It seems like a straightforward and obvious proposition: If the government charges someone with "espionage" or "aiding" the enemy," it must prove that the person actually intended to aid the enemy or benefit a foreign nation.
But this has actually been a hotly-debated issue in all of the Espionage Act prosecutions of whistleblowers.
As Judge T.S. Ellis III explained publicly for the first time last year, he grafted an intent requirement onto the notoriously vague and ambiguous World War I-era Espionage Act in order to keep it constitutional.
Yesterday, the military judge for WikiLeaks suspect Bradley Manning seemed to inch closer back to an Ellis-type standard, which was found to be inapplicable in the case of my client, CIA whistleblower John Kiriakou. There are no links in this diary because there are no transcripts publicly available--a different problem set in stark relief yesterday when it emerged that there are 30,000 pages of motions, none of which can be viewed.
The Espionage Act is a vague, ambiguous, outdated law, passed long before the label "classified" entered the lexicon. It has, however, been resurrected by the Obama administration to target individuals, by and large whistleblowers, accused of mishandling (usually through "leaking") supposedly classified information--an idea espoused, curiously, by a neoconservative.
Before President Obama, the Espionage Act had only been used three times to target "leaking," most famously in the case against Pentagon Papers whistleblower Daniel Ellsberg (dismissed due to government misconduct.) Obama resurrected the Espionage Act, and has now brought seven cases under this law against people who are not spies. That is why the "intent requirement" is so important.
In the last of the three pre-Obama cases, the "AIPAC espionage scandal," the government prosecuted one government employee and two lobbyists for allegedly disclosing national defense information to persons not entitled to have it. At the time, it was one of the only Espionage Act cases of its kind, targeted not at traditional espionage but at the common practice of "leaking" in Washington, D.C. The cases against two of the defendants were also unusual because the Espionage Act had never been used against non-government individuals, in this case, lobbyists.
In an August 2006 ruling, AIPAC judge T.S. Ellis III grafted an intent requirement onto the Espionage Act in order to make the law constitutional:
This set a high bar for prosecutors, as it should have, because after all, charging someone with being an enemy of the state is one of the most serious allegations that can be leveled against an American.prosecutors had to show that the accused knowingly sought both to harm the United States and benefit a foreign nation.
Flash forward to the Espionage Act case against my client, CIA whistleblower John Kiriakou, for disclosing the identity of two CIA officers involved in the torture program. In his case, Judge Brinkema issued a fatal ruling on the critical issue of “intent to harm"--namely that prosecutors need not prove that Kiriakou intended to harm the United States or benefit a foreign nation. Her reasoning was due to the fact that Kiriakou learned the information he disclosed when he was a government employee, not in the private sector.
That's what makes yesterday so extraordinary. In the pretrial proceedings for the court martial of alleged WikiLeaks source Army Pfc. Bradley Manning, the judge (Army Col. Denise Lind) ruled that prosecutors will have to prove that Manning knew he was indirectly providing information to the enemy (in this case, Al Qaeda and bin Laden) when he disclosed information to WikiLeaks. This is different than the heightened proof requirement in which the government must show that he intended to harm the United States and benefit a foreign nation. But at least it's a step closer to the spirit of what Judge Ellis required to prove espionage--as it should be when the government makes incendiary allegations of "aiding the enemy," and being an "enemy of the state" against an American.