July 8, 2016


Here's the other 'gross negligence' case Comey cited in Clinton email testimony (JOSH GERSTEIN, 07/07/16, Politico)

For more than two decades, FBI Special Agent James ("J.J.") Smith was a highly respected, veteran agent running counterintelligence operations in the Los Angeles area. His main focus was on China: trying to identify the Communist country's intelligence operations in the U.S. and ferret them out.

In 2003, less than three years after he retired from the FBI, Smith was arrested by his former colleagues on shocking and scandalous charges that he carried on a sexual relationship with one of his longtime sources, Katrina Leung. The FBI said in court filings that Smith carried classified documents and other sensitive records in his briefcase and sometimes left the case open and unattended while he visited her residence.

Leung copied many of the records, some of which were recovered from a safe in her home, the court records said. That was particularly worrisome because the FBI had developed Leung as a double agent known to be working with the Chinese government, but in theory working loyally for the FBI.

The story had another major salacious twist: Leung--known by the code name "Parlor Maid"--had also carried on a sexual affair with another FBI agent involved in managing her, Bill Cleveland.

Smith and Leung were arrested and later indicted separately. Smith was charged with four counts of wire fraud for submitting false reports on Leung's activities as an FBI asset and one count of grossly negligent handling of classified information. The latter charge is a component of the Espionage Act, although Smith was not charged with espionage as such.

Hillary Clinton and the Espionage Act (Steve Vladeck, 7/08/16, Slate)

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.

Posted by at July 8, 2016 8:37 AM


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