Nobody should face the charge unless they are working for a foreign power and mean harm to the United States.
March 29, 2019: Marine One lifts-off after returning President Donald J. Trump to Mar-a-Lago. (White House, Joyce N. Boghosian)
By John Kiriakou
Special to Consortium News
Former President Donald Trump shouldn’t be charged with espionage for taking classified documents with him —some of them apparently very highly classified — when he left the White House for semi-retirement at his Mar-a-Lago home.
Nobody should be charged with espionage unless they are working for a foreign power and mean harm to the United States. The Espionage Act, which was written 105 years ago to combat German saboteurs, is rarely used now to target spies and traitors. Instead, it’s used as a cudgel to silence whistleblowers, journalists, and occasionally a stupid former president.
To understand the damage that this deeply flawed law has done, and will continue to do, we have to look at its origins. The Espionage Act was written in 1917, at the height of World War I. The U.S. was panicked at the thought of German spies working undercover to steal its secrets and to disrupt its ability to produce war materiel and support its allies.
Congress drew up a law in which one provision, Section 794, made it a crime punishable by life imprisonment or death to provide “national defense information” to a foreign power. But another provision, Section 793, made it a crime punishable by up to 20 years in prison to “provide national defense information to any person not entitled to receive it.”
The problems with the law were myriad. First, nobody ever bothered to define what “national defense information” was. The law doesn’t even mention the term “classified information” because the classification system wouldn’t be invented for another 40 years.
Second, there was no “affirmative defense” written into the law. A defendant was forbidden from saying in court, “Yes, I gave national defense information to a reporter because I was revealing a crime” or “I did it in the national interest.”
And to make matters worse, the Sedition Act, which was passed a year later, amended the Espionage Act to criminalize many forms of speech, including “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the flag of the United States, or the uniform of the Army or Navy.”
Political Persecutions
Eugene V. Debs leaving federal penitentiary in Atlanta, Jan. 1, 1921. (Library of Congress)
The political persecutions began almost immediately. Eugene V. Debs, the Socialist Party nominee for president in 1904, 1908 and 1912 was sentenced to a decade in prison because he gave an interview in opposition to the draft. He ran for president in 1920 from prison and won 919,799 votes. Socialist Charles Schenck was convicted of espionage for circulating a petition in opposition to the draft. Jehovah’s Witness leader Joseph Rutherford was arrested and charged with espionage for writing in a magazine,
“Nowhere in the New Testament is patriotism encouraged. Everywhere and always murder in its every form is forbidden. And yet under the guise of patriotism civil governments of the earth demand of peace-loving men the sacrifice of themselves and their loved ones and the butchery of their fellows, and they hail it as a duty demanded by the laws of heaven.”
Even a Hollywood studio was prosecuted under the Espionage Act. In United States v. Motion Picture Film, a federal court upheld the Justice Department’s seizure of the film, called Spirit of ’76, because a scene showed British soldiers being cruel to colonists. The Justice Department had argued that such a depiction, even if true, could undermine public support for the British in the world war.
The film’s producer, Robert Goldstein, was sentenced to 10 years in prison and fined $5,000. He served three years. These are only a few of the dozens of “espionage” prosecutions from the period.
The law’s Section 793 was largely ignored from the mid-1920s to the early 1970s, when the Nixon administration charged Daniel Ellsberg with multiple counts of espionage for releasing the Pentagon Papers to the media. The case fell apart when Nixon ordered his “plumbers” to break into Ellsberg’s psychiatrist’s office, steal his files and send them to newspapers.
Section 793 then went dormant again until Barack Obama was elected president in 2008. It was Obama, with his Nixonian obsession with national security leaks, who decided to use the Espionage Act as a political weapon to silence whistleblowers. And it was Donald Trump who wholeheartedly carried on Obama’s tradition of charging whistleblowers with one of the nation’s gravest crimes.
Between 1917 and 2009, three Americans were charged with espionage under Section 793 specifically for speaking to the media.
President Barack Obama studies a document held by Director of National Intelligence James Clapper during briefing, Feb. 3, 2011. (White House/ Pete Souza)
Barack Obama charged eight people with espionage for speaking with the media in the eight short years of his presidency. They were Thomas Drake (NSA), Shamai Leibowitz (F.B.I.), Stephen Jin-Woo Kim (State Department), Chelsea Manning (Army), James Hitselberger (Navy), Edward Snowden (NSA), Jeffrey Sterling (C.I.A.) and me (C.I.A.).
Trump went on to charge Reality Winner (NSA), Terry Albury (F.B.I.), Joshua Schulte (C.I.A.), Daniel Hale (Air Force), and Henry Frese (DIA). None of the 13 people charged were ever accused of providing classified or “national defense” information to a foreign power. Nearly all had spoken to the media in an attempt to report on waste, fraud, abuse, or illegality in national security.
And in perhaps the most notorious Espionage Act case, the Justice Department has charged WikiLeaks co-founder Julian Assange with multiple counts of espionage. It was Assange and WikiLeaks, of course, who reported that NSA was spying on American citizens in violation of U.S. law and its own charter.
It was Assange and WikiLeaks who broadcast video of U.S. helicopter crews murdering Reuters photographers and innocent civilians in Iraq.
It was Assange and WikiLeaks who told Americans about Vault 7 and what the C.I.A. was doing against American citizens, again in violation of the law.
Trump had his then-C.I.A. director, Mike Pompeo, come up with a plan to kill or to kidnap Assange in the streets of London, yet another patently illegal act. And don’t forget that Assange isn’t even an American citizen.
It is past time to scrap the Espionage Act. I agree that someone with access to classified information, working on behalf of a foreign power, ought to be punished. Severely. But that’s not what this is about. This is about the government punishing people who embarrass it.
When I was at the C.I.A., I sat next to a woman at work who had an affair with a former senior C.I.A. official who had gone on to work for CNN. In the course of “pillow talk,” she revealed classified information to him, and he repeated that information on CNN. An internal investigation soon found the culprit. Was she charged with espionage? No. A letter of reprimand was placed in her personnel file, she was suspended without pay for four weeks and she was barred from being promoted for two years. That was an appropriate punishment, especially since there was no harm to the national security.
Harm to the national security isn’t even a consideration anymore. Now it’s just about punishment and about making a political point. Scrap this law. Rewrite it the way it should be rewritten. And leave whistleblowers alone.
John Kiriakou is a former CIA counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act—a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration’s torture program.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
Good comments, folks! And a fine article by national and world hero, the Honorable John Kiriakou!
So happy to see the photo of another honest and courageous national hero, Eugene V. Debs. Jailed for opposing a war we should never have been involved in to begin with. Of course, Debs was pro-union, so he was despised by the ruling-class and corporate bosses
John. I don’t think you or any one else needs to be concerned about Mr. Trump being charged under the Espionage Act. I seriously doubt that “teflon Don” will ever be charged and convicted for any criminal activity whatsoever. None. At all. Ever.
Fallacy and Fraud!
The so-called government of the United States, is not the government of, by or for, we the people.
Those who now wholly own and operate this corporate entity have been doing harm to this so-called democratic Union, for too many years now, and not one of the present or past shareholder boards of directors has ever spent a day in prison.
Narcissist Presidents of too recent memory, like you know who, serve their own careers and economic interests first, have been causing harm to the community of humans; who are presumed to be equal members of a nation state called America, and are thereby purported equitable partakers in the wealth of the too often to be true proclaimed richest country on the planet.
Bravo John! Thank you for your continuing clear headed approach to today’s issues. I always look forward to what you have to say.
If ever there was an indictment of our Supreme Court it is the legality of the Espionage Act; politicians will be politicians. The Espionage Act was upheld in the Supreme Court WW1 in Schenck but the MIC is in a perpetual state of unauthorized war, rendering that verdict meaningless to our permawar State. By refusing to grant Certiorari to the Espionage Act constitutionality in times when wars have not been declared by Congress, the Supreme Court has effectively restored the powers of Kings.
“Harm to the national security isn’t even a consideration anymore. Now it’s just about punishment and about making a political point. Scrap this law. Rewrite it the way it should be rewritten. And leave whistleblowers alone.”
I differ with John on this only to the extent that I think those who have surreptitiously seized actual power have been allowed to have gone on in their wickedness far too long and a lot more effectively from the shadows to be successfully mitigated by conventional means. It is hard wired now.
And unlimited violence is the nature of the totalitarian state to express murderously upon its citizenry. It’s all permitted and will be expressed accordingly as inevitable citizen unrest manifests both here, and in Europe first especially. Because Europe via NATO and the usual D.C. three-letter agencies is being actively deployed as the power elite’s expression of will prominently right now in the ‘sacrifices’ we will all be expected to make in the near future: in the name of state security.
Our tenets of self-governance have been perverted to such an extent—with malice aforethought—that we’re not going to “get back to where we once belonged.”
They’re not making a mere political point. This, our feckless and truly only facile ostensible leadership—by doing the bidding of their donor/owners—are asserting, have asserted, a totalitarian form of government on a shepherded unwitting population which is yet and always encouraged to believe that our governance is not abjectly and completely corrupted. They have plumbed the depths of the human psyche for decades now in the quest to make us more malleable to their ends and desires. They are so far ahead of us it is more than a tragedy, it is a farce how they have the majority of our national consciousness dangling in their manufactured winds of whim.
Individuals much smarter than most of us figured futuristically back in the 1920s and even before just which paths and destinations awaited us; perhaps inspired by the early 20th century’s most notorious manipulator, Edward Bernays. Joseph Goebbels was counted among his rapt students and practitioners, as was/is the United States government. I count Aldous Huxley as the preeminent diviner of where it would all lead, his voice being heard from the late 1920s to the 1960s. I don’t see where he has erred. At all:
“People will come to love their oppression, to adore the technologies that undermine their ability to think”
“There will be, in the next generation or so, a pharmacological method of making people love their servitude, and producing dictatorship without tears, so to speak, producing a kind of painless concentration camp for entire societies, so that people will in fact have their liberties taken away from them, but will rather enjoy it.”
“Human beings act in a great variety of irrational ways, but all of them seem to be capable, if given a fair chance, of making a reasonable choice in the light of available evidence. Democratic institutions can be made to work only if all concerned do their best to impart knowledge and to encourage rationality. But today, in the world’s most powerful democracy, the politicians and the propagandists prefer to make nonsense of democratic procedures by appealing almost exclusively to the ignorance and irrationality of the electors.”
“Liberty, as we all know, cannot flourish in a country that is permanently on a war footing, or even a near war footing. Permanent crisis justifies permanent control of everybody and everything by the agencies of central government.”
“All war propaganda consists, in the last resort, in substituting diabolical abstractions for human beings. Similarly, those who defend war have invented a pleasant sounding vocabulary of abstractions in which to describe the process of mass murder.”
These power elites themselves are so corrupted and disassociative to the status of ‘goodness’—basic and beneficial human values in their intentional corruption of we the People, the backbone of their devious plans. “To promote the General Welfare…” How far the tide has receded…
Our society, our personal associations, these words even as written in real time corrupted by constant amoral surveillance, all of it now beyond the mere act of legislation being sufficient to effect actual change. It now has its own mass and momentum, far separate from our notional Constitution and Bill of Rights. Artificial Intelligence they call it. Artifice has become. It is now truly The Age of Artifice.
We get but the illusory “Hope” part of “Hope and Change” or any sloganeering variation thereof. But insofar as the meat of the matter, essentially a 180 degree turn from where we’ve been led to this point of democracy’s implosion, they’ve shown their ultimate hand, a waltz into a quite possible if not probable nuclear Armageddon.
Just by thinking, and foisting those thoughts upon the hoi polloi, that such a confrontation is ‘winnable,’ the directors of this enterprise, this descent into tyrannical forms of madness, are not willing to be dislodged from their perch of orgasmic power and no amount of voting into a walled-off duopoly dependent upon Them for their very existence is going to be changed short of a cataclysmic undoing of their iron fist. Threaten them enough, they will kill you. How blind we remain to the numbers already disposed of in these, our own times. But, as Joseph Stalin is purported to have said: “A single death is a tragedy. A million deaths is a statistic.”
On the subject of counting, just count the number of Congress creatures even willing to stand up for Julian Assange and the principles he represents against this Deep Security state.
We have been undone. And we are done-for as a republic. I smell the coffee. Do you?
Very thoughtful comment, David Otness. Yes, sir, we’re in trouble and too many of us don’t notice.
I think the ones who (in desperation, perhaps) vote for pied piper Trump because he’s politically gifted enough to use antiwar rhetoric, recognize that there’s something terrible wrong going on.
Then there are some who may live in the west and very concerned by what you express so well and are looking to China, Russia, India and the expanding BRICS members to find ways to put their emerging powerful collective foot down on the EMPIRE as it continues to shoot itself in the foot with the backfiring of sanctions and self-bankrupting by way of unending $trillions for war.
As Larry Johnson points out in this video at 1:09:20 :
hxxps://youtu.be/AE22_EkpW98
with his amusing comment about a U.S. which used to be in the drivers seat and thinks it still is, but it’s now in the back seat in a child’s seat with a toy steering wheel
his comment can be heard at about 1:09:20 in this video, above….
And this video:
hxxps://youtu.be/gmfwRh4rJt4
which if correct would be another crack to the plans of the masters of the world who wreak havoc everywhere – if Turkeya shifts towards Russia wrt Syria and undermines perhaps puts a stop to the Hillary designed chaos there.
And finally the folly of it all is shared here:
hxxps://youtu.be/mYHAUTjEY3s
If this shifting dynamic is miraculously recognized and accepted by the WEST one can hope for a soft landing for the world…..
we live in interesting times for sure and they are sad times for the people who are suffering through it….whether they can see what’s going on or not…
Thanks!
RE: pulling the wool over the eyes of Americans that Aldous Huxley , as you point out, delved into:
Jeffrey Sachs recent article also shares his concerns on this:
“The West’s Dangerously Simple-Minded Narrative About Russia and China
The overwrought fear of China and Russia is sold to a Western public through manipulation of the facts.
JEFFREY D. SACHS
August 23, 2022
hxxps://www.commondreams.org/views/2022/08/23/wests-dangerously-simple-minded-narrative-about-russia-and-china
I have smelt that coffee for decades. Decades. At the age of 74 I have seen every incarnation of it since I was 15 years old. Your lengthy comment is only necessary for those ignorant of history. I hope that the majority of readers of Consortium News are better than that.
That’s it, in a nutshell Mr. Otness. I especially liked your reference to the Beatles song and Aldous Huxley. Stephen Hawking also warned of the perils of artificial intelligence. “The age of artifice” indeed.
Yes. The “hard-wired” remark is appropriate and reminds of the gestapo. Also, perhaps not everybody knows where the comments from Aldous Huxley come from: that is, his Brave New World Revisited (1958) as follow to Brave New World (1930). Huxley died of natural causes on the same day JFK was assassinated.
Excellent! I agree.
While I agree wholeheartedly with the sentiments expressed, reform will never come about until the perpetrators of injustice under this act become its victims.
Capitalism cannot be reformed. Rosa Luxemburg told us that the choice was reform or revolution. She was correct.
Is this a banana republic? Or is this a totalitarian fascist country?
Am I going to be charged now with some crime for expressing these thoughts? To my defense, I am just asking questions. Or is it also prohibited to ask certain questions already?
Excellent article John Kiriakou!!!
It’s a very confusing subject but your historical record of the use – actually mostly abuse against political “enemies” that sounds unconstitutional to me makes things very clear.
The ongoing political hysteria and fear mongering against truth tellers is very dangerous not only to its innocent victims but to this country and the principles that have been left behind for decades and increasing in their viciousness and abuse, IMO.
Is this because the powers that be sense their empire in decline and don’t wish to admit it to themselves but wish for us to go down in flames?
I appreciate your well meaning, well informed, calm and thoughtful, clear and dedicated to a hope for a better country. Thank you.
The Hillary/Biden/Obama class along with the rest of the crop of corrupt DEMS don’t seem to care that their vicious pursuit of enemies – along with their self serving vicious counterparts in the GOP show great disrespect for the people of this country.
Where is our decency? Where is our Joe Welch? :
hxxps://youtu.be/svUyYzzv6VI
The US empire has been in decline for quite some time, but its satraps are in total denial. As a result, they have become vicious as rabid dogs.
Amen! Thank you.
Yup. I gotta believe that we have other laws that make it illegal to give secrets to foreign governments. Did they use this law to persecute Jonathan Pollack?
And what about Robert Novak for outing CIA agent Valerie Plame?
Thank you John for making clear the exact purpose for which the Act is now, and for some time has been employed against citizens. As you correctly point out, Julian Assange is not a citizen of the US. I confess I don’t understand how the Act can be said to apply to him – unless of course a foreign government (UK) says that it does. Perhaps someone can put me straight here because there seems to be a want of jurisdiction.
I think it’s called collusion.
Great article by a true patriot in the best sense. However, charging Trump with the Espionage Act is just further chicanery by the political elite of both parties to feign interest in the cause of justice – knowing full well that no such conviction will ever happen. Just as the Democrats picked the weakest of at least ten possible reasons for impeaching Trump, knowing that impeachment was never going to happen and guilty themselves of the same political corruption he might have been charged with successfully, they knew they couldn’t impeach him on anything real without implicating themselves. The belief in Russia-gate will soon be installed as a new amendment to the Constitution. Instead of bread and circuses, it’s tinsel and outrage. Yet I agree completely that this authoritarian law should be abolished.
Excellent article! I so admire your courage as you continue to speak out. Thank you.
Someone or some people appear worried about whatever it is Trump had taken, or allegedly, taken from D.C. My guess it has something to do with the FBI’s involvement with the Russia-gate hoax and/or the real reason the US is sending billions to the Ukraine to fight this war with Russia.
John Kiriakou is correct. It appears Trump may have some documents that would embarrass the government.
I did not support Trump, nor do I view him as a statesman. Still, he was treated terribly by the press and population -worldwide-from day one of his presidency and continues today, two years after he left office. It seems to me someone has something to hide. Until we know for certain why the justice department found it necessary to break into the residence of a former US President our imaginations will run wild. This is no way to run a country.
Drumpfsky was created by Faxe News with a millions of $s worth of free political ads just prior to formally running. He was always a congenital liar & attention ho. Who has something to hide? Who took the 5th hundreds of times in a deposition to the AG of NY recently (to EVERY ? except his name)? By continuing to give him a platform, the press is bending over backwards to treat him with kid gloves.
No, Donald Trump was not created by any news organization. Though it was Les Moonves of CBS bragged how good Trump was for CBS’s profits. Donald Trump sought the limelight while he was building towers in NY and elsewhere. His personality intrigued the news-entertainment culture and he played into it.
The media ignored Bernie Sanders as he continued to attract thousands to his rallies. The media chose which candidates to highlight, regrettably the two worst candidates were chosen, H.Clinton and D. Trump.
All politicians lie. Though lies vary in consequences, some far most deadly than others. Think Bush/Cheney lies. You ask who has something to hide? Most politicians, however the corporate media protected Joe Biden’s campaign by forbidding the disclosure of Hunter Biden’s laptop until after the election. If there’s a list of lies from the last two presidents I’d guess Biden beats Trump hands down. Especially if you consider the lies he told as a senator, particularly all the lies he told running for president starting in 1988.
Pleading the 5th is a Constitutional right if the witness has reasonable fear of prosecution and yet still be innocent of any wrong doing. Once the 5th is plead, I believe the witness must plea the 5th to all subsequent questions, hence “hundreds of times.”
The FBI in cahoots with others created Russiagate. The break-in to his residence was a defensive tactic used by a corrupted organization. It is rather naive to ask who has something to hide. Have you read the 2020 report from the Senate Intelligence Committee? You should.
Please remember that the Fifth Amendment protects all of us, not just Trump. Since Trump is an American citizen, he is entitled to refuse to speak, just as we all are. Just because we can’t stand him, that is no reason to deny him Constitutional rights. If we deny them to the worst of us, they will soon be denied to the best of us.
John,
This is a brilliant essay. A much needed voice of sanity and reason when both have been missing from the public conversation and media for many years. I join you in being an ‘equal opportunity critic’ In my world, I play no favorites. Wrong doing and significant misuse of positions of power, particularly when having a deleterious affect on the common good cannot and should not be ignored or glossed over depending upon the perpetrator or party affiliation. I am enormously grateful for your continuous participation in the public discourse. And, I am grateful to Consortium News, Joe Lauria and all who contribute and make it possible for you to share your thinking and analysis with the pubic open to considering it. Invaluable!
Thank you. I agree that this is an excellent article to remind people of the reason the Espionage Act was created and how badly it was written, and how it has been turned into a rack upon which to break anyone government chooses to demonize. Even Trump. We need more clarity about events that led to the raid on his home because, much as I despise the man, there has to be transparency regarding the reason for this. As Kiriakou says, the person he worked with was reprimanded and suspended and barred from promotion. In the case of Trump, it would be appropriate to bar him from ever running for office again and make it stick.
The Clinton-Obama-Biden quest to crystalize the world against which Orwell and others warned during the first half of the 20th century in order to assure that their Deep State remains in power, for the benefit of the wealthiest and most selfishly self-centered among us, now seeks to assure its permanence in the face of right wing populist threats by any manner necessary, creating a scenario where Donald Trump is ironically raised to hero status along with Julian Assange, Edward Snowden and other populist martyrs. And just in time for this November’s elections where this administration’s ineptitude and thirst for war made it seem as though the Deep State might again be exposed for what it is. Are we really as stupid as they hope? The answer has usually been yes. Is it still?
Much like the supposedly “historic” $10,000 forgiveness of college debt, this is likely the same type of grandstanding just before an election that we have come to know in the U.S. Presidents are just front men stood up before the public while the Deep State (often ridiculed as an idea, but true in fact) remains intact. Doesn’t matter if the President is a bourgeois neoliberal or a foaming fascist, the antics of the front men are like waves on the ocean, not affecting the vasty deeps. Their followers can do a lot of damage, but in the end it is the military-industrial-spook complex that controls.
“The case fell apart when Nixon ordered his “plumbers” to break into Ellsberg’s psychiatrist’s office, steal his files and send them to newspapers. “
It was actually John Ehrlichman who ordered the break-in but it was not intended to be traceable. Presumably, it was intended that they photograph Ellsberg’s files.
However, the break-in was deliberately botched in order to damage Nixon.
On 9 May 1970, Nixon walked out of the White House and met anti-war protesters. Why not, therefore, make contact with Ellsberg? Nixon would not really have had anything to lose by doing that but he would have had to conceal what he was up to.
The whole thing stinks of scorched earth politics. It’s payback from the Dems for Trump carping on prosecuting Hillary Clinton for illegally keeping classified documents on her own computer during the presidential campaign. Obviously, either Trump or whomever he put in charge of the Justice department thought better of that once he was in office. The holier than thou Democrats, especially AG Merrick Garland may have their judgement clouded by the way the Republicans denied Mr. Garland a seat on the Supreme Court during Obama’s last year in office. Perhaps they do not see how vindictive this can make them look in the eyes of many, most notably within the loyal opposition. It also brings to mind all of the shenanigans that Joe Biden’s son Hunter was at risk of being charged with during the campaign yet was blithely protected from by a media which persistently characterised the copious evidence on his computer as rank Russian disinformation. The dirty game that politics has become in recent years certainly does not instill confidence in the voters that office holders are bringing honesty and integrity to their jobs, with competence an entirely different matter. Couple all the routine slander with the concentrated assaults on character and personal probity intended as kill shots in the recent impeachment trials of two sitting presidents and one gets the impression that the country may well be visited soon with the same sort of coups d’état that our state department and intel agencies so freely impose on both our international friends and enemies merely to micromanage policy. Far too often it all looks like nothing but dirty tricks and base intrigues more than reminiscent of Watergate.