Robbins: The Espionage Act makes a comeback
Let’s first define the term. What does “espionage” mean?
Although it may seem of another era — the 1951 case of the Rosenbergs — or the plot of a John LaCarré thriller, what “espionage” may be defined as is the practice of spying or of using spies, typically by governments to obtain political and military information.
And even though it seems to belong more to the Cold War era, espionage, ever since homo sapiens banded into tribes, was and is alive.
Look no further than the recent case of Jack Teixeira who, from the photos splashed across the media, looks more like a Boy Scout — or perhaps a Cub Scout — than a spy, who was recently cuffed and perp-walked to a Federal Courthouse in Massachusetts and smacked with two counts of criminal misconduct: unauthorized retention and transmission of national defense information and the unauthorized removal and retention of classified documents or material. Umm … spying.
What this all arises from is — fittingly perhaps for a 21-year-old who looks at least like his best self could be found behind the joystick of a gaming setup — when a small number of classified documents surfaced on Twitter and Telegram. The documents included sensitive details about the war in Ukraine as well as eavesdropping from intelligence agencies on world leaders. Oops.
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At least according to one source, what this was all about instead of some sophisticated Kim Philby sleight of hand, was nothing more than some simple — and perhaps juvenile — showing off, more of a boasty show-and-tell, instead of intentionally putting the intelligence community and perhaps lives, at risk.
No matter.
After a week or so of government embarrassment, apologies, and backpedaling, the feds who it appears took this a bit more seriously than Teixeira did, swept him up. And now? Well let’s just say, the “I’m a Big-Dealism” he was alleged to have boasted online has rather more serious consequences than he might have imagined.
I am reminded of the 1983 Matthew Broderick movie, “War Games,” which went something like this: A young man (David Lightman, played by Broderick) finds a back door into a military central computer in which reality is confused with game-playing, and nearly starts World War III. What started out as just a bit of fun, almost blew up — literally — into ICBMS and other merchants of nuclear destruction being launched.
My bad.
Anyway, back to Teixeira and what he now faces.
What is the Espionage Act?
Well, it’s an oldy-moldy.
More formally, the Espionage Act of 1917 is a federal law enacted shortly after the United States entered World War I. It has been amended many times over the ensuing years.
What it was intended to prohibit was interference with military operations or recruitment, to prevent insubordination in the military, and to prevent the support of United States enemies during wartime. In 1919, the Supreme Court of the United States unanimously ruled through the case of Schenck v. United States that the act did not violate the freedom of speech of those convicted under its provisions. The constitutionality of the law, its relationship to free speech, and the meaning of its language have been contested in court ever since.
Among the cast of historical characters who have been charged with offenses under the Espionage Act are Austrian-American socialist congressman and newspaper editor Victor L. Berger, labor leader and five-time Socialist Party of America candidate, Eugene V. Debs, anarchists Emma Goldman and Alexander Berkman, former Watch Tower Bible & Tract Society president Joseph Franklin Rutherford, communists Julius and Ethel Rosenberg, Pentagon Papers whistleblower Daniel Ellsberg, Cablegate whistleblower Chelsea Manning, WikiLeak founder Julian Assange, Defense Intelligence Agency employee Henry Kyle Frese, and National Security Agency contractor and whistleblower Edwards Snowden.
Although the most controversial sections of the act, a set of amendments commonly called the Sedition Act of 1918, were repealed on December 13, 1920, the original Espionage Act remains intact.
In a nutshell, what the Espionage Act does is make it a federal crime to convey information with the intent to interfere with the operation or success of the armed forces of the United States or to promote its enemies’ success. Depending upon the particular circumstances and precisely with what one is charged, it is punishable by — gulp! — up to death.
That appears, though, not to be what Teixeira faces.
While the first charge of unauthorized retention and transmission of national defense information carries a 10-year maximum sentence — potentially for each document involved — it seems more likely that when the dust settles, what he will be looking at (presumably from the inside of a federal prison cell) is perhaps 10 years or less.
Unless when, as all the facts come out, the intent turns out to have been more nefarious than first reported.
The ease and dangers of the Internet, my friends, writ large.
It is a new and dangerous world. In ways the draftsman of the Espionage Act could never, more than a century ago, have imagined.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.
