“The Skinny on American Intelligence & the Law” – with D.C. “Super Lawyer” Mark Zaid

Erin Dietrick: Welcome to "SpyCast," the official podcast of the International Spy Museum. I'm Erin Dietrick, and your host is Dr. Andrew Hammond, the museum's historian and curator. Each week we explore some aspect of the past, present, or future of intelligence and espionage. If you enjoy this week's episode, please consider leaving us a 5-star review on your podcast player. Coming up next on "SpyCast."

Mark Zaid: We got the information to where it needed to be, and then our job was to frankly protect the identity of the whistleblower and ensure there was no retaliation against them inside their agency, which to our knowledge, there never was.

Erin Dietrick: This week's guest is Mark Zaid. Mark is an attorney who specializes in litigation relating to national security, international law, and the Freedom of Information and Privacy Acts. Or in simpler terms, he's a lawyer to the spies. Mark has represented whistleblowers, current and former members of the intelligence community, the American Polygraph Association, and beyond. He's the executive director and founder of the James Madison Project, co-founder of the non-profit law firm Whistleblower Aid, and advisory board member here at the International Spy Museum. He joined Andrew in the studio to discuss all things intelligence and the law, from the Rosenbergs to Wonder Woman's lasso of truth. The original podcast on intelligence since 2006, we are "SpyCast." Now sit back, relax, and enjoy the show.

Andrew Hammond: Thanks ever so much for coming to speak to me about American intelligence and the American legal system. I really appreciate you coming in to speak to me and educate our listeners, Mark.

Mark Zaid: Always a pleasure to be here at the Spy Museum.

Andrew Hammond: We were just talking over lunch about the nature of your job. So just briefly for our listeners, what does being a lawyer in this space entail? How is it different from being a lawyer in other spaces? How does it differ from what most lawyers are doing? Are there particular quirks or things people just wouldn't think of?

Mark Zaid: So for one thing, being a lawyer in Washington, DC is very different generally than anywhere else in the country. You know, we have this saying about being inside the beltway. And you can certainly be a lawyer who does contract work in DC, real estate, whatever, but there's so much obviously involving the federal government that is unique to anywhere else. And I started for the most part, my legal career here 30 years ago. I had a little bit of time up in the Albany, New York area before I came down here. But I've always been dealing with national security cases. And the sexy thing would be, I'm a spy lawyer. And I am. I represent individuals who are covert case officers at the CIA, or work at the Defense Intelligence Agency, or the National Security Agency, or the Federal Bureau of Investigation. The State Department has diplomats, whatever it might be. Individuals who typically would hold security clearances. And the need for me to represent them could be something mundane, as something just going on with their employment. Or it could be something with their security clearance, or could be something where they're a whistleblower about some illegal operation they were engaged in. Most people would not understand a lot of what I do. There's very few people who do what I do. I had to persuade a number of malpractice carriers to explain to them what I do. And now I just say I'm an employment lawyer rather than a spy lawyer or a national security lawyer, because they didn't understand what that meant. But it is incredibly unique. For one, you might need to have a security clearance for some of these cases. If I'm representing a case officer at the CIA whose very affiliation with the CIA is classified, so that no one can know that's where they were, that's a problem. And as the lawyer, you have to understand that the slightest thing you do could reveal something that is against the law to reveal. So for example, if I have someone come to me, and they go well, I work for the federal government, I already know that means they can't tell me where they work at that time. They may say well, I work across the river, or I work up north. That'll give me an idea of which agency they're talking about. But before I can -- they can tell me what their issue is, generally. Hey, I'm losing my security clearance, I got a DUI. There's nothing classified about that. It's only where they work that's classified. But before I contact their agency to talk to that agency about their case, I have to be cleared into the case. Because if I actually just call over to the CIA and say hey, I represent John Smith. Oh that means John Smith just violated the law by telling me he works at the CIA before I've signed a non-disclosure agreement, secrecy agreement, to have access to that information. So there's all these little pitfalls that many folks and lawyers wouldn't think of.

Andrew Hammond: So you have to go through the same security clearance process as people that are joining the CIA, or it's a different one?

Mark Zaid: It varies. For the most part, no. The CIA does what they call a limited security access approval for the lawyers, which is essentially what's called a NAC, a national agency check. They check the arrest record, things like that. Is there anything in their files about this person? It's essentially an interim secret clearance. Now other cases, I do need to have an actual security clearance, where I undertake a background investigation. I fill out what's called a standard form, an 86 -- an SF-86. There are interviews of me. There are interviews of neighbors, friends, et cetera. They do all sorts of agency checks, credit checks, check, verify whatever might be on the form. I have never been polygraphed, although I handle polygraph cases all the time. We did a presentation here at the Spy Museum a couple of years ago about polygraphs. I've represented the American Polygraph Association. I've represented a lot of polygraphers. I've challenged, I've sued the U.S. government about its use of pre-employment polygraphs. So I do a lot of work. And then I prep people for it. But I've watched many of my clients be polygraphed, but I have not had to be polygraphed. Some agencies will require that, certainly for employment. Most of the intel agencies, some of the law enforcement agencies. But those are usually for very compartmented access, as well as a weeding-out device for employment purposes, quite frankly. But I have volunteered many times, especially to the DIA, the Defense Intelligence Agency, where I knew the polygraph leadership there, and I'm like hey, I'll volunteer. I'll be your guinea pig for your new polygraphers who are being trained. Let me go at them. But they never took me up on that.

Andrew Hammond: Help me understand it. So the security clearance you get on a case-by-case basis, or do you get it for a pre-assigned period of time?

Mark Zaid: Yes, no that's a great question, because this is something that is very much in the gray area. So security clearances are 1, created by executive order. And then by internal regulations to gain access. And the reason to have access to classified information is for the national security interests of the United States. And it is, as talked about in the executive order, to provide or perform an authorized function on behalf on the United States. As an outside lawyer, representing a federal employee or contractor, I'm not really doing that, right? I'm not performing an authorized function of the U.S. Obviously, many would view me as an adversary to the United States. I'm representing the interests of the individual in order to perform whatever the task is that is required. But there is a need in order to provide that individual legal representation to have a certain degree of access. And the regulations regarding for example, security clearances, talk about how the person it entitled to a lawyer at their own cost. But that means again, that that lawyer may need to have a security clearance to either know what the underlying allegations are, although typically most security clearance cases do not involve classified information. But there certainly can be. But more likely, as I've described, their employment would require it. Everything about a security clearance, essentially you need three things. You need to fill out and sign the proper paperwork. There needs to be a background investigation and a favorable determination of your trustworthiness. And there has to be a need to know the information. That's where the government uses this as a weapon against those of us on the outside as lawyers, because they will say, well you have no need to know the information. So even when I have been processed, determined to be trustworthy, signed the proper non-disclosure secrecy agreements, that whatever agency I'm involved with will say, well we don't think you have a need to know that information. And it is very much when secrecy and classification is weaponized, actually, against their own employees to prevent the outside lawyer to properly represent. So in essence, I have -- like right now, I am eligible. I have an active top secret clearance with SEI-sensitive compartmented information eligibility. I'm one of the few private lawyers who do, especially who has never been in the U.S. government. A lot of people who were in the government, their clearance is still active. You know, they go out into private practice, but their clearance eligibility is still intact, or they're doing contract work or things like that. But it is determined for the most part on a case-by-case basis. It wouldn't be like colleagues, one works for DoD, one works for the FBI, and they run into each other at the Pentagon: Hey, Andrew, how you doing? What are you up to lately? You've got to make a need-to-know decision right then and there. What's my security clearance? What's your clearance? What eligibility do I have? Can you share what you're working on with me? And that's a proper need-to-know determination. Whereas with me, clients can't just come to me and say, do you have a security clearance, and I go yes, I do. Okay, let me tell you the following -- wait, wait. No, don't. You can't tell me until either we're authorized by your agency or we go through an inspector general's office, or we go over to the Hill, and the Congressional Intelligence Oversight committees, to get some entity authorized in order to protect the client from not violating the law.

Andrew Hammond: Is that something that you've came across, where people are ready to tell you something? Obviously you don't want to mention any names, and you can't, but is that something you've had to do? You're like whoa, whoa, whoa. Like rein that in. Let's not go there.

Mark Zaid: Oh, I have to do it constantly.

Andrew Hammond: Really?

Mark Zaid: Where folks will tell me things honestly they shouldn't. I've had classified documents sent to me, which I'm not allowed to maintain possession of. I don't have a secure safe or anything of the sort. I've asked for it many times over the years. The government will never give it to me. It is pathetically ironic, I will say, that I would dare say that there are many more instances where I'm trying to protect the integrity of the classified information than the government is, where they're weaponizing it against me. I mean, I've had federal judges express open appreciation and thanks in court, public, open court, to me as to how I acted in protecting the information and taking steps to go out of the way to do that, where the government was actually not doing that. And that's where I see where the system has really broken down. But a lot of people just don't understand the aspect of what need-to-know is, or the fact of oh, you have a clearance. That means, you know, everything can be shared. And you know, after 30 years of practicing in this area, I'm very cognizant and sensitive to the need to protect the information, just as a matter of course. Especially because if something goes wrong, the slightest little thing, the government can use that against me or my client. And obviously I want to avoid that.

Andrew Hammond: I want to try to get an understanding of the overview, the anatomy of the law, and how it intersects with intelligence, but you mentioned polygraph. So would someone come to you and say I went through the vetting process to get my security clearance, everything went swimmingly, but for some reason I failed polygraph, and this is why I haven't got my clearance, and I think the polygraph is BS. Please help me out. Is that something that you've done or would do?

Mark Zaid: Oh, routinely.

Andrew Hammond: Routinely?

Mark Zaid: That's like a weekly email.

Andrew Hammond: Really? Wow.

Mark Zaid: From someone, especially FBI.

Andrew Hammond: Really? Why the FBI?

Mark Zaid: That's a good question. I'm not sure I necessarily know why versus other agencies, but the FBI has a very aggressive polygraph program for pre-employment. And it really has, since Robert Hanssen, who had never taken a polygraph with the FBI, because it wasn't a requirement at the time, when he joined back in the late '60s. And then when Ames was exposed, Aldrich Ames at the CIA, was exposed in 1994, Louis Freeh, the director of the FBI, imported a new poly program at the FBI, but it only applied to new hires. So literally, I remember having one case where this guy came to me. He had retired from the FBI as an agent, for like 25 years. And then he tried to go back as a contractor, was now required to take a polygraph. And they never say "fail." "Fail outside of acceptable parameters" was the language at the time. Now they don't even say anything. They just say you didn't successfully complete the background investigation or the personnel processing. And so they rescind their conditional job offer. But they accused him of selling and buying drugs. And he's like what? When? When I was an FBI agent is when I was doing that? I mean, look, it's not a truth-telling device. It is a device that mechanically determines whether or not you physiologically respond. What's your blood pressure, what's your heart rate, your respiration, your galvanic sweat response. The statistic are much different with respect to a specific use incident. Is this the knife you used to kill your wife, versus you know, have you ever disclosed classified information to an unauthorized third party? What we call a screening test. Where they're on a fishing expedition. They have no idea. The skill and use of a polygraph, which there is utility, is the skill of the examiner as an interrogator. I mean, I had cases where the folks were law enforcement, and they would tell me stories of how they would hook criminals up to photocopy machines and ask them a question. You know, did you rob the bank? And the person would say no, and they'd hit the print button and there'd obviously be a piece of paper already in there. It would come out, You Lied! And they would show it to them. Criminals are stupid. So you know, they'd show them to that, and they would go okay, yes, well I was there, but I didn't actually do it. But it is a tool that is used by the agencies to weed people out, quite frankly. I mean, they're all inundate with applications. So this is an opportunity to say hey, you didn't do your two-mile run in less than 15 minutes. So you're not qualified. Ah, you didn't successfully complete your polygraph. You're not qualified. It has rarely actually identified a foreign spy. There are arguments one can make. Alger James actually physiologically responded on his polygraph as to contacts with foreign nationals and money he had. But he explained it away, that no, no, he bought his house in cash because his wife in Columbia was very wealthy. And that's where he got money, from her family. Which they never bothered to check up and verify, because it wasn't true. He was getting the money from the Soviet Union. But other than that, you can probably count on one hand the number of actual spies who were tripped up by a polygraph. Ana Montes, who was recently released from prison after spying for Cuba for the last 25 years -- she was the top Cuba expert at then Defense Intelligence Agency -- she successfully made it through a number of polygraphs. So pathological liars and spies do very well on polygraphs.

Andrew Hammond: So I mean, this begs the question, and this could easily be an entire episode in and of itself, like, why keep using the polygraph if you're getting a weekly email, like, questioning its veracity?

Mark Zaid: Primarily because people admit to the dumbest things. The problem is now everyone in this room knows polygraph doesn't work, so you guys won't fall for it, if you ever have to take one. But the average person who applies for a job in the U.S. government, either as a contractor or civil servant, their knowledge of the polygraph is from pop culture. So they saw Meet The Parents and saw how the polygraph was used against Ben Stiller. You know, they've watched Law and Order, where they talked about the polygraph in the context of criminal cases. Or Wonder Woman, which ironically is very much the history of the polygraph, because one of the modern fathers of the polygraph, William Marston, who really popularized it in the '20s and '30s, also created the character Wonder Woman under a pseudonym Charles Moulton for DC Comics in the early '40s. And that's why her magic lasso requires people to tell the truth. It's a polygraph device. It's amazing, because people think it works. When they are being questioned, and the polygrapher says to them, you are lying to me about your drug use, what have you got to say? The person says well, I said four times? I'm not sure. Maybe it was eight. Or I've actually had people come to me and tell me, I've never used drugs. The polygrapher said I was lying about it. They said I wouldn't be able to get through this exam if I didn't tell them that I used drugs. So I told them I used drugs, and I've never used drugs. So you need to fix this. And I'm like, you want me to tell the U.S. government you lied to them, which is a felony, in order to get a job at the U.S. government where they need to deem you trustworthy? Do you hear the irony or inconsistency in that argument? But literally that is what I have. So it is all about securing admissions. I remember I testified before the Senate Judiciary Committee back in 2001 about the Hanssen case, about polygraphs. And Robert Mueller was the director of the FBI at the time. And he put in a letter that talked about how they caught all these people -- they caught this one guy who had embezzled $40,000 from his employer. The employers didn't even know the money was missing, but he told the FBI polygrapher that. So that is why polygraphs work. Alright, I get it. You're right. That's a good thing. That's also -- maybe that's a bad thing. How far did this guy get in your process, and these are the type of people that you're hiring? Because he had a conditional job offer, you know, Mr. Mueller. But it's those type of admissions that make the polygraph have utility. I have no issue with the government using the polygraph. What I want is proper due process if someone has an issue with it. The Defense Department is one of the few agencies that has an internal rule that says mere physiological responses, so meaning you are lying -- I'm using air quotes -- that by itself can't be the basis of an employment action. There has to be some sort of admission or other evidence. But most agencies don't have that. [ Printer and typewriter sound effects ]

Andrew Hammond: I know that you cannot talk about, you know, someone comes to you who's undercover, they're an operations officer in the CIA, but are there people that -- whose stories are out there, who are in the public domain, who you can tell our listeners? Like give them an example of the things that you've done? Couple of cases you've worked on, just to give them a flavor of what you do?

Mark Zaid: Sure. Some of the cases at times do become high-profile predominantly because that is a weapon that we can use, as long as it's obviously not classified information. Because I can't reveal that, because I would be prosecuted or lose my clearance or both. But to the extent we can use unclassified information to tell a story, we will do that in the press, because that will put public pressure on a particular agency. It might gain interest over with the House or the Senate as well. So for example, one of the pre-publication review cases I had 20 or so years ago was this individual who had been the intel chief at Los Alamos National Laboratory, where -- under the Energy Department that does nuclear weapons. And he wrote a book, a manuscript, about China's nuclear weapons program. He had gone over to China 10 times on authorized trips. Some were authorized when he was an employee or a contractor through the Energy Department. Others were when he was -- through academia. I think it was through Stanford University. And he was given access to China's -- some of China's underground testing facilities with the Chinese government and amongst others. And he wrote about it. But I remember him telling me -- he's unfortunately deceased now -- that more Americans had walked on the moon than seen what he had seen inside of China with China's nuclear weapons program. Five-hundred page manuscript. The Defense Department classified every single word. And I remember going to the Defense Department and saying, guys, that's just ridiculous. Absolutely ridiculous. I can understand some of it's going to be classified, but the entire manuscript is not going to be classified. And we ended up litigating it over a period of -- oh gosh, six, seven years, because it went up and down through the court system. And ultimately I got 90% of it declassified. I had The Washington Post do a front-page story on this that absolutely helped. In fact, that was at the very beginning. That helped get the book from can't be revealed at all to, you know, 50, 60, 70% declassified magically. Right? And in fact, this was one of the instances where you learn how the process doesn't really work. I remember somebody coming to me who worked at DIA, who I knew, telling me they knew about -- they had seen what this was inside, and did I not realize how classified this information was? I was doing a disservice by having it revealed. And I had to explain to them that what they didn't understand was it was highly classified for them, because they saw it as part of their work. But the guy who wrote it wasn't doing anything for the U.S. government. He was literally an American tourist so to speak in China, working on an academic matter, and he just happened to share the information with the U.S. government. The U.S. government classified it, but he -- you know, he had nothing to do with it. So there were two different things that were at issue here. And it's sort of like two different perspectives, depending on, right, which direction you're looking. That's one we of course, we represented the IC whistleblower during the first Trump impeachment, which we're not concerned about the impeachment aspect. That was political. But what we were concerned was, a whistleblower came to us, completely classified information. And we had to make sure that the whistleblower properly revealed the information to oversight authorities within the U.S government. And how best to communicate that with the U.S. Inspector General for the intelligence community with the oversight committees on the Hill. And then the president of the United States declassified almost all of the information. So that gave us an ability to talk about it. But then also to kind of withdraw. Because our job had already been done. We got the information to where it needed to be. And then our job was to frankly protect the identity of the whistleblower and ensure there was no retaliation against them inside their agency, which to our knowledge there never was.

Andrew Hammond: You mentioned the weaponization of intelligence and over-classification and so forth. So I want to come back to them, but just for you and your job, so someone reaches out to you, I have this issue, polygraph, depublication, you name it, what is it you're using to leverage their case? So for example, imagine you're the crowbar. What is it you're putting the crowbar on top of to leverage on your case? I'm assuming the First Amendment at some point, but what else exists at that point where you're leveraging executive orders, legislation? Help our listeners understand how you do what you do.

Mark Zaid: Sure. There are a variety of ways, and this is particularly comes into play with respect to representing national security whistleblowers. So for example, Ed Snowden, if he had come to me, there are things we could have tried. I would never promise success, and it very well may have failed. But there are things we could have tired lawfully to bring to light what his concerns were in a narrow way. Whereas at least then, if those had failed, he could have made a decisions, an informed decision of alright, I'm going to reveal this classified information. Obviously, I as the lawyer would never be involved with that, can't be involved, and I wouldn't be. But at least, he could have said, I tried everything. Whereas he tried basically nothing at all. He had a little bit of communication with the ISA IG, but he never revealed what he was concerned about. I mean, he revealed those communications, and you can read them and go, this is ridiculous. This is not an effort. But there are steps we can take. We can use the Freedom of Information Act at times. We can certainly use the First Amendment with pre-publication review. I'll often have a whistleblower create a document that reveals what their concerns are, and we put that through pre-pub review, because then I can sue in federal court on it to challenge the classification. I had a case years ago, where still the clients are -- as far as I know, they're still covert. They were at least then. So it was John Doe versus CIA. And it had to do with war crimes allegations in Afghanistan. And some classified investigative report that I had never seen. I had just been told of it. But that was saying I think my client had committed war crimes. And we weren't getting any due process to challenge this accusation. And I sued. And in fact, I sued as another tactic to claim an unreasonable delay under what's called the Administrative Procedures Act in Title 5, 702 thereafter for the geeks out there. And say that the IG was taking too much time and not giving him an opportunity to respond. And the purpose was to shut the investigation down. And The Washington Post did a story so people can Google it and find my name, and war crimes, CIA, Inspector General. But you know, there was very little -- I had to submit my compliant, my lawsuit complaint, for review. Because I had access to classified information to make sure there was nothing classified in the lawsuit complaint. That got published. And then it ended up shutting down the investigation. It didn't ultimately enable me to say anything more unfortunately about the case. In some ways, what I try to do is somewhat akin to a term called gray mail. People may know that term a little bit more now with respect to President Trump's prosecution down in the middle district of Florida with Mar-a-Lago and the classified documents, because they might have heard of what's called the classified information Procedures Act, CEPA DIPA. That statute was created in 1980 to combat gray mail, this notion of in criminal cases where the example I always use, someone hijacks a plane to Cuba, gets caught, and then says I did this because the CIA told me to. I'm working for the CIA, and this was a government-sanctioned operation to embarrass the Cuban government or something. So I can't be prosecuted. And if only I had access to classified information as part of discovery, and the obligations the government has to disclose exculpatory information, I could have my defense. And that would be gray mail, because either the government would have to reveal the information or dismiss the charges. So this statute was created to minimize and eliminate this notion of gray mail. President Trump is trying that right now, by pushing -- and there's nothing wrong with that. This is a tactic in any of these espionage act cases, trying to push for greater access to the classified information. Even though realistically, it's almost irrelevant to anything he's been charged with, which is what the judge will have to determine. It's a relevancy determination. So in some ways, I will use gray mail to try and secure a different type of victory. You know, don't fire my client. Get my client compensation. Give him back his security clearance. Let him retire, resign, whatever it might be. But you know, obviously I can't cross a line. I won't cross a line.

Andrew Hammond: Wow. IN just a few terms I want to back up on there, Mark. Cold you just give our listeners a couple of sentences on these? So an IG, an inspector general, give our listeners an idea of what that is, and what it entails.

Mark Zaid: Sure. The inspector general system was created in the late 1970s. Pretty much most agencies have one. It had existed in some form prior to that, but they -- were called different things. But by statute, Congress created the Inspector General Act I think in 1978, to create internal oversight. I mean, this is supposed to be a neutral, objective individual. sometimes confirmed by Congress, not always. And you are supped to be able to be able to bring claims of waste, fraud, abuse, illegal activity, whistleblowing activity to them. They'll also conduct audits of activities. You know, they'll check to see is the spending being done right. These are the individuals who will do investigations in time card fraud. you know, is someone working the amount of hours they're supposed to work. It can be some really mundane things. It could be some highly sensitive, illegality of CIA operations, NSA operations. You know, warrant list surveillance. You know, things like that that they would weigh in on. And they're not supposed to be fired except for cause, because it's not supposed to be political in any way. And they're supposed to be independent from whoever is in the leadership of that agency. There are IGs who are better than others, like anything. I mean, they're human when it comes down to it. But they are supposed to be an independent body where federal employees and others can go to render complaints about improper behavior inside an agency.

Andrew Hammond: It's sort of like an umpire or go to?

Mark Zaid: Yes, I mean they are supposed to call balls and strikes. And they're not supposed to care what team wins at the end of the day.

Andrew Hammond: And the Espionage Act, could you just tell our listeners a little bit more about that, 1917, so that's an old one.

Mark Zaid: Yes. So this was a World War One-created statute that at the time had broad First Amendment applications. it for one thing applies to national defense information. Not classified information, but it is basically one and the same. We didn't use the term at the time when the act was created by Congress. And it would, you know, penalize obviously giving national defense information to foreign enemies, foreign countries, but also the mishandling of national defense information, and it talks about, you know, cryptology and photographs and I don't know, balloons might even be mentioned in there somewhere. Because this is an old statute. But the initial version of it was so broad that the Wilson administration, Woodrow Wilson's administration, could prosecute people who were critical of -- I don't remember the exact wording, but it essentially was critical of anything that could harm the national security interest of the United States and its allies. Again, we're in the midst of World War One. There was literally a documentary filmmaker who was prosecuted for doing a film on the American Revolution, because it made the British look bad [laughs]. Because that was our enemy obviously. And that was our ally in World War One. And the guy was actually prosecuted. I think he was sentenced to 10 years in prison. He didn't serve anything near that term. The statute was amended within a couple of years. And all of those First Amendment provisions were stripped out of it. And it was next amended during the Korean conflict in like, 1950, and it hasn't been touched since. It's been intact the way it is for almost 75 years. And so that's what I was saying. It still doesn't define classified information. It always talks about national defense information. Doesn't talk about emails. Doesn't talk about, you know, photo -- I think it might say photostats or whatever the heck they were using back in the day. But it still works. And in fact, I would never want anybody to -- I don't want Congress to modify it because 1, I don't trust Congress not to screw it up. And it's used so infrequently when it really comes down to it, that most of it is settled law. Congress redoes it. Like, people will complain, why is this person being prosecuted under the Espionage Act. They didn't commit espionage! All they did is they revealed illegal activities of the U.S. government. Manning, Snowden, Assange, you name it. Well, first of all, they don't get to make that decision.That's not theirs, and there again, there is a mechanism they could have pursued. But more importantly, yes, you're right. They didn't commit espionage. They're not being prosecuted for espionage. That's a separate section of the Espionage Act. That's 18 USC 94 if I remember correctly, where Alger James and Robert Hanssen were prosecuted for giving secrets to the Soviet Union and the Russian. They're being prosecuted under 18 USC 798, which is dealing with other types of mishandling and unauthorized possession or unauthorized dissemination, but not to enemies. Just to the media, et cetera. So yes. They can rename the statute. Maybe they can split it up. But not change the text, because if they change the text, that means the next time someone's prosecuted under it, they can challenge that text. And it's just going got take years to get that sorted out, and maybe somebody who should be penalized and imprisoned, you know, is freed because of a congressional error in statutory language. So just leave it the way it is. But you know, it is used predominantly nowadays for either actual spying. There was a Navy sailor who is being court-martialed right now for giving classified information to I think the Chinese, if I remember. It was literally in the news from when we're recording this. So in February. Or for mishandling, like the allegation against President Trump. It's not espionage, but that's the statute that's used.

Andrew Hammond: And is the espionage the one that was used in the case of the Rosenbergs or the atomic spies? Like under what law were they executed? Was that the Espionage Act? Was that high treason as we call it back home? What's going on there?

Mark Zaid: Yes, so it was definitely Espionage Act. I mean, obviously there's a lot of statutes that could also come into play beyond the Espionage Act.

Andrew Hammond: When you say statute, you just mean a law?

Mark Zaid: Yes. A law passed by Congress. So not an executive order.

Andrew Hammond: Okay, okay.

Mark Zaid: Issued by the president. Which I don't think there's anything that allows somebody to be persecuted that I can think of. You know, treason, there have been people prosecuted for treason. People throw the word around too easily. It is the only crime that is in the Constitution. But it has been interpreted to require very specific attributes, predominantly being that we are at war with whomever the enemy is. So even in 1953, when the Rosenbergs were executed, we were not at war with the Soviet Union. There was no declaration of war. We were in a cold war, obviously, but cold war doesn't count. We're talking about actual hot war, where you know, Congress has declared war on the enemy. So that's why, you know, people who were -- I'm trying to think if anyone was actually convicted of treason in World War Two, the Germans probably. There have been some military members prosecuted for treason over the decades. Very, very, very few. But yes, the Rosenbergs for sure were convicted under the Espionage Act, and both executed. Of course, there's a great exhibit here in the Spy Museum about the Rosenbergs, including interviews with one of their sons, Michael, about information. And it's phenomenal to see. I just happened to see it the other day again. And watching, the notion that, you know, they believed -- they were little kids at the time, two brothers, two sons, that their parents were innocent. And then the Venona documents in -- I guess in the 1990s if I remember correctly, and it basically revealed, and even the family now acknowledges that at least the dad was absolutely spying for the Soviets. Still questions about Ethel, the wife, the mother, whether she was an actual spy versus that she knew what her husband was doing. And so she probably shouldn't have been executed. It probably would have been better if she had just been imprisoned. But you know, obviously the -- trying to remember if Eisenhower was yet in office, it was still Truman. I guess it might have been Eisenhower. I'm not sure. I forget what month in '53 they were executed.

Andrew Hammond: I can't remember the month off the top of my head.

Mark Zaid: So whichever it was, we're in the throes of the beginning of the Cold War for almost five years, and they obviously wanted to send a message to the Soviet Union. So she was executed. [ Printer and typewriter sound effects ]

Andrew Hammond: And just before we move on from this section of our conversations, FOIA, the elevator version of FOIA.

Mark Zaid: Sure.

Andrew Hammond: When did it come out and why, and what does it do?

Mark Zaid: So the Freedom of Information Act, we were one of the first countries to have such a statute. now many countries have emulated us and adopted it some better than we have. I think the Albanians FOIA law, because I've lectured to Albanian delegations is better than ours. Finally, the Brits have a FOIA law. It only took centuries for them to actually get one in the last, I want to say 20 years or so. So it was enacted in 1966. A kind of interesting factoid, you know, many people listening to this podcast probably know who Donald Rumsfeld was. That's the Secretary of Defense in the first Bush and second Bush administrations. And especially during the Iraq-Afghanistan wars and think of him in a negative way as a result of that. But as a fairly young congressman, he was one of the instrumental people pushing for FOIA and government transparency in 1966. And it's designed to reveal what the Y.S. government is up to. It's a Title 5, 5 USC 552, little paragraph a, subparagraph a. And it allows anyone and everyone to file a request for an agency record. the only ones who can't file are fugitives and some foreign adversaries. I'm trying to think how it was phrased. It's a fairly new provision, where they didn't want foreign spies actually trying to get access. But you submit a request for an agency record. So that means it doesn't apply to the White House, because that's not an agency. So your normal -- you know, your FBI your CIA, your State Department. And unless it meets one or more of nine exemptions set forth in the statue: national security, privacy, law enforcement record, another statue that might prevent it, like Grand Jury records is prevented by separate statute, oil well, banking information, or these little-known provisions, then the record has to be disclosed. And it's so important-- it's not as useful as it used to be, because unfortunately agencies are overwhelmed. They don't have the resources, the manpower. The delays are significant. It was designed to help reporters gain access to information for obvious reasons. And those are some of the smallest number of requesters, because it just takes so friggin' long to get access, unless you sue. And even when we sue, it takes so long. But you know, you can get access to some amazing information through FOIA to really reveal things. And one of the latest, most important amendments after 25 years, the deliberative process privilege is no longer allowed to be invoked. Meaning draft documents. And 25 years sounds like such a long time. I mean, I came here, I was barely over 25. So 25 sounds like a long time. Now 30 years later that I've been here, 25 years doesn't sound like a long time. And it's not. Because if you think back 25 years, we're in 2024, that's 1999. I mean, that's the Clinton administration. There's tons of people who worked in the Clinton administration who are still in government today, and their draft comments are available under FOIA.

Andrew Hammond: And you mentioned the weaponization of intelligence classification, declassification. Just as we're coming towards the end of the interview, could you just tell our listeners a little bit more about that. What do you? What do you mean, or can you give us an example?

Mark Zaid: So our current classification system basically originated in the Roosevelt administration. I mean we've had secrecy since the beginning.

Andrew Hammond: FDR?

Mark Zaid: FDR. Yes. Not Teddy. Franklin Delano Roosevelt sorry. We've had secrecy of course back to the founding of our country. The Continental Congress had secret proceedings. George Washington conducts spy operations. Obviously, the great exhibit here inside the Spy Museum about George Washington and spying. I mean, we talk about domestic surveillance in the modern time. I mean, Washington was intercepting mail and going through people's mail that was being mailed back to England by Loyalists here in the United Staes or the Continental -- states at the time, or Continental colonies. But the current framework of secret, top secret information and the terminology is basically through executive orders beginning in 1940s. Most administrations, when it would politically change Democrat-Republican, Republican to Democrat, would issue a new executive order. Actually Donald Trump was the first president whose administration was a different political party who did not issue a new executive order. So right now, our classification executive order is from 2009 from the Obama administration. But it hasn't changed that much since President Clinton's order in 1995. Before that was Ronald Reagan's in 1981 to I guess '82 I think when it went into effect. And you know, this will set a hierarchy, because it's the executive branch. The president of the United States who has the authority for classification. And it is given to derivative classifiers, or declassifies, meaning it can be delegated. Obviously the president of the united States is not the one going through every document going classified, not classified, classified, not classified. No. It gets delegated to the CIA, to the director. Then it gets delegated to countless people inside -- I mean there's thousands and thousands of people who are classifiers or declassifies -- original classifiers, original declassifiers. In fact, one notion bringing it into current framework with President Trump and this prosecution, at least one of the documents, and there were a couple as I recall -- that he's being prosecuted over mishandling of, pertains to what's called FRD, former restricted data. FRD or RD, restricted that pertains to nuclear weapons, nuclear secrecy. That's under the Atomic Energy Act of 1954. That statute, enacted by Congress actually gives authority for classification and declassification to the Secretary of Energy or their designee. And actually I think it wasn't -- the Energy Department didn't exist then. I think that came into the Carter administration in like, 1978. It was whatever the predecessor was, back in the day. But nowadays, the Secretary of Energy or their designee has the authority over FRD and RD, not the president of the United States. So even if the argument that Donald Trump thought in his mind I declassify everything that is in my possession, he actually couldn't declassify the couple of documents that have FRD information. Interesting factoid point if that case ever goes to trial. But so, this executive order sets the process. And then there are declassification guides or classification guides, kind of both, at many different agencies. Most of these are classified because it gives instruction inside an agency as to what is and is not classified. And how to apply the process through it. But we will routinely see senior government officials at cabinet levels, you know, secretaries, deputy secretaries, who will come before Congress and testify that as much of last least 50% or more classified information is over-classified. That it doesn't need -- shouldn't have been classified at first, doesn't need to remain classified now. Your predecessor is one of my clients, Mark Stout. We have a FOIA lawsuit against the CIA with other academics for studies in intelligence, which is, you know, the inside, the internal CIA essentially magazine, publication, internal academic publication for documents going back 40, 50, 60, 70 years, of talking about internal CIA history trying to get it declassified, and we've gotten a lot of information declassified. It's in the weeds, academic stuff. Old history. But it's fascinating and it's very complicate at times for these agencies to go back and figure out what should or should not still be classified as.

Andrew Hammond: It's interesting when you mentioned the Clinton Administration there, I always think of that strange case of Sandy Berger, the national security advisor trying to sneak documents out in his pants.

Mark Zaid: Yes. HE stuck them in his socks. He goes to the National Archives down on Constitution Avenue and literally -- he was going through some of the stuff -- I think it was -- I'm trying to remember which investigation he was looking at, maybe with -- not Whitewater, or something, but one of the official designations. He was like, the designee to go look at the files. And I don't know why, but yes. He stuffed some in his socks, and I think his pants. And then they saw him do it, and he ran out of the Archives. And he's like, running down the street, and apparently there was construction going on. I'm not sure if it was where the Newseum now one of my academic institutions that I teach at, Johns Hopkins, building now. And he like, threw them over the fence or something. But yes. There was a good example of mishandling classified information. I think he was charged under the Espionage Act, and probably also theft. And as I recall got fined, like, $50,00. He probably got probation. He didn't have any jail time.

Andrew Hammond: And the final quest, is this whole system kind of ironed itself out? Have the rules been established? Did the old parties know how the game goes? Yes, how would you describe the relationship between people like you on the outside and the people on the inside?

Mark Zaid: Sure. I will say the relationship has evolved.

Andrew Hammond: Okay.

Mark Zaid: Over the years, for sure.

Andrew Hammond: Is that a euphemism?

Mark Zaid: I would say it's evolved for the good.

Andrew Hammond: Okay. Okay.

Mark Zaid: I have a much better relationship in general with the agencies, no matter who's in power. It doesn't make a difference, Republican or Democrat than I did when I was younger. Now some of that is because, you know, here it was, there was a 27-year-old kid, lawyer, coming at them, who had never been in the government before. And I'm dealing with these lawyers who are my parents' age, and have been the government for 35 years, you know? That's just a -- you can paint that picture in almost an, right, genre or career or world field of how that's going to loo. Now having done this for so long, I'm older than a lot of the people who are inside the agencies who I'm dealing with. And I'm an own quantity. So I'd like to think I've earned some level of respect. And again, as we were talking about it, I really will strive to protect the information. I really don't want to go anywhere near it. I may push the envelope at time, but I don't cross that line. And you know, I definitely have a much better relationships -- and look, clients of mine I successfully represented 20 years ago, they're now senior people, you know, in the U.S. government. That obviously helps too. You know, there's more likely I'm going to now somebody who works in the White House now, or who is a -- you know, a deputy secretary of whatever, or the general counsel in such-and-- such agency. good chance that I know them. I'm their peer. Maybe I'm older than them. So that has definitely helped. I've seen that relationships change. I will say a lot of things are somewhat solidified in what the understandings are of how to act, how not to; or what works, what doesn't. But I will still, 30 years into it, I will come up with cases, where I'm like hmm, I haven't seen that before. I haven't tried that before. I mean, it's pretty rare in security clearance cases that I've seen -- that I haven't seen a fact pattern that comes to me. But there are times where an issue arises in the national security world, and it is novel. And I'm educating the judge at least on what I think what it should be, based on my own experiences and now the government doesn't have the experience that I have, or the memory, institutionally at times. And that makes part of what I do so interesting that I still love doing it. I still love working every day, 30 years later, because there's still something new. And as much as I fight for declassification and transparency, I will at times also see information and learn of events where I go, oh I get it. Yes. That cannot be known. That's incredible, what we did. That's pretty wild. Now ultimately most of that stuff ultimately does come out. You know, you can just walk around the Spy Museum and see, you know, so many -- Project Azorian, which was the Glomar Explorer back in the '70s to lift the Soviet nuclear submarine. I had a client who was on that ship. Helped get their book pre-pub reviewed, you know? That operation got revealed contemporaneously because something leaked to reporters. But it wasn't declassified for years and years and years. So there's a lot of things that will then come up. And there's still enough information for us as lawyers and historian to just deal with this stuff for the rest of our lives.

Andrew Hammond: So you're an elder statesman now, Mark.

Mark Zaid: That is pathetically so that I am an elder statesman. [ Laughter ]

Andrew Hammond: Well, thanks ever so much for your time. This has been a very enlightening podcast, and I learned a lot, and thanks for your time

Mark Zaid: Oh, it's my pleasure, thank you. Erin Dietrick: Thanks for listening to this episode of "SpyCast." Please follow us on Apple, Spotify, or wherever you get your podcasts. If you have feedback you can reach us by email at spycast@spymuseum.org or on X at intlspycast. Coming up in next week's show.

Unidentified Person: And then the question is, what happens to the character of James Bond? Does it die with its creator and author, or is there a way to continue?

Erin Dietrick: If you go to our page, thecyberwire.com/podcasts/ spycast, you can find links to further resources, detailed show notes, and full transcripts. I'm Erin Dietrick, and your host is Dr. Andrew Hammond. The rest of the team involved in the show is Mike Mincey, Memphis Vaughn the third, Emily Coletta, and Emily Rees, Afua Anokwa, Ariel Samuel, Elliott Peltzman, Tré Hester, and Jen Eiben. This show is brought to you from the home of the world's preeminent collection of intelligence- and espionage-related artifacts, the International Spy Museum.