Espionage

Chelsea Manning (born Bradley Manning) was a private in the United States Army with access to classified and otherwise sensitive government documents. They included diplomatic correspondences, files from the U.S. base at Guantanamo Bay, and various military reports. There were more than 700,000 files in all and they revealed higher than reported civilian deaths and other unsettling details.

Manning said she found much of the information in these documents "profoundly troubling" so, believing she was acting as a whistleblower, she leaked the files through the WikiLeaks platform in 2010. From there, much of this information was widely reported by the press. Ultimately, Manning was convicted on 21 federal charges related to the massive leak, including six counts of violating the federal Espionage Act (found in chapter 37 of the U.S. Code).

The federal crime of espionage is generally intended to punish those who share sensitive information that would be harmful to U.S. interests, but violations of the law can take many forms.

A Brief History of the Espionage Act

In 1917, soon after the United States formally entered World War I, Congress passed the Espionage Act. This law prohibited the sharing of information intended to disrupt U.S. military interests or aid its enemies, punishable by 20 years in prison and a $20,000 fine. The Sedition Act was passed the following year, reinforcing the Espionage Act by prohibiting the issuance of false statements intended to disrupt the war effort, in addition to broad provisions that were eventually overturned (such as the banning of "disloyal, profane, scurrilous, or abusive language" about the U.S.).

Congress repealed the Sedition Act in 1921 due to its heavy-handed suppression of free speech. But while there have been many First Amendment challenges to the Espionage Act since its passage, it has remained largely intact. In Schenck v. U.S. (1919), for example, the U.S. Supreme Court unanimously held that the distribution of flyers urging draft-age men to resist military induction was not protected by the First Amendment. While it may not seem like espionage in the classic sense, the petitioner's conviction was upheld as a violation of the Espionage Act.

The Elements of an Espionage Offense

As the Manning case illustrates, even those who leak or share sensitive government information without the intention of harming the United States still may be found guilty of espionage. Although Manning insists her intention was to expose sensitive government information as a whistleblower, claiming it weighed heavily on her conscience, U.S. prosecutors were not required to prove her intent to harm the United States. Instead, the government only had to show that Manning had (or should have had) reason to believe the information she shared could have harmed U.S. interests.

Generally, an espionage conviction requires U.S. prosecutors to prove the following elements:

1. Information transmitted is classified government information or relates to national defense ; and
2. The accused acted with the intent or reason to believe the information will harm the United States or help a foreign nation (not necessarily an "enemy" of the United States); and
3. There was a willful communication, transfer, or receipt of the information; or
4. There was an overt act in furtherance of a conspiracy to commit espionage.

Furthermore, it is not necessary for the act in question to actually cause any harm to the United States (or help any foreign nations), nor does the government have to prove that the disclosed information actually was closely held and a threat to national security. So if the accused were to leak or share information that is actually incorrect or otherwise not a threat to national security, they still could be convicted if all other elements are proven.

What it Means to Commit Espionage

The U.S. Code specifies the following acts as violations of the Espionage Act:

• To enter or obtain information about any place connected with national defense for the purpose of obtaining information respecting national defense with intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign nation;
• For one who has lawful possession of certain documents, photographs, models, and similar material to transmit such material to one not authorized to receive it;
• To make or copy, or attempt to make or copy, any sketch, photograph, plan, and the like of anything connected with national defense for such purpose; or
• To receive or agree or attempt to receive from any person such materials when the recipient has reason to believe that they were taken in violation of the Espionage Act.

Additionally, the law also prohibits several activities that are related, even though the commission of the following acts doesn't necessarily indicate intent to endanger the United States or help its enemies:

• Harboring or concealing any individual, whether domestic or foreign in origin, whom the concealing party has reason to believe has committed or is about to commit an offense under federal espionage laws.
• Photographing or representing defense installations without prior permission of and censorship by the commanding officer;
• The use of aircraft to accomplish the same proscribed purpose;
• The publication and sale of photographs or representations of defense installations without prior permission of and censorship by the commanding officer;
• The knowing and willful disclosure of classified information to an unauthorized person, or its use in any manner prejudicial to the United States or beneficial to any foreign government to the detriment of the United States; or
• The willful violation, attempted violation, or conspiracy to violate regulations of the National Aeronautics and Space Administration pertaining to the security of its facilities or equipment.

Sentencing and Penalties for Espionage

Sentences and other penalties for espionage vary according to the facts of the case, but typically include long prison sentences, often for life (as do other crimes against the government). Members of the military who are convicted of the crime may receive the death penalty "or such other punishment as a court-martial may direct," according the the Uniform Code of Military Justice. While most federal crimes have a five-year statute of limitations, acts of espionage generally carry a 10-year statute of limitations.

Don't Go it Alone: Get Professional Legal Help With Your Criminal Case

If you've been charged with espionage by the U.S. government, chances are you probably already have legal representation. These and other federal charges of crimes against the government are taken very seriously and can result in lengthy prison sentences. If you have questions about a federal crime, it's critical to seek the advice of an experienced attorney. Even if you're just looking for a second opinion, a qualified criminal defense attorney in your area can help.