Tag Archives: National Security

Willfulness and the Harm of Unlawful Retention of National Security Information

Discussions of the Espionage Act usually focus on the public’s conception of “spying.” Spies steal information that their government seeks to keep secret and disclose that information to other governments. A common acronym, “MICE,” describes the common motivations for spying: money, ideology, compromise, and ego.

The Espionage Act, however, covers a broader set of conduct that can compromise U.S. national security. The original Act, enacted as the United States entered the First World War, included the precursors to prohibitions against undisclosed foreign-government activities in the United States.

The Espionage Act also prohibits taking or possessing national security-related information from the government and keeping it in an unauthorized location. This article explains how some criminal law protections for national security information interact with Executive Branch decisions to protect information based on national security concerns, and how those protections apply in cases where a defendant stole and kept national security information, even if the defendant did not disclose that information to an unauthorized recipient.

To the uninitiated, taking national security information from its authorized location and keeping it in an unauthorized location may seem like a ministerial or administrative violation without much substantive consequence. But to the national security professional—and to the national security professional’s counterparts in adversarial services—such theft constitutes a profound compromise of security.

Authorized locations for the storage of national security information are approved because they are secure and because they facilitate the government’s control over, and tracking of, individuals who access that information—for example, as then-Assistant Attorney General John Demers stated, when Nghia Hoang Pho stole highly classified information and retained it at an unauthorized location, he “placed at risk our intelligence community’s capabilities and methods, rendering some of them unusable.”

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FDI Like You’re FDR: CFIUS Review Under the Biden Administration’s Rooseveltian Conception of National Security

In an era where “economic security is national security,” China’s growing economic power presents America with a distinct challenge.

Will Moreland looks to America’s response to suggest that the Biden administration is returning to an earlier “Rooseveltian” conception of national security—one which appreciates that a healthy American middle class is essential to defending democracy.

Moreland finds that under that more expansive vision of national security, the Committee on Foreign Investment in the United States (“CFIUS”) is at risk of overuse. Because Moreland fears a more cumbersome and expansive investment review is likely to harm more than help the Biden administration’s foreign policy, he proposes a narrower approach.

This narrower CFIUS approach stands in contrast to recent calls for expansive investment review—and Moreland concludes it equips today’s policy makers with the right tool for the right problem.

The Selling of a Precedent: The Past as Constraint on Congressional War Powers?

Has precedent eroded Congress’s war powers? James Lebovic looks to the various standards of social-scientific inquiry to suggest that an exclusive focus on legal analysis has unnecessarily limited the war powers debate in recent decades.

Lebovic finds that even though Congress appears to defer to the President based on war powers precedent, it is often politics—and not legal precedent—that explains Congress’s deference.

Lebovic finds that assessing rule-based, fact-based, and action-based precedents through social-scientific standards shows that Congress often defers to the President because of the political process. This social-scientific approach stands in contrast to prevalent legal analysis—and Lebovic concludes that today’s practitioners would do well to consider it as they assess the boundaries of congressional war powers.