Why Weren’t the Russian ‘Spies’ Charged with Espionage?

Yesterday, federal prosecutors unsealed criminal complaints against 11 people who were allegedly part of a Russian spy ring. According to the prosecution, the suspects lived in the United States under false names while trying to penetrate "policy-making circles" on behalf of Russia’s SVR, the successor to the KGB specializing in foreign intelligence. The defendants were charged with "conspiracy to act as an agent of a foreign government without notifying the U.S. attorney general," an offense that carries a maximum sentence of five years in prison. Why weren’t they charged with espionage, which can often bring a life sentence or even the death penalty?

Probably because they never found out very much. U.S. law defines espionage as transmitting or attempting to transmit "any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense" to a foreign government with the intent to harm the United States or give advantage to the foreign nation. Because federal prosecutors have not charged the "illegals," as they were known because they had no official credentials, with espionage, they either never got their hands on anything — or it can’t yet be proven that they did.

With details about messages in invisible ink and buried money caches, the criminal complaint might read like a Cold War-era spy thriller, but it’s still unclear what exactly, any of the defendants are supposed to have found out. The closest thing to espionage in the charges is a meeting at a seminar between defendant Donald Howard Heathfield and a U.S. government official who "works on issues of strategic planning related to nuclear weapon development," but it doesn’t appear that Heathfield learned any classified information.

Although prosecutors might still file additional charges, the activities of these so-called spies don’t appear to be on the same level as clear-cut espionage cases like those of Robert Hanssen, the FBI agent who sold classified information to the Soviet Union and Russia over more than two decades, and Aldrich Ames, the CIA case officer whose leaks to Moscow led to the deaths of at least 10 U.S. agents in the Soviet Union. Both men are currently serving life sentences in federal prison.

Violating the Foreign Agents Registration Act (FARA), which requires that agents representing the interests of a foreign power register with the Justice Department, is a far lesser offense and one that rarely merits much media attention. Prominent FARA cases include Iraqi-American businessman Samir Vincent, who admitted to acting as an unregistered agent of Saddam Hussein’s government during the U.N. "oil-for-food" scandal, and former President Jimmy Carter’s brother Billy, who was forced to register as a foreign agent to avoid charges that he was paid $220,000 by Muammar al-Qaddafi’s government to curry favor for Libya in Washington. The scandal, and a resulting congressional investigation, came to be known as "Billygate."

Thanks to Plato Cacheris, partner at the law firm of Trout Cacheris and former attorney for Robert Hanssen and Aldrich Ames.