] were intended to have application in such situations, and as a matter of historical fact, leaving aside the unsuccessful Ellsberg prosecution and possibly one or two other cases, they never have been so applied.” Moreover, added Lapham, “Under current Justice Department procedures, unauthorized disclosures of national security information, in other than espionage situations, are almost never even investigated, let alone prosecuted.”

Our current Justice Department is more than happy to prosecute, pushed along by a president who shows little sympathy for those who expose this country's abuses, errors, and shortcomings. The government has bagged one significant trophy -- Chelsea Manning -- along with a handful of other whistleblowers, and shows zero interest in holding back should Ed Snowden ever return to the US.

But with all the prosecutions, the stripping of protections for whistleblowers, the campaigns to eradicate "insider threats," the US government still can't stop the leaks. It has punished whistleblower after whistleblower, but Snowden continues to frustrate it, and he's been joined by other leakers yet to be identified.

Part of the problem, as Lapham saw it four decades ago, is the government's desire to treat every leak as threatening to national security -- a desire that has only grown in size and intensity over the past 15 years.

“It seems to us that the universe of classified information is quite simply too large, and encompasses such a great variety of material of so many different degrees of importance to the national security, as to make impractical the idea of extending criminal sanctions to the unauthorized disclosure of all such information,” he wrote.

Espionage charges simply don't make sense when information is turned over to the general public via journalists. Sure, this means the country's enemies now have access to documents the government would prefer they hadn't, but it's not even slightly equivalent to handing classified documents directly to unfriendly governments. But the law is written so broadly as to forbid the disclosure of classified information to any "unauthorized person" -- and this administration in particular has chosen to deploy a very literal interpretation of that phrase, rather than work within the spirit of the law, which was to protect state secrets from foreign enemies. It has been used several times in the past to punish actual spies, but in recent years, it has almost exclusively been applied to whistleblowers who have given information to journalists.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: anthony lapham, cia, espionage act, leaks, whistleblowers