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John Kiriakou: Don’t Charge Trump with Espionage

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 / 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

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 nearly 50,000 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.” 

Eugene V. Debs leaving federal penitentiary in Atlanta, Jan. 1, 1921. (Library of Congress)

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
John Kiriakou

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.

22 comments

  1. Governments are corrupted by power, supported by the evil rich. Satan has muchto work with

  2. Your argument is even more true in this case, for two reasons. First, Trump did not take these documents with him; they were sent to him after he had already left. Second, the FBI already came and examined them months ago, at which time Trump was simply advised that the documents be more heavily secured, which they were. I detest Trump, but this was clearly a setup, just like Russiagate.

  3. John how can you at this point after everything you have gone through, think even for one moment that we the people have any say at all in what happens. You, again like so many before you suggest impossibilities like scraping the espionage act, as if it was just a matter of deciding that is what we want.

    Our democracy is dead and pushing up daisies. It has been dead for decades. How can it be that like only ten of us have noticed. It is dystopic in the extreme.

    1. I won’t argue that democracy is alive and well. Nor, even, that we ever had a democracy or that the political system hasn’t devolved even further from any professed ideals.

      Yet I would urge anyone who is awake to the problems to see them as challenges and opportunities – perhaps to change even the underlying paradigms. Though, as evidenced by what we see projected from our media, advertising, infotainment programming, etc., the mass consciousness may be (at this moment) dull and shallow and, well, just not very deeply awake, and though the power elites, most undemocratically keep things that way, it is the very nature of consciousness that it strives to deepen. It may take some awful things (i.e., “significant emotional events”) to stimulate that evolution, but assuming humanity avoids a sudden mass extinction of its kind, evolve we will.

      I can’t say just what steps must be taken towards that. As you suggest, the governance structure is itself so corrupted that relying on it for change is rather pointless. Perhaps a mass movement might emerge; one which is strategic, sustainable, and cognizant that its main, if not only, remnant collective power is in its ability to ‘perturb’ the economy- to make it and the governance systems reflect the values and interests of the greater public. That, in my view, is the most optimistic path forward. I have no illusions about the difficulties involved; but IMO it is the most reasonable path forward.

      In the interim, keep heart. Find the reasons for retaining those seeds of hope.

      1. I see it differently. Years of work went into successfully pitting the people against each other by class, race, and politics. Divided and conquered.

      2. CONSCIOUSNESS AND MEANING v. EITHER/OR

        You brought up the idea of consciousness. Implying issues some leftists avoid or deny since their political theories assert that spirituality is merely a system of control through memes imposed on the masses by elites. Which neglects how experience, especially of non consensus realities or of direct connection to transcendence, is so very much more than a simple assent to beliefs. It is a powerful encounter with meaning.

        The closest analogy being art and music. In scientific terms, a painting is a chunk of cloth with splotches of pigment. It is the artistic, poetic, mystical, and spiritual aspects that give it meaning. A model being the difference in how the left brain and right brain process the same info.

        In a post-Einstein and post-Heisenberg world, we understand there is no single frame of reference and must learn to live with uncertainty and ambiguity. The old binary Aristotelian either/or is not enough. Nor are true or false, good or bad, with us or against us, science or religion, particle or wave.

        What I’m getting at is a both/and. And maybe a neither/nor of possibilities beyond what humans can handle. Yet. Because even to consider some greater level of consciousness implies that we barely upright thinly furred apes may all be idiots savant having abilities we barely realize.

        The both/and also means that we contain contradictions. Very, very few of us aren’t prejudiced. Few avoid hating enemies, and almost all of us are capable of violence. Personal awakening requires looking at the worst in oneself. IMHO, an introduction to Mind or collective Consciousness or epigenetic fields usually begins with positive Light. Over time, the cosmic Dark is encountered as well. Perhaps necessary to existence the way dangerous, destructive black holes are centers of galactic formation.

        Even political or religious communes formed by dedicated people with the best of intentions fail. Ignoring evil in hopes of utopia is unrealistic. That’s why politics and negotiations are necessary.

    2. JustAMaverick: Great response. And as long as the myth of “voting” is the center if not key component to a democratic society, we’re doomed if not asleep-at-the-wheel. So, just ask yourself, will our elected officials actually respond to what We the People have voted for? HELL NO! To quote Professor Richard Wolff: “Socialism is democracy in the workplace.” If citizens have no say in the workplace, actual democracy is nothing but a pipedream.

  4. Agreed!! This law has never been anything but a tool of government oppression. No WW1 era German spies were ever charged but an American running for president for speaking words disfavored by the war machine was tells us everything

  5. I trust your view on this law, John. You have good reasons, coming & going, to make this decision. Not that our Federal Gov will ever take steps to do anything that is based solely in logic & good reasoning. They seem to be hell bent on taking out those truth tellers who want to save our nation from absolute & complete ruin. Democracy died when the KOCH brothers were able to install all the many forms of legislation “they” decided corporate owners might need in order to reign in total over all legislative function in the USA. And to top even those efforts, to install ignorant Justices in our Supreme Court, so that their seal of power was completed. We are dying from starvation of truth, yet even those heading up the DNC do not give a damn. Money is power in the USA. Nothing else matters now.
    I still say: FREE ASSANGE & SNOWDEN – all whistleblowers!

  6. 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, 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 thereby equitable partakers of the purported wealth of the too often to be true proclaimed richest country on the plant.

    1. @Em,
      Your Narcissist Pres. is an absolute magician. All his life he avoided all troubles that you or I would have been imprisoned.
      I am skeptical that any accountability will happen. Even if convicted, it is likely there will be a deal for a pardon. America would be a joke for Russia, China, others. So, a face saving deal will be made before Putin takes his Orange bud into hiding.
      Conspiracy rumors are that the inside collaborators are someone that Don owes lots of $$ for work that he refuses to pay, as usual.

  7. The flagrant abuse of the Espionage Act for the purpose of excoriating whistle-blowers and obfuscation of corrupt and criminal behavior by the U.S. government is beyond debate at this point. But given the blatant malfeasance and contempt for it’s citizenry of the U.S. government, coupled with the branding of nations at odds with American hegemony as “enemies”, it can be difficult to summon outrage even if classified information was shared with a rival country. When The United States’ own citizens are being greatly harmed by their own government who needs foreign enemies? [That said, I have no intention of aiding a hostile foreign power.]* *For NSA Utah Data Center

  8. Kiriakou’s damn near as solid a hero as Eugene Debs…maybe more so, because Debs never had to run the volume of bullshit through his “morality filter” as John ever did.

    Mr. Kiriakou took his moral stand at the fucking zenith of our nation’s ignorance and arrogance, and they should probably mint a brand new medal for that brand of courage…. Smart money’s not riding on that happening anytime soon.

  9. This pre-election hysteria should be a clue, not only to how far the Democrat Party has fallen, but American politics in whole. As the US continued to crumble, Democrats spent over 5 years obsessed with trying to “get Trump” for something, running multiple investigations, including the multi-million dollar Mueller investigation. And they came up empty-handed. It looks mighty suspicious that, just weeks before the Nov. elections in which Democrats expect notable losses, there is some sort of raid at Trump’s most well-known resident (great for the optics) discovering super secret documents just sitting there… Right. Even a low-budget late night movie can do better than that.

  10. *WE* HAVE MET THE ENEMY AND HE IS U.S.

    Because *WE* Say So is the de facto definition of how harm to national security is determined.

    Confirmed by the contrast between what has happened to the whistleblowers and the CIA propagandist…er, I mean CNN analyst and his leaky lady friend. *We*–actually THEY; the MIC econ/pol cabal and their top level bureaucratic allies–aren’t harmed by what one of their own says. But they certainly are when the ugly truth about what is done by these few in the name of the collective American “we” is revealed.

    Perhaps a jury gets to hear actual evidence of harm. That would imply there is an objective standard for national interest and therefore some idea of the common good. If none of this is explicit, then what is or isn’t “harm” gets down to Because *We* Say So.

    You don’t have to have witnessed a person walking by when footprints in the snow tell you someone was there. The visibly horrible results of foreign policies and the repression of domestic opposition reveal just whose fingerprints are all over these actions.

    Like Louis XIV’s “L’Etat c’est moi,” the Ivy Dem neolib oligarchy and the R neocon plutocracy define their own narrow interests as those of the country. For them, the American majority is unimportant, irrelevant, and a hindrance. Populism is portrayed as right wing crazies or impossible socialism. Dissent is dangerous, tending toward sedition. *WE* have met the enemy and he is U.S.

  11. I think they just want to take away the courtesy for former presidents of receiving intelligence updates from Mr T
    and distract us from the war mongering & finance – business as usual

  12. The US, two-party election system is not even a republic. The two-party dictatorship will not allow anyone who is anti-establishment to remain in office.
    Promoting FALSE HOPE that someway, somehow the people can rescue the government from the oligarchs is nothing more than a psy-op by the deep state to keep the people from becoming desperate, and perhaps dangerous.

  13. You have to kill a part of your conscience to keep ignoring the voice inside telling you this isn’t right.

    We should all wonder, to what lengths might central authority go to muddle truth, stifle dissent and wallow in victomhood?

    Thank you to the list of those (thouthout the decades) with the moral courage, in the face of much personal harm, to shine a light on unaccountable power.

  14. Yes.

    Will this ever happen as empire crashes burns and folds in on itself?
    NO. Punishment is simply there for The Oligarchy to still feel they are in
    control.

    That and to foist blame on ‘The other.’
    Being cowards they take no responsibility nor speak
    with verity.

    If you just for a minute compartmentalize all our coups you will see
    very clearly what power wants.

    More Power.
    Now of course flailing desperately to maintain it.

    Ironically and sadly even 1984’s George Orwell was a
    rat telling his friends details and tales to
    The English equivalent of the cia.

    Hypocrite as well as prescient?
    Yes. Surprising? NO.

    USrael has proven itself to be bottomless in its depravity.
    Don’t give a shit if people don’t like me for pointing
    out the obvious.

    “If Lies can start wars, then truth can stop them.”
    J. Assange.

    (Morals and empathy would probably help. )
    Caring, Loving. When narcissism is the sole
    goal , no one wins and no one gains a fucking thing.

    We exist through entitlement. We exist due to
    viewing anyone beside us as inferior. And primarily,
    we will die as a direct result of selfishness
    and arrogance.

    And that last grab for ultimate
    control. Control we can no longer maintain.
    It is in fact non-sustainable.

    ‘Control’ the Global South laughs at.
    The Palestinians have control of themselves.
    And they are one. That is what real power
    truly is.

    Our solution to total hegemony?
    Proxy wars that never end.

    The participants of which
    have been bullshitted into believing
    that we care about them in every way or shape.
    Or… form.

    Which is true. Their dead forms are cause for
    celebration.

    Power = the human spirit. A condition if you
    will of being powerful. And humble.

    Not the ‘spirit’ of religion the greatest
    fractious most divisive tool of people
    since its inception.

    And of course power over
    the silly proletariat.

    George Bush ‘W’
    prayed to gd and then
    bombed a million people
    into dust.

    Imagine as John sang
    “No Religion.”

    Imagine what could have
    been without it.

    I hope you can.

    We have only ourselves to believe in.

    Experiment?
    Indeed.

  15. Perhaps the author shouldn’t make assumptions before the intelligence assessment is completed. Oh yeah, according to him, no one in govt is honest or has the countries best interest at heart (except for the author). If you think Trump wouldn’t sell or give away state secrets, you haven’t been paying attention and shouldn’t have been in CIA in the 1st place. A malignant narcissist would tear down everything to save face or find an end to his means, period. He has no country, no god, no honor, no integrity, just whatever thoughts that go thru his head that he deems beneficial to him and only him. And when he tears it all down, he’ll blame it on someone else, just like you do…

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