Tuesday’s announcement by FBI Director Jim Comey that the Bureau is not recommending charges against Hillary Clinton for her improper use of a personal email server to conduct State Department business is, from a legal perspective, completely unsurprising. Despite the legion of Hillary critics qua armchair prosecutors who will say otherwise, federal law doesn’t prohibit the discussion of classified information over unsecured networks.
In a provocative piece for the Intercept, Glenn Greenwald argues that the problem with Comey’s decision has less to do with the merits of this particular case than the double standard it reveals. That double standard, Greenwald writes, is best illustrated by the Obama administration’s aggressive pursuit of criminal charges against Thomas Drake, Chelsea Manning, and a number of other government employees for what Greenwald sees as an analogous mishandling of classified national security information. In his telling, “Had someone who was obscure and unimportant and powerless done what Hillary Clinton did … they would have been criminally charged long ago, with little fuss or objection.”
The problem with Greenwald’s rhetoric is the same problem that has long befuddled prosecutors (and defense attorneys): the anachronistic, labyrinthine, constitutionally problematic, and confusingly verbose Espionage Act of 1917. The Espionage Act, which remains the principal statutory constraint on the mishandling of national security secrets, has been used to prosecute not only spies but also national security leakers and whistleblowers. To understand how it’s possible that Clinton didn’t break the law while those like Gen. David Petraeus (who shared sensitive national security secrets with his mistress/biographer Paula Broadwell), NSA whistleblower Thomas Drake (who revealed details of NSA wrongdoing to a reporter), or Army Pvt. Chelsea Manning (who disclosed thousands of classified documents to WikiLeaks) did, one has to understand the text, context, and controversy surrounding this 99-year-old statute.
The Espionage Act was written on the eve of the United States’ entry into World War I largely as a compromise between Great Britain’s comprehensive ban on obtaining and disseminating national security secrets (the 1911 Official Secrets Act), and the United States’ somewhat more tolerant views toward speech. Critically, for present purposes, the Espionage Act was written before three major developments: the rise, during and after World War II, of the modern regime for classification of national security information (the statute instead refers amorphously to “information relating to the national defense”); the Supreme Court’s sweeping invigoration of the First Amendment’s free speech protection, jurisprudence in significant tension with at least some of the Espionage Act’s prohibitions on communication and publication; and technological advances that have rendered most of the statute’s technical distinctions (such as between a “code book” and a “signal book”) superfluous.
Just as importantly, Congress’s goal in the Espionage Act was to prohibit classical espionage, which Black’s Law Dictionary defines as “[t]he practice of using spies to collect information about what another government or company is doing or plans to do.” This piece of legislation was never intended to sweep as broadly as its text suggests it could—all the more so as the universe of “information relating to the national defense” has grown geometrically.
Notwithstanding these shortcomings, Congress has only amended the Espionage Act in detail on a handful of occasions and not significantly since 1950. All the while, critics have emerged from all corners—the academy, the courts, and within the government—urging Congress to clarify the myriad questions raised by the statute’s vague and overlapping terms, or to simply scrap it and start over. As the CIA’s general counsel told Congress in 1979, the uncertainty surrounding the Espionage Act presented “the worst of both worlds”:
On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.
In other words, the Espionage Act is at once too broad and not broad enough—and gives the government too much and too little discretion in cases in which individuals mishandle national security secrets, maliciously or otherwise.
To underscore this point, the provision that the government has used to go after those who shared classified information with individuals not entitled to receive it (including Petraeus, Drake, and Manning), codified at 18 U.S.C. § 793(d), makes it a crime if:
Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it …
This provision is stunningly broad, and it’s easy to see how, at least as a matter of statutory interpretation, it covers leaking—when government employees (“lawfully having possession” of classified information) share that information with “any person not entitled to receive it.” But note how this doesn’t easily apply to Clinton’s case, as her communications, however unsecured, were generally with staffers who were “entitled to receive” classified information.
Instead, the provision folks have pointed to in her case is the even more strangely worded § 793(f), which makes it a crime for:
Whoever, being entrusted with or having lawful possession or control of [any of the items mentioned in § 793(d)], (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed … fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer …
Obviously, it’s easy to equate Clinton’s “extreme carelessness” with the statute’s “gross negligence.” But look closer: Did Clinton’s carelessness, however extreme, “[permit] … [classified information] to be removed from its proper place of custody or delivered to anyone in violation of [her] trust”? What does that even mean in the context of intangible information discussed over email? The short answer is nobody knows: This provision has virtually never been used at least partly because no one is really sure what it prohibits. It certainly appears to be focused on government employees who dispossess the government of classified material (like a courier who leaves a satchel full of secret documents in a public place). But how much further does it go?
There’s an easy answer here, and it’s to not use Clinton as a test case for an unprecedented prosecution pursuant to an underutilized criminal provision, even if some of us think what she did was a greater sin than the conduct of some who have been charged under the statute. The better way forward is for Congress to do something it’s refused to do for more than 60 years: carefully and comprehensively modernize the Espionage Act, and clarify exactly when it is, and is not, a crime to mishandle classified national security secrets.