The Espionage Act Does Not Protect American Lives

FBI Director Comey has deemed that criminal intent is required to bring charges against anyone that handles our state secrets in a grossly negligent manner. Therefore, there are no consequences for haphazardly mishandling our state secrets. Thus, the Espionage Act does not protect our state secrets, nor does it protect American lives. It merely prevents criminal intent.

Criminal intent is not a requirement to prosecute a private sector executive. In the not-so-good-old-days, a small number of corporate executives operated with plausible deniability in order to run their companies in unscrupulous ways. Lower-level managers would take the fall in criminal actions taken against their companies. Then came Enron. Enron executives went to jail because the court decided that those executives either knew or should have known what was going on within their company. Criminal intent could not be established if the executive knew nothing about the crime. But if the law requires the executive to run the company in a competent and responsible manner, then (with or without criminal intent) the executive is criminally accountable.

As a result of the Enron disaster, Congress passed the Sorbanes-Oxley Act to codify the requirement that corporate executives be competent and diligent in the execution of their duties as fiduciaries of private investors, employees and retirees. The Act focused on financial matters of publicly traded corporations. However, the Act set the tone of accountability in all aspects of corporate governance (or lack thereof). Because of the Act, corporate executives know that they will go to jail if they are grossly negligent in their duties. Unfortunately, the premise of competence and diligence put forward in the Act only applies to the private sector. The executives that run our $3 trillion per year government have no such requirements.

Those with the fiduciary responsibility of protecting our state secrets that can put our citizen soldiers’ lives at risk should be competent. Unfortunately, the enforcement of our laws explicitly removes the requirement of competence and diligence. The required proof of “criminal intent” to enforce the Espionage Act’s gross negligence clause is a release from competency requirements. It allows “extremely careless” handling of our state secrets to be perpetrated with impunity.

The concern is not the Clinton emails. Those emails are gone. The concern is the next government executive that handles our state secrets in an “extremely careless” manner. There are no consequences in place to prevent a Clintonesque repeat. The discussion herein presents the case for why existing precedent is wrong: The Espionage Act does not protect our state secrets, nor does it protect American lives. It merely prevents criminal intent.

The recent leaks of Secretary Powell's and the DNC's emails are reminders of how vulnerable we are to cyber-attacks. We must act swiftly to strengthen the protection of our state secrets. The Espionage Act must be rewritten. It must specifically legislate that gross negligence does not require criminal intent. A strengthened Espionage Act will bring the accountability and competence of the private sector to the halls of our government. Thus, we will protect our state secrets and the lives of Americans. 
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PLEASE: Click on the "email" button below this blog post and send this article to your congressional representative and to your senators. Email this article to your friends and tell them to do the same. If we push Congress for this change, future American courts will be able to deem that our government executives either knew or should have known how to recognize and protect our state secrets. We will save American lives.