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Why Spies Are Judged By Wartime Laws – Analysis

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By Andrei Soldatov

Twenty-five years, that was the prison sentence the prosecutor demanded for Foreign Intelligence (SVR) colonel Alexander Poteyev, charged with treason and revealing the identities of Russian illegal spies to the American secret services.

Poteyev now lives in the United States and he doesn’t need anyone’s protection or sympathy, but his case demonstrates how inadequate modern laws on sentencing state crimes are.

First, if applied, this sentence places Poteyev in the same category as Gordiyevsky, Rezun, and the others who defected during the Cold War. However, not even the FSB counterintelligence would agree that defecting in 1979 and 2010 are the comparable offences. In addition, the principle of setting the punishment term is in itself concerning.

Penkovsky
Penkovsky

In March 2010, the North Caucasus regional military court passed sentence on two officers in the Russian Army for spying for Georgia on the eve of the 2008 conflict. Officers Khvichi Imerlishvili and Marlen Bogdanov were found guilty and given 13 and 15 years respectively: in passing information to the Georgian side they put the lives of Russian soldiers in danger during active combat. Poteyev’s crime was of a different order. He revealed the identities of our spies, but he did not put their lives or health in danger. He simply ruined their careers (and now they may even see it differently – they have gone on to get good positions in major corporations, and then there is the Chapman case). Russia is not at war with the United States, nor does it intend to be. The arguments in this case seem to be built not on the severity of the real damage inflicted, but a simple choice made my the man in charge – the more important the country in which the traitor worked – the longer the sentence. Clearly this approach has little real basis in law.

Nonetheless, this is something intuitively understood by people in the country, as is handing out long prison terms for crimes like this: the turncoat spies should spend decades behind bars for putting national security and national interests in danger. Incidentally, it has long been like this, and we have grown used to it. This approach was developed within a very particular historical period.

When the First World War started, many countries were in the grips of spy-fever. On the eve of war, the British War Office declared there were 75,000 active German agents in the country, of them 37 people turned out to have a genuine connection with the German intelligence services.

In the United States German was banned from schools in 14 states, and they stopped performing German operas. There was a consequent tightening of the law, as well. In 1911 the United Kingdom saw The Official Secrets Act 1911, under which those accused of espionage were forced to prove their innocence, while the United States passed The Espionage Act 1917, which included provisions banning the press from publishing any criticism of the government’s war efforts.

It is worth recalling that all these harsh measures were taken during preparations for a massive military conflict, or during the conflict itself. In Soviet Russia, war – class war – was considered a permanent process, and espionage was covered by the 1st section of article 58 of the criminal code, in the 1926 version. That read as follows: Betraying the motherland, i.e. actions committed by citizens of the USSR that damage the military might of the USSR, its state sovereignty or which relate to its territory, including: espionage, handing over military or state secrets, defecting to the enemy, fleeing or crossing the border.

These were laws passed during emergencies, that defined spies as among the most dangerous criminals, and therefore subject to very severe punishment. Three years before Mata Hari was shot in France, the French court gave the exposed spies just 4 years behind bars. During the First World War, which was the first conflict in which people were killed on a massive, industrial, scale, or in the USSR’s purges of the 1930s, viewing a state crime in this way makes sense.

Perhaps the time has finally come to reconsider the approach taken to this, and similar offences, and to revisit the stereotypes that have accrued to them.

It would be worth to remind patriots in the secret services, that it is only during wartime that the interests of the society and the interests of the state, or particular government agencies, fully coincide and the handing over of secrets can lead to lives being lost (take the Battle of Britain for example, where leaks from the RAF could have cost thousands of innocent British lives). The intelligence services stretched this argument when they tried to apply it during the period of the Cold war, using the threat of nuclear conflict as an incentive. However today it finds no justification in reality.

Incidentally, the laws introduced then remain in operation: there is every likelihood that Bradley Manning will be tried for leaking information to Wikileaks under the Espionage Act 1917, while there was an attempt to try former British spy Richard Tomlinson, who had a falling out with his former masters, under the Official Secrets Act, albeit in the revised 1989 version.

The Russian criminal code retains the concept of treachery, betraying the motherland, which has become the state understanding, and which remains highly emotive. It is difficult not to agree with the opinions voiced by the lawyer Yuri Schmidt, when he said that the words betraying and motherland have no place in documents of law.

However these emotive terms allow the state to act more toughly against the accused than would be permissible if in the case of a crime against an individual.

It would be strange for a Russian citizen to find themselves as moved by the plight of the Ministry of Regional Development as he would by the suffering of those close to them. Similarly, he cannot and should not equate his interests with the interests of the SVR, whose agents were kicked out of a foreign country as a result of its own personnel mistake, when failed to reveal the identity of the traitor. In addition, it is not entirely clear why Russian society has to take on trust (this is after all a closed court) the fact that this SVR failure was indeed a blow to the national interest.

Incidentally, this is exactly what the state is trying to convince us to believe. The twenty-five year sentence that the judge is requesting be applied for Poteyev the defector, is a message for the general public (it is difficult to see it as anything else, since Poteyev stands only the slimmest chance of actually serving prison time in Russia) attesting to the fact that this traitor and defector damaged the national interests, and on a scale comparable to that of massive terrorist attacks.

It is also a signal that espionage as a crime against the state is punished and will be punished more severely than murder as a crime against the person.

Published in Ezhednevny Zhurnal, June 23, 2011

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Agentura

Agentura.Ru is an Russian web-site founded in 2000 as internet-community of journalists monitor and write about Russian, American, British, and other Western security and intelligence agencies. Editor of Agentura.Ru is Andrei Soldatov, deputy editor - Irina Borogan.

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