The emergence of market states will have a profound effect on the conduct of warfare and the maintenance of defense establishments. The general trend away from conscription and toward all-volunteer forces, the priority given to force protection that has accelerated the deployment of armed drones and impeded successful humanitarian interventions, the outsourcing to private firms of diplomatic security, logistics and many other traditional military functions, all reflect this development. But so too does a much less noticed consequence of the move to market states, the vast increase in the power of private actors — corporations, profit and non-profit, NGOs and even individuals. “They are becoming,” Gregory Treverton wrote, “in ways hardly realized let alone charted, not the objects of the international order but its subjects, its architects. They are becoming the setters of international norms, not free riders on rules set by states.”
In such a situation, it would hardly be surprising that intelligence operations will also be profoundly affected. We should expect greater outsourcing of intelligence collection and analysis — NSA’s reliance on private sector servers is one example on the collection account — and we might also expect private corporations to increasingly undertake intelligence operations — spying — on their own behalf or that of their clients, just as FedEx and UPS have steadily bankrupted the less nimble and less efficient US Postal Service.
When the media or its allies in the legal community undertake to collect against the US government, for profit and for ideological reasons, is this espionage?
Let’s begin with the closest case, not with The News of the World hacking into police cell phones, but with the government person who claims to be a whistleblower. If he steals government property or secret information when there are other statutory and regulatory channels available to him that will expose government wrongdoing, does he forfeit the mantle of the whistleblower? It’s no good to say that his motives may be pure; the Cambridge Five had the purest of motives. Nor does it exculpate the illicit collector that he is not working for an enemy government, or even that his actions will not benefit the foreign adversaries of the US government; it is enough to qualify him as a spy that his activities are not restricted by service to US interests as these are defined by our democratic methods. That he is collecting for an American ally, for example, is sufficient to make him a spy.
Despite the general outrage at the Department of Justice’s suggestion that a Fox News reporter had conspired with a State Department employee to violate 18 US Code § 793 (which makes the unauthorized disclosure of national defense information a crime), it is not hard to see how Justice came to this conclusion (a conclusion endorsed by the federal judge who signed off on the search warrant of the reporter’s logs precisely on the finding of probable cause that the reporter had indeed committed a crime.) Emails from the reporter set up a system of aliases for himself and the employee; devised a system of coded communications to arrange clandestine meetings; specifically solicited US intelligence on North Korea that the reporter specified was highly classified; and the reporter published the results. His goal, he said in one email to the employee — who later claimed he had been suborned by appeals to his vanity and the hope of a position at a think tank — was to push American policy in the direction the reporter thought advisable.
The firestorm of reaction to these disclosures did not come from an inflamed public, whose interest in the US’s preserving secret sources of information inside the North Korean government about its nuclear plans is hardly negligible, but from the news media. The president publicly apologized for the government’s temerity in seeking the warrant, though with the number of persons privy to the secret information it is hard to see how DOJ could have gotten an indictment otherwise.