Sign the petition to demand accountability for the selective prosecution of NSA Whistleblower Thomas Drake.
Thomas Drake, the NSA whistleblower who was just featured in a New Yorker article by Jane Mayer, is being indicted under the Espionage Act. But not just any old paragraph of the Espionage Act; he is being indicted under 18 USC 793 Subparagraph (e). This is a strange coincidence. Many people say that our new age of terror scares has brought about a new McCarthyism. 793 Subparagraph (e), ironically, was created during the McCarthy era, with the help of a new congressman named Richard Milhous Nixon.
In the 40s, there had been a number of actual, real Soviet spies. This perhaps had something to do with the fact that we were allied with the Soviets in the war against Hitler. It might also have been because the head of the OSS, Wild Bill Donovan, was a bit of a softie for anyone who could help him "kill germans". At one point he even wanted to have an 'exchange agreement' with the NKVD, where their agents could wander around our country and do work.
There were, however, also a lot of fake, false spy scares, and a lot of congressmen who used this to their advantage. By stitching together the Elizabeth Bentley case, the Goren case, the Amerasia case, the "Atomic Spies" cases, the FBI Silvermaster files, Mao's victory over Chiang Kai-shek, the Soviet's explosion of their own nuke, possible leaks about the Venona project, and the problems in Korea, and people like Roy Cohn, Richard Nixon, and Joseph McCarthy painted a picture of massive Communist infiltration into the government.
The result of all this hoo ha was the Second Red Scare (the first had been circa 1919). The congress revived the House Unamerican Activities Committee (HUAC), which, ironically, had originally been created in the 1930s to root out fascists after the 'Business Plot' against Roosevelt. There were also the McCarthy hearings in the Senate, the Hollywood blacklists, the loyalty oaths, trumped up investigations, and on and on. The nation threw out people like the great playwright Bertholt Brecht, the pioneering radio journalist William Shirer, the man who wrote the film High Noon, Carl Foreman, and on and on.
One of the most famous cases from the McCarthy era was the Alger Hiss & Whittaker Chambers case. Whittaker abandoned communism and was later asked to testify against Alger Hiss at a HUAC hearing. Chambers had a bunch of State Department documents &c stashed in a pumpkin; he claimed some of them came from Hiss. Nixon was directly involved with this Pumpkin Papers investigation.
The problem with the Chambers / Hiss case, though, was the old fashioned Espionage Act of 1917. The original authors, in their haste, had not even bothered to make it illegal to stick 'national defense information' in your pumpkin. It was only illegal if you actually gave it to somebody. They had to settle for letting Chambers walk and getting Hiss on perjury charges, claiming he had lied under oath. They would try to fix this problem in Espionage law soon enough.
In 1950, Congress created the McCarran Internal Security Act of 1950. It was based on the earlier Mundt-Nixon Bill which had failed to pass congress. The new act contained two parts; The Subersive Activities Control Act and the Emergency Detention Act. They were both massive; think Patriot Act massive. They modified huge swaths of existing law. Part of this modification was to add in one little tiny new subparagraph to Espionage law; It was Title 18, Section 793, Subparagraph (e).
By sticking phrases like 'willfully retain' and 'unauthorized posession' into the Espionage Act, under Subparagraph (e), and connecting them with twisted verbiage, they would now be able to catch any future incarnations of Whittaker Chambers or Alger Hiss. There were also a bunch of other new words stuck in here and there into the subparagraph; the exact meaning of which is still being debated today. But, essentially, they broadened the Espionage Act to apply to more people, more types of information, and more situations.
There was one snag. That snag was President Truman. He vetoed the whole Internal Security Act. Ironically he had been supportive of many Red Scare measures, like some of the loyalty programs, which had driven innocent people out of work. But in a famous speech, he layed out the reasons for his veto of the proposed new law:
It would put the Government of the United States in the thought-control business. . . It would give Government officials vast powers to harass all of our citizens in the exercise of their right of free speech. . . . we already have on the books strong laws which give us most of the protection we need from the real dangers of treason, espionage, sabotage, and actions looking to the overthrow of our Government by force and violence. Most of the provisions of this bill have no relation to these real dangers. . .
There is no more fundamental axiom of American freedom than the familiar statement: In a free country, we punish men for the crimes they commit, but never for the opinions they have. And the reason this is so fundamental to freedom is not, as many suppose, that it protects the few unorthodox from suppression by the majority. To permit freedom of expression is primarily for the benefit of the majority because it protects criticism, and criticism leads to progress. . . .
We can and we will prevent espionage, sabotage, or other actions endangering our national security. But we would betray our finest traditions if we attempted, as this bill would attempt, to curb the simple expression of opinion. This we should never do, no matter how distasteful the opinion may be to the vast majority of our people. The course proposed by this bill would delight the Communists, for it would make a mockery of the Bill of Rights and of our claims to stand for freedom in the world…
We need not fear the expression of ideas—we do need to fear their suppression. . . . We will destroy all that we seek to preserve, if we sacrifice the liberties of our citizens in a misguided attempt to achieve national security…
Congress was not moved. They overturned his veto, through an overwhelming majority of votes. The act passed. The whole thing, including little 18 USC 793 Subparagraph (e), became law.
Of course, most of the actual, real Soviet spies to be caught over the next several decades, like Ames, Hanssen, Walker, &c, were not prosecuted under this new Subparagraph (e). Instead, the old fashioned subparagraphs of the 1917 Espionage Act, like (c) and (a), continued to be used as they always had been.
Subparagraph (e) would have a different story. It would be used against some spies, often in tandem with the other subparagraphs. But when it came to prosecuting non-spies, whistleblowers, and innocents, subparagraph (e) became the favored tool of the government. One of the most famous were Russo and Ellsberg, in the Pentagon Papers case in the 1970s. Nixon, finally getting a chance to use the law he helped pass, went after them with gusto. He overreached; their trial was thrown out because of gross government misconduct, including the breaking and entering of Ellsberg's psychiatrist's office, and Watergate.
But this case was not going to die quietly. The New York Times sued back, and won many supportive opinions from the Supreme Court in favor of the First Amendemtn. Two scholars, Benno Schmidt and Harold Edgar published an extensive, scholarly review of the Espionage Act in the 1973 Columbia Law Review as a sort of response to the events of the day. In it, they specifically analyzed Subparagraph (e). They pointed out that, in fact, it had expanded the purview of the Espionage law, and that in theory it might cover people who had no mal intent towards the country, and that the vagueness of the language made it questionable from a civil liberties perspective.
The next non-spy to fall under Subparagraph (e)'s grasp was Samuel Long Morison. He had sold some photos to a magazine in 1985. President Reagan decided to crack down on leaks to the press. This was despite having a CIA director, Bill Casey, who was a scatterbrain and would often take secret documents home with him. And despite having an administration, like every other administration, that constantly leaked sensitive information to the press, in order to bolster it's viewpoint in the media. Oliver North would later imply that the place leaked "like a sieve". Reagan & staff wanted to bring the hammer down on the media, though; and so they did. Morison got convicted. He was only pardoned by Bill Clinton at the end of Clinton's term.
Strange, then, that Clinton did not pardon Wen Ho Lee, who also fell into the clutches of Subparagraph (e), in the late 1990s. The treatment of Lee will, in time, be seen as one of the most disgusting, most racist periods in our nations history. The so-called liberal press screamed headlines about "Chinese Spies". The venerable New York Times almost single handedly railroaded him; Senator Domenici was reported as saying he "doesn't deserve civil liberties". What had Lee done? He backed up his programs to tape, because LANL's computers crashed all the time. Many other scientists did the same thing. Yes, there were some other details about Lee's case, but basically, the entire case agaisnt Lee was a politically motivated scapegoating so that the executive branch could say they had 'found the Chinese spy'. Subparagraph (e) enabled this; without it, they couldn't have prosecuted him for Espionage; he never tried to 'deliver' the code to anyone, only 'retain' it.
There were other cases. The Kenneth Wayne Ford case, which is mysterious. Very few media outlets reported the details. He took boxes of documents home and a girlfriend later reported him to the police. He should be getting out of jail within the next year or so. Perhaps the media will then ask him what actually happened. Again, he 'retained' information. He never delivered it to anyone.
In 2005 came the AIPAC case, or as the media blared, the 'Israel Spy' case. The case was the first to include people who were not government employees; Rosen and Weissman. It was also the first case to pioneer the Silent Witness Rule, where evidence can be 'coded' or 'substituted' during a trial to hide it from the public. Civil Liberties folks decry this as a violation of the 5th and 6th amendments.
Why do these matter? They are all cited as precedent by the government in it's filings against Thomas Andrews Drake. And Drake, like the others, is under 18 USC 793 Subparagraph (e), the same subparagraph created in 1950 during the Red Scare, under McCarthyism. All these little cases that people thought were about Chinagate or Israel Spy rings or a guy selling photos to a magazine, were, in fact, about the erosion of civil liberties. Step by step, piece by piece, each case whittled away more and more of our rights, and built up a case law in which, now, it is OK to prosecute someone for having unclassified material in their basement, and call it Espionage, and then partially close the trial with the Silent Witness Rule, and pre-discover the Defense attorney's case strategy in the Classified Information Procedures Act hearings, and on and on and on.
The other 4 of the 5 Obama espionage prosecutions have run the gamut of Espionage law, from the almost never used 18 USC 798 (SIGINT) against Leibowitz, 793(d) against Dr. Kim, (d) and (e) against Jeffrey Sterling. Oh, and the Fourth? That's Bradley Manning. He has several counts of (e) against him. One of his (e) charges is for "delivering" the Collateral Murder video. Gun camera footage from a helicopter, similar to what was shown off by Colin Powell and Norman Schwarzkopf during Gulf War I, is now considered a state secret and will get you an Espionage charge for having it.
Obama might break 5, though. Right now in Cambridge, there is a grand jury meeting to discuss 798(g), 'Conspiracy to commit espionage'. Glenn Greenwald has said this is 'likely' related to Wikileaks. If Obama takes down the wikileaker, that would make 6 non-spy Espionage prosecutions.
I know some people say Drake's case is 'leftover from Bush'. It is true that Bush sent the FBI, guns drawn, into the houses of Drake's friends. However, a new prosecutor came on the case in 2009, after Obama's election; and this is the prosecutor who decided to use the 5 subparagraph (e) charges. And without that McCarthy era subparagraph (e), with its twisted linguistic gymnastics, Obama would never have been able to prosecute Drake. Drake would have gotten off free of an Espionage charge, like Chambers or Hiss - the main difference being that Drake was not sticking secret documents in a pumpkin, he was whistleblowing on what he believed were serious violations of the Bill of Rights perpetrated by the government, for the profit of a few 'national security industrial complex' companies.
So perhaps we are a nation of laws, and not men. But 18 USC 793 Subparagraph (e) was created by men at the height of a sort of national panic, which was later seen as a national moral failure. The law is still with us; and the case law that is based on it grows and grows a little each generation. Jane Mayer tells us exactly how far it has grown at the end of her article.
"Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies"
Disclaimer
Im not an expert, im not an expert nor trained in the law etc. Grain of salt, etc.
References
The Espionage Statutes and Publication of Defense Information, Edgar and Schmidt, Columbia Law Review, 1973, from Federation of American Scientists website
The Secret Sharer, Jane Mayer, New Yorker, May 2011
The New Yorker's Damning Dissection of "Leak" Prosecution of Thomas Drake, Jesselyn Radack, Daily Kos
Save Tom Drake, facebook page
Government Accountability Project, whistleblower.org
Indictment of Thomas Andrews Drake, US DOJ 2010, from the Federation of American Scientists' website
Truman's Veto of the McCarran Act (1950), wadsworth.com
Piercing the Reich, Joseph E. Persico, New York: Viking Press.
Burn Before Reading, Stansfield Turner, 2005, Hyperion
My Country Versus Me Wen Ho Lee, Helen Zia, 2002, Hyperion
The Pumpkin Papers: Key Evidence in the Alger Hiss Trials, University of Missouri at Kansas City, School of Law
18 USC 793, Cornell Law School
Wikipedia
&c.
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