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why are espionage convictions so rare?

Here, former FBI Special Agent Edward Appel and J.J. Smith's defense attorney Brian Sun explain why it is so difficult to win an espionage conviction in a U.S. court of law.

picture of appel

edward appel
FBI Special Agent, 1973-1997

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Let me just explain the basic approach that you might take as a counterintelligence officer to a case where you think espionage is being committed. Perhaps someone is trying to steal U.S. nuclear weapons secrets. So you have some goals. The first goal is to find out who's responsible. Who's got access to those secrets that might be giving them to the other side?

Having developed a primary suspect, you have to find out if there's concrete evidence that this person did it. And are you going to go about collecting the evidence in a way in which it would be most conveniently produced in a court of law?

If you conduct intelligence operations through close-in surveillance of this person, you might actually produce evidence that's not usable in a court of law. If you use sources and methods that are not usable in a court of law, you might very well make it impossible ever to prosecute that person. But you would find out exactly what they're doing, exactly what secrets they're finding out, exactly what secrets they're passing to the other side, that sort of thing.

At the end of the day you have to make a decision. Are you going to prosecute this individual? Are you going to see to it that this person is fired? Are you going to remove their access to classified information? Are you going to interfere with their relationship with the foreign intelligence service, make it impossible for that person to ever really help that foreign intelligence service again?

In the overall scheme of things, you have a couple of big goals. One is to cut off that foreign intelligence service from its access to classified U.S. government information. Another is to neutralize that source of that foreign intelligence service, so that person can't ever be a threat to the U.S. again. I would say that in most of the cases that Bill Cleveland or anybody touched in my time in California, we succeeded in removing the access that the foreign intelligence service had through U.S. sources to the classified U.S. government information. It wasn't always pretty. And it did not result in as many prosecutions as I would have liked to see. It didn't mean we weren't successful. …

What brings the few cases that do come forward [for prosecution]?

There's a federal process for bringing a case. And that is that the federal investigative agency, in this case the FBI, brings the case to the designated federal prosecutor, who gives a prosecutive opinion. And usually it results in saying, "Yes, I'll prosecute," or "No, I won't." Frequently it results in a long list, a laundry list, of things that the investigator has to do in order to prove the case -- even to get it indicted, much less into a court.

In the case of espionage, you will find that the United States government has lost one espionage case since World War II. One. … Every other case has been a victory for the United States government. Why? Because all of the dots have been connected. All of the evidence is there. In almost every instance, the individual charged has confessed to espionage and there has been incontrovertible proof. We have a very high set of standards, historically, in the United States for prosecuting espionage. We don't take the 80 percent cases. We take the 99.9 percent cases and those are the ones that are brought.

In espionage you have a big complication that frequently occurs. And that is that the agency from which the classified information was stolen has no particular interest in seeing the case get into court. The intelligence and counterintelligence agencies have good reason to prevent the case from getting into court, because all of their methodologies are going to be laid open for everyone to see.

In the old days, before the Classified Information Procedures Act, you had to lay out the secrets in front of the court as well, and they became part of the public record. So that was a good reason not to bring an espionage case. But today there are ways the judge can seal those records so that the actual classified information stolen never gets into the public media.

Nevertheless, I would point out to you that all of the major espionage cases in recent years have resulted in books and articles and shows on TV. And those shows and books, the media, have made it very easy for foreign intelligence services to see exactly how the U.S. operates and, in fact, who was doing the operating. So it opens up counterintelligence and counterespionage to public scrutiny and to the scrutiny of foreign intelligence services. …

picture of sun

brian sun
Defense lawyer for J.J. Smith

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One of the things that is important for people to understand about the counterintelligence operations of the FBI is that most of the agents assigned to CI type work are basically intelligence or information gatherers. They don't generally focus on criminal investigations. Remember, they collect information and then evaluate what importance it might have vis-à-vis national security interests. In cases involving the so-called campaign finance scandal and the national security implications [from] our nuclear weapons labs, to wit the Lee case, those were matters that did ultimately turn into criminal investigations and prosecutions. And the thing that I like to point out to people is that there's a big difference between information gathering, intelligence assessments, and proving evidence of crimes in court, a big difference. The former, the intelligence gathering, the information gathering, a lot of it is circumstantial information, innuendo, trying to evaluate whether it really has any real weight to it.

A criminal prosecution investigation involves a lot more. It means hard evidence, something that can be persuasive, reliable, admissible, credible, and the gulf between the two I think exposes some of the problems that we had and that the FBI experienced in both campaign finance and the so-called espionage cases. The bureau was unable to distinguish between what was intelligence that should be relied on versus what should be admissible, hard evidence that actually could be proven with credibility in a court of law. There was a substantial problem in that realm and I think a breakdown, if you will, in appreciating the difference in those two types of tasks, if you will.

… [If] you look back on the history of the [FBI's] China program, there seems [to be] one [screw]up after another. I mean, what's going on? Why are they bringing the cases then?

Well, in terms of trying to understand why perhaps some of these cases experience problems, I think you go back to the point I just made, which is that trying to translate and make a piece of raw intelligence, like a meeting in a hotel room in China between a Chinese scientist and an American scientist and turning that into a criminal prosecution requires a lot more than just knowing two people met in a room. Or may have talked about a certain subject. And that's the problem you had in these types of cases. People were extrapolating that a meeting in a hotel room could well have been sinister and that what was exchanged there somehow implicated national security interests. But to prove that and to establish whatever happened in a hotel room seven, eight years ago, is very difficult in a court of law from a criminal prosecution standpoint.

But then why bring the cases?

Well, that segues into an issue that I think manifested itself in the campaign finance case and the espionage cases; namely that there were other factors influencing the FBI. Namely partisan politics, media interest, intense media interest in the subjects of China and their involvement in our political system and in perceived perceptions that the Chinese were in fact trying to steal our technology either for military purposes or for industrial advancement. So when you have those forces that come into play -- media interest, partisan politics, congressional committees, administrations, the executive branch -- that are highly sensitive and defensive to criticism that they're being soft on national security, all those variables coming into play affected in no small measure, in my view, the FBI's approach to these cases and the pressure that was brought to bear on the FBI, to do what? To translate this information that they had gathered in these cases and turn them into criminal prosecutions, because the political pressures were such that heads were being called for on the chopping block and the bureau had to deliver them. …


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posted january 15, 2004

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