The ugly mood of war gripped the nation on April 2, 1917 when President Woodrow Wilson sought from the U.S. Congress a declaration of war against Germany. Senator Charles Culberson of Texas and Representative Edwin Webb of North Carolina responded by introducing legislation to address potential espionage and treason. Those pieces of legislation were enacted into law by the U.S. Congress on June 15, 1917, and they became known as the Espionage Act of 1917 (“Act”).
While the Act criminalized acts of espionage and treason, not a single person was indicted, much less convicted, of either offense during World War I. The Act was instead used primarily to attack the civil liberties of people who dared to speak out against the war, mostly leftist-leaning activists and civil libertarians. The Government indicted more than 2,000 individuals under a section of the Act which made it a crime, punishable by up to 20 years in prison and a fine up to $10,000 to “make or convey false reports or false statements with intend to interfere with the operation or success of the military or naval forces of the United States” and to “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces … or … willfully obstruct the recruiting or enlistment service of the United States.” The government secured 1,005 convictions under this section, including that of presidential candidate and leader of American Socialist Party Eugene Debs.
The shocking arrest last year of a ranking American Navy officer on espionage and attempted espionage charges once again brought the issue of military “spying” into the public discourse.
What Is Espionage?
Espionage is a general category of federal crimes defined under Chapter 37 of the United States Code. Espionage crimes tend to involve the collection and/or distribution of sensitive or even classified defense information from the U.S. government to other foreign agencies or entities.
Espionage crimes include:
- Gathering, transmitting, or losing defense information
- Gathering or delivering defense information to aid foreign governments
- Harboring or concealing persons who have committed or are about to commit either of the above offenses
- Photographing and sketching defense installations
- Use of aircraft for photographing defense installations
- Publication and sale of photographs of defense installations
- Disclosure of classified information
- Gathering or delivering defense information to aid foreign governments during a time of war
- Violation of regulations of National Aeronautics and Space Administration
Contrary to popular opinion, the Huffington Post reported in 2012 that there is no on specific law that criminalizes the disclosure of classified information. Instead Congress has enacted a patchwork of laws since the Act to allow for the prosecution of individuals who sell, or even leak, classified information to person unauthorized to receive it. These laws include:
- 18 U.S.C. § 641: Criminalizes the theft or conversion of government property or records for one’s own use or use of another person. This act, in conjunction with 18 U.S.C. § 793(d), has been used to prosecute disclosure of classified information to the media.
- 18 U.S.C. § 793: Provides that a person who lawfully possesses or has access to “information respecting the national defense,” and who willfully discloses that information to someone not authorized to receive it, may be subject to imprisonment for up to ten years, a fine up of up to $25,000, or both.
- 18 U.S.C . § 795, 797: Prohibits the unauthorized creation, publication, sale, or transfer of photographs or sketches of vital defense installations or equipment, as defined by the President.
- 18 U.S.C. § 798: Prohibits the knowing and willful transmission of specified classified information to an unauthorized person. This information pertains only to information about the communications intelligence systems and activities of the United States.
- The Intelligence Identities and Protection Act of 1982: Criminalizes the disclose of the identity of covert intelligence agents, as in the Valarie Plame case.
These laws reflect Congress’s intent to punish the disclosure of classified information to anyone not authorized to receive it.
Espionage, therefore, is not a crime exclusively punishable during times of war. Espionage today is considered specific conduct like those attributed to the Navy officer or related conduct like those attributed to a NSA leaker who willfully or negligently provide classified information to any other party not authorized to receive it.
Penalties for Espionage
Depending on the facts of the case, the level of classification of the information, and a defendant’s specific alleged involvement in acts of espionage, the punishment for espionage can vary greatly. But acts of espionage are taken extremely seriously by the federal government and have some of the harshest punishments.
Potential punishments can include:
- A fine and imprisonment for up to one year,
- A fine and imprisonment for up to 10 years, or
- A fine and imprisonment for any term up to life
Note that these penalties are per charge. So if you are facing multiple charges of espionage, you could be looking at a lengthy prison sentence.
Also, when it comes to espionage, the statute of limitations can extend for at least 10 years after the alleged criminal acts took place. While most federal crimes have a five-year statute of limitations, espionage is especially looked down upon, and prosecutors want to make sure alleged espionage offenders are held accountable for their crimes.
New Espionage Rules
Last year, the Justice Department dropped all the charges against Xiaoxing Xi, the head of the physics department at Temple University. He was accused of sharing sensitive American technology with China. The charges in other high-profile cases, which also singled out Chinese-American scientists as spies, were dropped as well.
But while the scientists weren’t charged with espionage crimes, they found themselves facing other crimes such as wire fraud. Because of this, national security prosecutors weren’t involved in the cases.
This is now going to change
Any case that affects national security will now be coordinated and overseen in Washington in order to “ensure prompt, consistent and effective responses” to national security cases.
Perhaps this effort will help ensure that innocent people aren’t mistakenly accused or charged with espionage. But that cannot be assumed. If you find yourself facing espionage charges – whether you believe yourself to be completely innocent or not – the best way to protect your future is to contact an experienced federal criminal lawyer who will understand your charges and know how to defend you.