Espionage, by Any Other Name

03/25/2015 06:50 pm ET | Updated May 25, 2015
MENAHEM KAHANA via Getty Images

Recent reporting by the Wall Street Journal that Israel has spied on U.S. negotiators who are crafting a deal with Iran that would limit that nation's ability to enrich uranium in exchange for an easing of economic sanctions has raised alarms within the White House. As the Wall Street Journal noted, the issue that rankles the Obama administration the most isn't the fact that Israel spied on the United States -- Israel has long topped the list of "friendly" nations that actively collect intelligence on the American target -- but rather that the Israelis have used information so gathered to enable a program of directed political action in Washington, DC designed to undermine the policies of the United States. Israel accomplished this by feeding the "take" back to Republican lawmakers in Congress in order to facilitate legislation intended to derail the ongoing international negotiations with Iran over its nuclear program.

The information reportedly collected by Israel was classified by the U.S. Government, making any effort to gain unauthorized access to it illegal under U.S. law, as would be any subsequent receipt and use of this information by anyone who does not possess both the appropriate security clearance and authorization. Any Israeli involved in the collection of such information would be a spy, and any American who knowingly gained unauthorized access to this information and used it on behalf of a foreign government to disadvantage the United States a criminal. This includes members of Congress not specifically cleared for this information but who received it as a result of briefings provided to them by representatives of the Government of Israel.

While much has been made about the so-called "treasonous" actions of 47 members of Congress, led by Senator Tom Cotton of Arkansas, in penning an ill-advised letter to the Government of Iran aimed at undermining the ongoing nuclear negotiations, there is a stark difference between political stupidity -- which the act of writing such a letter represents -- and espionage, which is what those members of Congress who have aided and abetted the Government of Israel in its efforts to collect and disseminate classified U.S. information to unauthorized persons have engaged in.

Israel is well known for extensive "public relations" campaigns designed to influence and shape American policy in a manner favorable toward Israel -- the Wall Street Journal discreetly referred to such as "levers of political influence unique to Israel." I have been on the receiving end of this charm offensive, having been flown in an Israeli Air Force helicopter to the ruined fortress of Masada, the birthplace of Israel's martyr complex, and on to the Golan Heights, to "witness" first-hand the threat Israel labors under. Numerous American politicians and officials have been provided similar tours, all in an effort to solidify the notion of Israel as a nation under siege, and thereby worthy of American support.

The threat to Israel is not theoretical. But criminal acts by those sworn to do harm to Israel do not justify criminal acts by Israel in response. The slaughter of civilians in Gaza (and elsewhere), the ongoing land grab in the West Bank through the construction of settlements, and spying on America cannot be condoned by anyone under any circumstance. Israel seeks to define itself as a clone of America, and thereby cloak itself with the mantle of exceptionalism that makes it immune to criticism or accountability. Exceptionalism is problematic enough when used by Americans to justify American actions. But when it is used by a foreign government purporting to be acting as an extension of America and American values, it is just plain wrong.

The invisible infiltration of the American body politic by Israel has been well documented, and yet vociferously denied by those who are perpetrating it. But while such activity may be ethically questionable, it is not necessarily, by and of itself, illegal. The nexus of intelligence collection and political manipulation described by the Wall Street Journal far exceeds the influence peddling that Israel has long been known for, rising instead to the level of a covert operation intended to undermine American foreign policy and national security. This kind of activity is both unethical and illegal, and especially reprehensible when conducted by members of Congress sworn to uphold and defend the Constitution of the United States. One only needs to recall Jonathan Pollard, the former U.S. Naval intelligence analyst turned Israeli spy who is currently serving a life sentence for espionage, to understand that Israel is not an extension of the United States, but rather a foreign nation whose policies are often at odds with those of our own and which will go to any extreme, including spying on its supposed close friend and ally, to see those policies through to fruition.

The Obama administration has aggressively prosecuted those responsible for leaking classified information to unauthorized recipients. Bradley Manning was imprisoned for facilitating the massive release of classified military and diplomatic reports and cables to WikiLeaks. And former CIA officer Jeffrey Sterling was likewise convicted and imprisoned for leaking sensitive intelligence to the New York Times. Both of these individuals were convicted of transmitting classified information to unauthorized recipients. Successful prosecutions for the crime of unauthorized receipt of classified information have been harder to come by. Take, for instance, the case of Steven Rosen and Keith Weissman, both of whom worked for the American-Israeli Public Affairs Committee, or AIPAC -- arguably the most influential pro-Israel lobby in Washington, DC. Both were accused of receiving classified information and subsequently passing it on to an official from the Israeli embassy. The case against the two AIPAC operatives was eventually dropped on the grounds that they were merely unwitting conduits of information, as opposed to having actively collected classified information for the purpose of transmitting it to a foreign government.

One could argue that members of Congress who received the Israeli briefings are more like Rosen and Weissman than Manning and Sterling, and that their actions, while representative of poor judgement, fail to rise to the level of actual criminal conduct. This, however, would imply a level of passivity that simply does not exist in this case. Not only have the members of Congress who received Israeli briefings derived from intercepted U.S. diplomatic communications illegally received classified information, they actively coordinated with the Israeli government to use this information to undermine the policies of the U.S. Government. This is criminal activity chargeable under 50 U.S.C. § 783 and other U.S. statutes. The announcement by Boehner on January 21, 2015 that Netanyahu would address the U.S. Congress about the issue of Iran coincided with a concerted push by Israeli diplomats, armed with classified U.S. diplomatic traffic detailing the ongoing talks with Iran that had been intercepted by Israeli intelligence, to influence members of Congress. This represents acts chargeable under 18 U.S.C. § 371, the same general conspiracy statute used to convict others accused of acts of espionage. Both are felonies, punishable by fines and up to ten years in prison for each charge. We're not talking politics as usual here; we're talking criminal behavior.

Congress has every right -- even a duty -- to oppose the policies of the Executive Branch where there is legitimate disagreement. This can even extend to articulating strong pro-Israeli positions when it comes to Iran and its nuclear program. But it does not permit the kind of coordination that transpired between Speaker John Boehner and Israeli Prime Minister Benjamin Netanyahu to selectively leak classified U.S. negotiating positions and strategies in an effort to derail the ongoing talks between the United States and Iran. In fact, there is little difference between the role played by John Boehner and his fellow Republicans in Congress in doing the bidding of Israel today and the role played by Alger Hiss and other members of the so-called "Ware Group" working on behalf of the Soviet Union back in the 1940's. Hiss and his fellow travelers sought to influence U.S. policy on behalf of their masters in Moscow; Boehner and his cohorts seek to do the same on behalf of their masters in Tel Aviv.

Such action was treasonous then, and it is treasonous today. While Boehner and his ilk claim their actions -- unlike those of Hiss -- are for the greater good, at the end of the day Israel is a foreign country whose status as a close ally of the United States does not shield it or those who act on its behalf from U.S. law. There is no doubt that members of the U.S. Congress illegally received classified U.S. diplomatic information from the Government of Israel and then knowingly and willfully made available this information to unauthorized persons (i.e., the general public) in a manner that prejudiced the interests of the United States for the benefit of a foreign government. This is the classic definition of espionage, and we should not know it by any other name.