The National Security Advisor Exception Under the Espionage Act

When the FBI found sensitive — though it turned out, unclassified — documents in Thomas Drake’s basement, he was charged under the Espionage Act. When the Army found hundreds of thousands of classified — but not Top Secret — cables on Bradley Manning’s computer, they charged him with Espionage and Aiding the Enemy.

But when the FBI found Top Secret documents on Sudan — our actual enemy, if sanctions count — in Reagan National Security Advisor Robert McFarlane’s basement, it decided to investigate him for illegal lobbying.

The FBI has searched the apartment of former Reagan administration national security adviser Robert McFarlane for evidence of whether he lobbied for the government of Sudan, in violation of federal law.

The search warrant is on file in federal district court in Washington. It shows agents seized items this month including handwritten notes about Sudan and White House documents with classifications up to Top Secret.

From this I can only assume that McFarlane is being subjected to the same double standard that Clinton’s National Security Advisor Sandy Berger was (represented, it should be noted, by former Criminal Division chief Lanny Breuer), when he snuck 9/11 related documents out of the Archives, yet only plead guilty to a misdemeanor.

When National Security Advisors take top secret documents, they’re called lobbyists, not spies.

I can’t wait to find out what Condi Rice will be called if she’s ever caught with sensitive documents in her basement.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

10 replies
  1. bmaz says:

    Do we know where McFarlane got the docs? I mean, they surely were not Reagan era, right? I guess it is hard to nail McFarlane after all the coddling that has been done for material supporters like Pete King, Rendell, Freeh, Mukasey, Guiliani etc.

  2. LM Lewis says:

    And if secrets were shared as “pillow talk,” a la David Petraeus or (allegedly) in the case of Benjamin Pierce Bishop, it’s treated much more sympathetically than if one tries to expose government wrongdoing. Compare Petraeus (no criminal charges) and Bishop (threatened with 20 years for allegedly transmitting nuclear weapons secrets) with Thomas Drake (threatened with 35 years) and Manning (life imprisonment) for reporting government wrongdoing. It’s shameful.

  3. What Constitution says:

    A new category: Too Prig to Fail. Actually, the MEK apologists forged the path, but McFarlane could be the poster boy here.

  4. Peasantparty says:

    I saw EW’s tweet about this early today. I knew right away that nothing would come of it because the man is a NeoCon.

    All you need to know about him is that he was Henry Kissinger’s,(a man that I detest) aid. He was also charged in the Iran-Contra affairs along with Ollie North and Poppy Bush pardoned him so he never spent a days sweat of worry. He is good pals with Poindexter.

    See what I mean? What normally would be charged against some individual will never be placed upon a Kissinger troup member.

  5. Frank33 says:

    British hacker Gary McKinnon, narrowly escaped from being thrown into the Gulag. Holder wanted to destroy his life with 60 years in prison. Holder is a psychopath, destroying people.

    McKinnon hacked into NASA Building 18, and into the US Space Command.

    If it is corporate crime, Holder protects the corporations.The Thieves of Wall Street remain free to plunder again.

    The US authorities tried to extradite Mr McKinnon to face charges of causing $800,000 (£487,000) worth of damage to military computer systems and he would have faced up to 60 years in prison if convicted.

  6. Phoenix Woman says:

    For the historical record:

    Sandy Berger was being persecuted for making and then later destroying copies of his own notes on the Millenium Plot (you know, the one he helped stop because unlike Condi he didn’t tell the CIA, FBI and other intelligence and law enforcement agencies to ignore Al-Qaeda because that was just Saddam trying to distract us, per Ahmad Chalabi?

    He was using those notes both as research for a book and to refresh his memory prior to testifying before the 9/11 commission — and was demonized in the media for it as well as being actually threatened with serious prison time (as it was, he got off with a $50,000 fine, probation, and community service, but only after the GOP wrung as much publicity out of him as possible).

    Notice that this CNN story on Berger’s sentencing (http://articles.cnn.com/2005-09-08/politics/berger.sentenced_1_sandy-berger-documents-terror-threats?_s=PM:POLITICS) contains a flat-out lie: It says he destroyed documents, when no original documents were destroyed or went missing. What he did was to make copies of the material, use the copies for research on his book and for his upcoming testimony before the commission, and then dispose of the copies, which is precisely what you’re supposed to do with them.

    More on the vast amounts of bullshit dumped on Sandy Berger can be found here:

    http://mediamatters.org/research/2005/01/13/ny-post-revived-sandy-berger-socks-docs-rumors/132574

    http://mediamatters.org/items/itembody/200408020008

    http://mediamatters.org/research/2005/08/16/conservatives-baselessly-linked-sandy-berger-to/133653

  7. beowulf says:

    @Phoenix Woman:
    Its not like its the paper itself that makes a document classified. its the sensitive nature of its information. Its not surprising there are rules on writing and securing notes based on reading classified material and if you’re a former NSA you’re expected to know them. Berger’s sentencing doesn’t strike me as any sort of injustice.

  8. Mike says:

    CIA withholding of al-Hazmi and al-Mihdhar’s presence in the US began in January 2000 right around the Millennium plot time frame. Berger has never explained what that was all about. For that matter neither has Clarke except for a suggestion that the CIA was trying to double them and failed. According to Clarke’s theory the CIA didn’t tell anyone after this failed effort because high level officials were afraid they would be prosecuted not telling the CSG or the White House. Both guys would have the public believe they were out of the loop. Rice vs. Clarke or R vs. D doesn’t do much for the public. Officials from R and D administrations have never credibly explained the al-Hazmi and al-Mihdhar withholding.

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