The Espionage Act and the Rosenbergs is the compressed legislative history John Kiriakou gives when explaining why leak investigations produce the results they do. Leak investigations, he notes, are conducted under the auspices of the Espionage Act.[1]
The history
The statute was written in 1917 to combat German saboteurs during the First World War. It has never been meaningfully updated. It was slightly amended in 1950, after Julius and Ethel Rosenberg were executed for spying for the Soviet Union — and Ethel Rosenberg, Kiriakou adds, as it turns out was innocent.[1]
The gap in the text
The defect Kiriakou treats as decisive is one of vocabulary. The Espionage Act does not even mention the words classified information, because the classification system was not invented until the 1950s. It says only national defense information — and then never explains what national defense information actually is.[1]
Into that gap, in his account, stepped his own trial judge. He describes Leonie Brinkema — a hanging judge, in his phrase, appointed by Bill Clinton — as having defined espionage from the bench as providing national defense information to any person not entitled to receive it, full stop, and says his own case set the legal precedent for espionage cases that followed.[2]
He then applies the definition where it leads. Lindsey Graham, on the newly released footage, was discussing classified defence strategy on the telephone with unclearanced documentary filmmakers in the room. By the standard set in Kiriakou’s own prosecution, “Lindsey Graham committed espionage on camera.”[3]