ESPIONAGE

ESPIONAGE. Early modern Europeans believed spying to be a necessary complement to both warfare and effective government. At home governments were continually on the lookout for dangerous opinions and plotting by their subjects. In dealing with foreign powers, they needed information on opponents' plans and resources: the sizes and movements of their armies, the state of their fortifications, the funds they had available. When campaigning in unfamiliar territory, generals needed informants who could describe local geography and alert them to its dangers and possibilities. All governments sought to provoke dissension among their enemies, encouraging rebellions and suborning rival commanders whenever possible, and as wars wound down, each combatant needed to know as much as possible about what the others would accept in an eventual peace treaty. After about 1650, as governments became more alert to the economic components of power, they also sought a better understanding of the economic conditions of their rivals.

MOTIVES AND PATTERNS OF ACTION

It has not been easy for historians to sort out the complex patterns of espionage that responded to these needs. Documentation concerning spying is inevitably difficult to interpret, and the best studies of early modern espionage have been close examinations of specific cases rather than general histories. Nonetheless, these case studies have established some elements of a general history of early modern espionage. They have shown, first, the remarkable range of opportunities that governments had for recruiting foreign informants at all levels of society. Before about 1650, ideas of patriotism and national loyalty remained weak, and many aristocrats held on to medieval ideas of their political autonomy; when aristocrats believed the state had mistreated them, it was often possible for a foreign government to secure their services. In 1587–1588 the English ambassador to France (a high aristocrat and relative of Queen Elizabeth I [ruled 1558–1603]) used his position to pass English secrets to Spain and send home misleading information about Spanish intentions—this as Spain was preparing to invade England. The ambassador was moved partly by greed and partly by the belief that he had been slighted in his pursuit of influence at court. Fifty years later the Spanish succeeded in securing the services of Henri Coeffier-Ruzé d'Effiat, marquis de Cinq-Mars (1620–1642), a favorite courtier (and possibly a lover) of the French king Louis XIII (ruled 1610–1643). Cinq-Mars was moved principally by ambition for a larger political role, which he found blocked by Cardinal Richelieu's (1585–1642) domination of French politics. Even when not moved by greed or ambition, aristocrats were logical targets for espionage efforts. Many had familial connections in other countries, creating divided loyalties and the frequent exchange of information, and it proved easy for well-dressed adventurers to make friendships in the highest social circles and to acquire political secrets in the process.

Farther down the social scale, there were other opportunities for recruiting spies. Political and military leaders were always surrounded by crowds of servants, secretaries, and dependents, many of them poorly paid yet with constant access to important documents. Presumably it was some such source that made possible the immediate diffusion of detailed plans for the Spanish Armada as it prepared to invade Britain. The Spanish government understood the value of these plans and went to great lengths to keep them secret. Yet in 1586 one set of plans reached London within weeks of being drafted, and in 1588, as the armada was about to sail, illicit copies of its final arrangements reached pro-Spanish governments in Florence, Venice, and Rome. Merchants were another crucial source of information. Even the most savage early modern warfare rarely interrupted commercial relations between the combatants, allowing merchants to report regularly on ship movements, public opinion, and a variety of other topics of interest to rival governments. Indeed such reporting scarcely differed from the news reports that merchants drew up as part of their normal business practices. Among the peasantry, especially in border areas long used to smuggling, military commanders easily recruited guides to lead their troops through unfamiliar terrain. At these levels valuable information might cost governments very little money. Whereas it might cost huge sums to bribe important aristocrats, secretaries, merchants, and peasants were ready to supply information for the equivalent of a few days' wages.

GOVERNMENT ORGANIZATION

Because information was both so necessary and so readily available, spying remained a private enterprise through the eighteenth century; lords, generals, and politicians all paid for spies who reported directly to them. But over the period espionage services tended to become more centralized in a few government offices, where greater control could be exercised over their activities and greater professionalism could be enforced. In England, Elizabeth I's secretary of state Sir Francis Walsingham (c. 1532–1590) established a full-scale espionage service to deal with the Spanish threat. He had agents working throughout Europe and specialized messengers to collect their information. In Louis XIV's (ruled 1643–1715) France also, it came to be understood that espionage services reported to the secretary of state for foreign affairs. Techniques also were marked by this trend toward professionalization. Fourteenth-century governments already used cyphers and codes to keep their messages secret, and in 1466 the Florentine polymath Leon Battista Alberti (1404–1472) invented a cypher disk system that remained the basis for cryptography through the nineteenth century. The first printed book devoted to coded messages appeared in 1518, and later sixteenth-century publications spread advanced versions of these techniques throughout Europe. In turn governments devoted more resources to decoding one another's messages. In the seventeenth and eighteenth centuries they systematically opened diplomatic mail, copied it, and set trained specialists to decoding the contents. During the short span of the Seven Years' War (1756–1763), Britain accumulated at least twenty-seven large volumes of messages intercepted from other powers.

In establishing their networks, spymasters were aided by the growing assumption that governments should maintain representatives in one another's capitals. Permanent embassies were first employed by the Italian states of the fifteenth century; after 1500 the practice was taken up in northern Europe in response to the intensification of international rivalries during these years. Each country's embassy formed a pole around which spies clustered. Ambassadors of course were formally instructed to learn as much as possible about the country they resided in and were ready to bribe locals for that purpose. But host countries also acquired information from embassy staffs. In late-sixteenth-century London the wandering Italian philosopher and heretic Giordano Bruno (1548–1600) ingratiated himself with the Spanish ambassador, even taking up lodging in the ambassador's residence. He used this intimacy to uncover networks of Catholic missionaries in Britain, whom he promptly named to the English authorities.

Bruno's example illustrates the complex motives that might underlie early modern espionage. Most spies acted from self-interest, but Bruno and many others saw themselves as combatants in the great religious struggles that followed the Protestant Reformation. In Bruno's case this meant primarily hatred of the Catholic Church, which had persecuted him for heresy and would eventually have him burned at the stake in 1600, and a commitment to thwarting Catholic regimes wherever possible. After 1685, when Louis XIV expelled about 300,000 Protestants from his domains, France replaced Spain as the most visible threat to Protestantism's existence. In the face of these attempts at Catholic hegemony, religious exiles accepted the risks that spying entailed because of their sense that they were participants in a great ideological struggle against evil opponents. From his Dutch exile, the Calvinist theology professor Pierre Jurieu (1637–1713) organized a network of spies to observe French ports and sought to encourage Protestant rebellion within France itself. (In turn the French government succeeded in placing an informer within this group and learned about most of its doings.) Jewish exiles, forced to leave Spain in 1492 and Portugal in 1580, were another group of potential informants, especially useful because many of them had contacts across Europe.

Because so much early modern European warfare concerned religion and because fomenting rebellion abroad was a normal tool of foreign policy, governments did not distinguish clearly between internal and external espionage. All maintained significant numbers of police spies to report on the opinions and doings of their own populations. The police spies of eighteenth-century Paris accumulated an enormous documentation on the "bad opinions" they overheard in taverns and other public spaces; such reports of disaffection commonly led to arrests and lengthy imprisonments. In Spain and Italy governmental policing of this kind was reinforced by the inquisitorial activities of the Catholic Church. In the late sixteenth century the Spanish Inquisition maintained a staff of about twenty thousand salaried "familiars" charged with collecting information on their neighbors' opinions and practices.

How much did all this activity matter for the course of European international politics? For individuals the consequences of espionage might be dire. Walsingham's spies entrapped numerous Catholic plotters, many of whom were executed after being tortured to name accomplices. Walsingham's ability to intercept and decipher their correspondence with Mary Stuart (Mary, Queen of Scots; ruled 1542–1587) ensured her execution and thus had implications for British high politics. In the late seventeenth century, however, there developed something of an espionage stalemate among the European states. All governments had specialists proficient in code breaking and information gathering, and none gained much tactical advantage from them. Even earlier, their espionage successes had confronted states with another paradox: they now often found themselves burdened with too much information without the capacity to organize it and act on it effectively.

See also Diplomacy ; Inquisition ; Military ; State and Bureaucracy .

BIBLIOGRAPHY

Bély, Lucien. Espions et ambassadeurs au temps de Louis XIV. Paris, 1990.

Bossy, John. Giordano Bruno and the Embassy Affair. New Haven and London, 1991.

Haynes, Alan. Invisible Power: The Elizabethan Secret Services, 1570–1603. Wolfeboro Falls, N.H., 1992.

Kahn, David. The Codebreakers: The Story of Secret Writing. New York, 1967.

Parker, Geoffrey. The Grand Strategy of Philip II. New Haven and London, 1998.

Read, Conyers. Mr. Secretary Walsingham and the Policy of Queen Elizabeth. Cambridge, Mass., 1925.

Thompson, J. W., and S. K. Padover. Secret Diplomacy: A Record of Espionage and Double-Dealing, 1500–1815. London, 1937.

Jonathan Dewald

ESPIONAGE

The act of securing information of a military or political nature that a competing nation holds secret. It can involve the analysis of diplomatic reports, publications, statistics, and broadcasts, as well as spying, a clandestine activity carried out by an individual or individuals working under secret identity to gather classified information on behalf of another entity or nation. In the United States, the organization that heads most activities dedicated to espionage is thecentral intelligence agency(CIA).

Espionage, commonly known as spying, is the practice of secretly gathering information about a foreign government or a competing industry, with the purpose of placing one's own government or corporation at some strategic or financial advantage. Federal law prohibits espionage when it jeopardizes the national defense or benefits a foreign nation (18 U.S.C.A. § 793). Criminal espionage involves betraying U.S. government secrets to other nations.

Despite its illegal status, espionage is commonplace. Through much of the twentieth century, international agreements implicitly accepted espionage as a natural political activity. This gathering of intelligence benefited competing nations that wished to stay one step ahead of each other. The general public never hears of espionage activities that are carried out correctly. However, espionage blunders can receive national attention, jeopardizing the security of the nation and the lives of individuals.

Espionage is unlikely to disappear. Since the late nineteenth century, nations have allowed each other to station so-called military attachés in their overseas embassies. These "attachés" collect intelligence secrets about the armed forces of their host country. Attachés have worked toward the subversion of governments, the destabilization of economies, and the assassination of declared enemies. Many of these activities remain secret in order to protect national interests and reputations.

The centerpiece of U.S. espionage is the CIA, created by the National Security Act of 1947 (50 U.S.C.A. § 402 et seq.) to conduct covert activity. The CIA protects national security interests by spying on foreign governments. The CIA also attempts to recruit foreign agents to work on behalf of U.S. interests. Other nations do the same, seeking to recruit CIA agents or others who will betray sensitive information. Sometimes a foreign power is successful in procuring U.S. government secrets.

One of the most damaging instances of criminal espionage in U.S. history was uncovered in the late 1980s with the exposure of the Walker spy ring, which operated from 1967 to 1985. John A. Walker Jr. and his son, Michael L. Walker, brother, Arthur J. Walker, and friend, Jerry A. Whitworth, supplied the Soviets with confidential U.S. data including codes from the U.S. Navy that allowed the Soviets to decipher over a million Navy messages. The Walker ring also sold the Soviets classified material concerning Yuri Andropov, secretary general of the Communist party until 1984; the Soviet shooting of a Korean Airlines jet in 1983; and U.S. offensives during the vietnam war.

John Walker pleaded guilty to three counts of espionage. He claimed that he had become an undercover informant for the thrill of it, rather than for the money. He was sentenced to a life term in federal prison, with eligibility for parole in ten years. Michael Walker pleaded guilty to aiding in the supply of classified documents to the Soviets. He was able to reach a plea bargain under which he was sentenced to twenty-five years in prison. Arthur Walker was convicted of espionage in Norfolk, Virginia. His conviction was affirmed in United States v. Walker, 796 F.2d 43 (4th Cir. 1986). Like John Walker, he was sentenced to a life term in federal prison. Jerry Whitworth received a sentence of 365 years for stealing and selling Navy coding secrets (upheld in United States v. Whitworth, 856 F.2d 1268 [9th Cir. 1988]).

The ring's ample opportunity to exploit the lax security of the Navy left a legacy of damage. The armed forces frantically scrapped and rebuilt their entire communications system, at a cost to taxpayers of nearly $1 billion. The U.S.department of defense (DOD) had to withdraw security clearances from approximately 2 million military and civilian personnel worldwide. The DOD also reduced the number of classified documents in order to limit the number of remaining security clearances.

These reforms only addressed the tip of larger, underlying problems. The exploits of Aldrich Hazen Ames brought security problems within the CIA to the fore. As a double agent, Ames sold secrets to Moscow from 1985 to the end of the cold war and beyond. As a CIA agent and later a CIA official, Ames was responsible for, among other things, recruiting Soviet officials to do undercover work for the United States. His position put him in contact with Soviet officials at their embassy in Washington, D.C. While in the embassy, he discussed secret matters related to U.S. intelligence. The CIA's lack of security measures, which usually consisted of no more than the collection of questionable lie detector data, gave Ames the opportunity to illegally acquire a fortune.

In 1986, the CIA suspected the presence of a mole (a double agent with the objective of rising to a key position) in the system. Investigators could not be certain of the mole's identity but determined that something in their operations had gone awry. Two officers at the Soviet Embassy who had been recruited as double agents by the federal bureau of investigation (FBI) had been recalled to Moscow, arrested, tried, and executed. Years later, a major blunder on Ames's part led the CIA to suspect him of leaking information that may have contributed to the death of the agents. Ames had told his superiors in October 1992 that he was going to visit his mother-in-law in Colombia. He actually went to Venezuela, where he met a Soviet contact. His travels were under surveillance, and the CIA took note of the discrepancy.

By May 1993, Ames had become the focus of a criminal investigation dubbed Nightmover. Investigators found that Ames's continued activity with the Soviets had led to the execution of at least ten more agents. Ames's continuing financial struggle necessitated that he continue to sell secrets. While criminal espionage brought him more than $2.5 million from the Kremlin, Ames's carelessness with the money led to his demise. According to court documents, Ames and his wife spent nearly $1.4 million from April 1985 to November 1993. Ames's annual CIA salary never exceeded $70,000.

When Ames pleaded guilty on April 28, 1994, to a two-count criminal indictment for espionage and tax evasion, government prosecutors sought to negotiate the plea to avoid a long trial. A trial, they feared, could force intelligence agencies to disclose secrets about the Ames case, which had already embarrassed the CIA. Escaping the ordeal of a drawn-out trial, Ames was sentenced to life in prison.

As a result of the Ames case, the CIA made a number of changes, including requiring CIA employees to make annual financial disclosures and tightening the requirements for top security clearance.

Several espionage cases since the 1980s have caused the United States additional embarrassment. In 1985, Jonathan Pollard, an American Jew, was arrested for spying for Israel. Pollard served as an intelligence-research specialist for the Navy's Field Operational Intelligence Office during the 1980s. He provided Israel with about 360 cubic feet of documentation in exchange for about $50,000 in cash. He was eventually arrested by U.S. officials, and, in 1987, pleaded guilty to spying on the United States. Pollard claimed that his actions were acceptable because Israel was an ally and because the Israeli agent with whom he exchanged documents already received sensitive information from the United States. Nevertheless, Pollard received a life sentence.

Pollard in 1995 was granted Israeli citizenship while he continued to serve in a U.S. prison. In 1998, then President william jefferson clinton committed a potential blunder when he agreed upon the request of Israeli Prime Minister Benjamin Netanyahu to review Pollard's case. The promise sparked a heated debate in the United States among analysts. Clinton was able to avoid the issue when Netanyahu was replaced as prime minister in 1999.

Another incident in late 1999 also caused embarrassment to the Clinton administration. In December of that year, 60 year-old Wen Ho Lee was arrested and charged with mishandling classified nuclear secrets at Los Alamos National Laboratory in New Mexico. The charge followed months of controversial investigations by the FBI and the u.s. justice department into what some government officials believed was a spy operation supported by China. Considered a security risk, Lee was placed, by the government, in guarded solitary confinement for nine months in a Santa Fe, New Mexico, county jail cell with no opportunity to raise the $1 million bail. Lee was held on 59 counts of illegally copying design secrets as well as destroying seven tapes, to which his plea was not guilty. The government then offered Lee a plea bargain if he pleaded guilty to one count of downloading classified data to a non-secure computer. Lee finally agreed to plead guilty to this minor felony charge. As part of the plea bargain, Lee was also required to provide detailed information as to what happened to the tapes.

The justice department soon came under fire for its treatment of Lee. U.S. District Judge James A. Parker, the presiding federal judge in New Mexico who had been assigned the case, questioned why the government had chosen not to pursue a voluntary polygraph test or allow Lee to make statements about why he had downloaded such sensitive material onto an unsecured computer or destroyed certain tapes. Even President Clinton, who had appointed then-Attorney General janet reno, disagreed with her about Lee being denied bail for so long. Both Clinton and Parker agreed that if these things were provided, the previous nine months would have been much less taxing for Lee.

The FBI endured yet another humiliating incident in 2001 with the arrest of a high-ranking counterintelligence officer for the bureau, Robert Hanssen. Hanssen received hundreds of thousands of dollars in cash and diamonds from Russia in exchange for U.S. secrets. U.S. officials indicated that Hanssen's spying reached a peak during the 1980s, and his actions caused the deaths of at least three American spies overseas. According to the federal prosecutor in the case, Hanssen used the United States' "most critical secrets" as "personal merchandise." A U.S. district judge in 2002 sentenced Hanssen to life in prison.

further readings

Adams, James. 1994. The New Spies. London: Hutchinson.

Doyle, David W. 2001. True Men and Traitors: From the OSS to the CIA, My Life in the Shadows. New York: John Wiley & Sons.

Gerolymatos, Andre. 1986. Espionage and Treason. Amsterdam: Gieben.

Hartman, John D. 1993. Legal Guidelines for Covert Surveillance Operations in the Private Sector. Boston: Butter-worth-Heinemann.

Loundy, David J. 2003. Computer Crime, Information Warfare, and Economic Espionage. Durham, N.C.: Carolina Academic Press.

Udell, Gilman G. 1971. Laws Relating to Espionage, Sabotage, Etc. Washington, D.C.: U.S. Government Printing Office.

U.S. House Permanent Select Committee on Intelligence. 1995. Legislative Proposals Relating to Counterintelligence: Hearing before the Permanent Select Committee on Intelligence House of Representatives. Washington, D.C.: U.S. Government Printing Office.

Volkman, Ernest. 1995. Espionage. New York: Wiley.

——. 1994. Spies. New York: Wiley.

cross-references

Central Intelligence Agency; Federal Bureau of Investigation; Hiss, Alger; Justice Department; Rosenbergs Trial.

Espionage

Gender and sex play a very large role in fantasies about espionage, but the reality is not quite so turgid. Open-source intelligence about spies indicates that most espionage is done primarily by heterosexual men for money. There is evidence that this is the result of discrimination against women. When permitted to take on such duties, most women have performed with distinction. In addition, there is some evidence that the Central Intelligence Agency (CIA) and possibly MI6, have homophobic attitudes, though that history awaits writing.

A spy is a person who gathers information on his or her own country and gives it to a case officer who is from another country. Espionage does not usually include covert operations; it is mainly the gathering of information. In time of war, however, the two may be difficult to distinguish. The information gathered may be intelligence gathered from humans (HUMINT), from images such as cameras (IMINT), or from radio or other signals (SIGINT). A mole is a person within the intelligence services who performs espionage for the enemy. Open source intelligence is any information that can be gathered through reading, nonclandestine observation, or open conversation. The impressions of the public, newspaper editorials, news reports, and conversations overheard in restaurants and cafés all fall into this category. The vast majority of intelligence is open source and so involves no espionage.

FANTASY VERSUS REALITY

Although most espionage is not necessarily clandestine, the clandestine aspect of espionage—the secret meetings, special tradecraft knowledge, copying of sensitive documents, altered identities, living in romantic or dangerous places—is fertile ground for human fantasies. The depiction of female spies in Western fiction has undergone dramatic change from their introduction in the late nineteenth century through two world wars. At first there were not very many female spies in fiction because spying was not regarded as a feminine activity. Thus while early fictional descriptions made women spies seductive, it also portrayed them as ruthless. Literature has influenced the depiction of actualities. The real examples of women spying in World War I demonstrate that a woman could be patriotic and feminine, if not independent and sexual. Female spies from other countries, however, were depicted as despicable and sexually corrupt. After the Spanish civil war (1936–1939), even with the move in literature generally to realism, female spies became a venue for fantasies of bravura and seductiveness.

The press reflects these fictional depictions of female spies in depictions of women spies who were caught. The women fall into a few stereotypical categories: the overbearing communist woman, the evil German traitor, or the femme fatale. Indeed, the press compares real women spies with the stereotype, as they did with Elizabeth Bender, the case officer running American citizens as spies for the Soviet Union, and with Ethel Rosenberg (1916–1953). Bender, portrayed as the "spy queen" in the press, was simply not sexy enough for either the press or the American public. Rosenberg was caught in the press's conflicting stereotypes of fiction's seductive female spy and U.S. anticommunist propaganda that depicted the communist wife as overbearing.

Kim Philby (1912–1988), the noted British mole, was also homosexual, as were the four other moles from his Cambridge University graduating class. It is unclear whether the homosexuality of all five was the result of a college rite of passage, youthful sexual experimentation, or a sexual preference, but much has been made of that preference as a sign of the sexual debauchery involved in espionage. Again, however, illusion and reality conflict because more than 95 percent of spies who have been caught in the United States are actually heterosexual.

WOMEN IN ESPIONAGE

Mata Hari (1876–1917), the Dutch music hall dancer, may be the most famous female spy, but she is far from the most typical either in reality or fantasy. The women chosen to serve in intelligence agencies by the U.S. and British governments are usually highly educated with a talent for languages. Most of these women serve in important back office roles, as file clerks, code breakers, and even wardrobe mistresses for covert operations and surveillance. The role of file clerk may seem unimportant, but an intelligence service's ability to recall information using the tiniest detail, such as a large black mole on the right cheek versus a large hairy brown mole on the right cheek, can be the key to completing a particular mission.

Women fulfilled these roles more often than they fulfilled others. Julia McWilliams, better known now as Julia Child (1912–2004), the "French Chef," was posted first to Ceylon (now Sri Lanka) and later to China where her sole job was to keep track of the massive amounts of information flowing through those arenas, primarily using three-by-five-inch index cards. The first American code breaker assigned to the Soviet Union's "Venona" code was a woman with very high math aptitude. Venona was the code used by Soviet spies in the United States to pass messages to Moscow. The code used "one-time" pads where the code is known only to the sender and receiver and is never repeated. This female code breaker was put in a room with tens of thousands of coded messages and told to break the code by finding patterns. Later she became part of a team that eventually began to break the codes because the Soviets used the one-time pads more than once in order to economize.

Particularly during World War II, women were assigned to gather appropriate clothing and to train covert agents to behave like the characters they were playing. The care for detail with which this was undertaken is remarkable. The wardrobe mistresses, such as Evangeline Bell and Marjorie Levenson, worked very hard to ensure buttons were sewn on, cigarettes were smoked, and ID cards stamped in a way that would permit the agent to fit smoothly into the society in which spying was being performed.

Women involved in espionage have also worked as translators and refugee interviewers, but only rarely have they been given work rising to their levels of competence. Women during World War II were not assigned the task of decision-making or running a station. In the early twenty-first century, women rise to become station or even region chief, but the upper levels of intelligence agencies are still primarily male. The exception was Stella Rimington (b. 1935), a single mother who worked her way up to the top of the British intelligence service, MI5, serving as director from 1992 to 1996.

Sex plays diverse roles within espionage. The "swallows" were Soviet women who were instructed to create romantic and sexual relations with male foreign nationals for the purposes of blackmail. Mossad, the Israeli intelligence service, has used "swallows" to gather information on neighboring Arab states, most notably just prior to the 1967 war. Sexual liaisons have also been used as a ruse by partners in espionage as an excuse for being locked behind embassy doors in order to hide yet more illicit behavior such as safecracking. The British and U.S. intelligence services appear to have shrunk from the use of sex and of blackmail generally. Sex and gender play large roles within espionage, but primarily through discrimination, fantasy, and homophobia.

BIBLIOGRAPHY

Barron, John. 1974. KGB: The Secret Work of Soviet Secret Agents. New York: Reader's Digest Press.

Craig, Patricia, and Mary Cadogan. 1981. The Lady Investigates: Women Detectives and Spies in Fiction. London: Victor Gollancz.

McIntosh, Elizabeth P. 1998. Sisterhood of Spies: The Women of the OSS. Annapolis, MD: Naval Institute Press.

Olmsted, Kathryn S. 2004. "Blond Queens, Red Spiders, and Neurotic Old Maids: Gender and Espionage in the Early Cold War." Intelligence and National Security 19(1): 78-94.

Rimington, Stella. 2001. Open Secret: The Autobiography of the Former Director-General of MI5. London: Hutchinson.

Wood, Suzanne, and Martin F. Wiskoff. 1992. Americans Who Spied against Their Country since World War II. Monterey, CA: Defense Personnel Security Research Center.

                                         Carol E. B. Choksy

ESPIONAGE

The act of securing information of a military or political nature that a competing nation holds secret. It can involve the analysis of diplomatic reports, publications, statistics, and broadcasts, as well as spying, a clandestine activity carried out by an individual or individuals working under a secret identity for the benefit of a nation's information gathering techniques. In the United States, the organization that heads most activities dedicated to espionage is the Central Intelligence Agency.

No Standing to Challenge Government Spying

In July 2007, a split panel of the U.S. Circuit Court of Appeals for the Sixth Circuit vacated the judgment of a federal district court and ruled that plaintiffs challenging government spying under the National Security Agency (NSA) lacked legal standing to sue. The NSA operated a program providing for interception (monitoring, wiretapping) of communications involving any individuals with suspected ties to al Qaeda (a terrorist organization widely held as being a key player in attacks against the United States) without first getting a courtissued warrant. In February 2008, the U.S. Supreme Court denied review of the appellate court's decision. ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).

According to facts summarized in the Sixth Circuit's opinion, sometime after the terrorist attacks upon the United States on September 11, 2001, President Bush authorized the NSA to commence a counter-terrorism operation ultimately referred to as the Terrorist Surveillance Program (TSP). Specifics of the program were classified and therefore undisclosed. Notwithstanding, it was publicly acknowledged that the TSP included interception (e.g., wiretapping), without warrants, of telephone and Internet email communications, where one party to the communication “is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.” Another aspect of the program was “data-mining,” or collecting telephone call data, such as numbers called and length of calls, etc.

The original case was filed in federal circuit court in Detroit, Michigan by the American Civil Liberties Union (ACLU), representing a conglomerate plaintiff group that included journalists, academics, and lawyers. Together, they charged that their writings and research often caused them to visit or search Internet Web sites that used keyword searches that could be construed as suspicious under government surveillance programs. Moreover, they often placed or received international telephone calls to and from clients or colleagues in geographic locations that would also flag their communications for possible interception or surveillance. As stated in the Sixth Circuit opinion, the persons to or from whom communications were carried on with, were those “who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP.” Importantly, noted the Sixth Circuit, the plaintiffs alleged that they had a “well-founded belief” that their communications were being tapped.

Plaintiffs sought a permanent injunction against the NSA's continued operation of the TSP program. They also charged that two aspects of the TSP, warrantless wiretapping and data mining, violated the First and Fourth Amendments of the U.S. Constitution, the Separation of Powers Doctrine, the Foreign Intelligence Surveillance Act (FISA), and several other cited legislative provisions.

The NSA had invoked the State Secrets Doctrine (established in previous and longstanding Supreme Court decisions) that barred the discovery or admission of evidence that would “expose [confidential] matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727 (1953). The doctrine had two components, a rule of evidentiary privilege, and a rule of non-justiciability (where the subject matter of the lawsuit itself is a state secret, such that a claim cannot survive). In the present case, the NSA argued that, without the privileged evidentiary information, none of the plaintiffs could establish standing to sue. (The NSA did provide the district court an opportunity to review certain secret documents, in camera and under seal, in support of their invoking of the state secrets privilege.)

The district court, however, agreed with plaintiffs and condemned the government's position , stating, “There are no hereditary kings in America and no powers not created by the Constitution.” The court ruled that the NSA program violated the Fourth Amendment's prohibition against unreasonable searches and seizures because it set up a system of warrantless interception entirely outside of judicial review or oversight. The district court also held that the program violated the First Amendment because such government spying tended to have a chilling effect on free speech. Individuals fearing government monitoring might curtail otherwise protected political or legal speech or activity. The district court also granted a permanent injunction against continued operation of the TSP.

But the Sixth Circuit vacated the decision, particularly noting that the district court had premised its entire ruling on the three publiclyacknowledged facts about NSA operations, (i.e., that it eavesdropped, without warrants, on international communications suspected of involving al Qaeda) without considering the individual plaintiffs. While acknowledging that the case presented “a number of serious issues,” the appellate court further noted that none of these substantive issues could be addressed without a preliminary determination that the plaintiffs had standing to litigate those issues.

The appellate court went on to mention that standing was an aspect of justiciability, meaning that there must first be a careful judicial examination of whether any plaintiff (only one needed) had standing that would entitle him or her to an adjudication of the substantive claims. The court found that no plaintiff was able to show that he or she had actually been subjected to alleged NSA surveillance, but had merely premised the lawsuit on a subjective “well-founded belief.” Therefore, the plaintiffs lacked standing to sue. Further, the court found the plaintiffs had not claimed any separate injury specifically tied to the alleged NSA datamining program, making that claim unjusticiable as well. Having found that plaintiffs lacked standing to sue, all claims fell and the appellate court vacated the district court's decision and remanded with instructions to dismiss plaintiffs' claims.

The Sixth Circuit did not reach the issue of whether the lawsuit was moot after the Bush Administration announced in January 2007 that a FISA court had approved the communication interception program. (The original district court decision was in 2006.)

ESPIONAGE

The act of securing information of a military or political nature that a competing nation holds se cret. It can involve the analysis of diplomatic re ports, publications, statistics, and broadcasts, as well as spying, a clandestine activity carried out by an individual or individuals working under a secret identity for the benefit of a nation's information gathering techniques. In the United States, the organization that heads most activities dedicated to espionage is the Central Intelligence Agency.

Former State Department Official Charged with Concealing Trip to Taiwan

In September 2004, federal prosecutors charged Donald W. Keyser, a 30-year veteran with the State Department, with deliberately covering up a trip to Taiwan in violation of U.S. policy. Although Keyser was not charged with espionage, the case has presented a number of questions about his interactions with officials from Taiwan.

Since 1979, the United States has maintained a so-called "one China" policy, under which the U.S. only officially recognizes the People's Republic of China in diplomatic relations. Since that time, the U.S. and the Republic of China, Taiwan's official name, have had a difficult relationship. The U.S. has promised to provide Taiwan with the means to defend itself but also continues its relationship with the People's Republic of China.

Because China and Taiwan are adversaries, both sides are sensitive to the relationship of the U.S. to the other side. China has reportedly been distressed over the apparent willingness of President George W. Bush to sell arms to Taiwan. Conversely, Taiwan became concerned when Bush stated to China's prime minister, Wen Jiabao, that he would not support a move toward formal independence by Taiwan. Experts referred to Bush's statement as "embarrassing, humiliating for Taiwan." Commentators have also noted that Taiwan has a strong interest in discovering information from the inside of the U.S. government.

Keyser attended the now-defunct Stanford Center of National Taiwan University as a student in the late 1960s and early 1970s. He joined the State Department in 1972 and developed an expertise in Chinese policy. Keyser, who speaks fluent Mandarin Chinese, held positions in China and Japan. He later served in senior positions in the federal government dealing with Asian affairs.

Keyser eventually assumed the position of deputy director of the Bureau of Intelligence and Research, a part of the State Department. He became embroiled in an internal controversy in 2000, when former Secretary of State Madeleine K. Albright suspended him for 30 days after an incident involving a stolen laptop computer. The computer reportedly contained sensitive weapons information. Although Keyser's supervisor, J. Stapleton Roy, a U.S. ambassador, said that Keyser was not responsible for the computer's disappearance, Keyser was reassigned after he served his suspension.

As of 2003, Keyser held the position of principal deputy assistant secretary of state. He was heavily involved in American policy in East Asia. According to court documents filed by the

Federal Bureau of Investigation, Keyser visited China on official government business on August 31, 2003. After traveling to Tokyo on official business, he allegedly visited Taiwan on a three-day trip. Because the U.S. and Taiwan do not have diplomatic relations, Keyser could not visit Taiwan on official business without clearance. Reports indicate that Keyser's superior, James A. Kelly, assistant secretary of state for East Asian and Pacific Affairs, would have vetoed any request to visit Taiwan on official business. Because Keyser possessed a top-secret security clearance, he was required to report all of his foreign trips. He did not report the trip to Taiwan through submission of the prescribed form. Other U.S. officials, including cabinet members, have visited Taiwan on non-official business.

Although he failed to report his Taiwan visit, Keyser made no effort to conceal the visit. According to these reports, the U.S. embassy in Tokyo disclosed an official itinerary showing that Keyser would travel via China Air from Tokyo to Taipei, Taiwan. A Washington-based newsletter entitled the Nelson Report noted that Keyser "was clearly making no effort to conceal his trip."

The FBI began to tail Keyser during the spring and summer of 2004. Keyser resigned from his position in the State Department on July 30, 2004. An affidavit filed by the FBI indicated that one day after his resignation, at a Washington, D.C. restaurant, Keyser gave two Taiwanese officials some envelopes "that appeared to bear U.S. government printing." Agents again witnessed Keyser passing the Taiwanese officials a document at a meeting on September 4 at another restaurant. As the three men left the restaurant, the FBI agents stopped them and seized the six-page document. The affidavit indicated that the document contained information "derived from material to which Keyser had access as a result of his employment with the Department of State."

Federal prosecutors filed a criminal complaint against Keyser on September 15, 2004 in the U.S. District Court for the Eastern District of Virginia in Alexandria. The complaint only charged Keyser with concealing his trip to Taiwan. Court documents did not indicate whether Keyser had provided any classified documents to the Taiwanese agents, although news reports suggested that additional charges could be filed at a later date. The FBI's affidavit also does not indicate any improper motive on Keyser's part to visit Taiwan or to provide documents illegally to Taiwanese officials. Nothing in the criminal charge indicates that Keyser received money from the Taiwanese government.

Keyser reportedly told the FBI agents that he was sightseeing in Taiwan during this visit there. He did not inform anyone of the trip, including his wife, who is an officer with the Central Intelligence Agency. Experts reportedly expressed surprise that Keyser would visit Taiwan immediately after visiting China. According to a former high-ranking State Department official, "The whole idea that he could take a trip like this that was not authorized while he was deputy assistant secretary is ludicrous to me. People in that position don't just move around anonymously."

Keyser faces a maximum of five years in prison.