But originally, the secrecy provisions of the Espionage Act were not the draconian juggernaut that people imagine today. In 1917 there was nothing particularly broad or vague on these provisions. A century later, however, they have become very dangerously misunderstood – and misapplied.
The great danger of these secrecy provisions lies in a key phrase: The law protects all information “related to national defence”. The law says nothing about what this phrase might mean. As vague as it may seem, the Supreme Court declared the Constitution Act in 1941. Although the concept of “classified material” did not exist in 1917, everyone now assumes that any secret that is “classified” must be protected by the Espionage Act.
This assumption is wrong. The act has become so dangerous only because our society has entirely forgot the concept of “national defence”. Americans in 1917 intuitively understood this term. A few decades later, that understanding began to fade when Americans embraced a newer and much broader concept: “national security.”
During World War I, a long German campaign of espionage and sabotage revealed the need for the United States anti-espionage legislation. As early as December 1915, President Woodrow Wilson was ranting before Congress against Germans who had “formed conspiracies”, “concluded conspiracies” and “sought to interfere in all confidential government transactions”. The following year, German saboteurs blew up a massive ammunition cache in New York Harbor, triggering a deafening explosion that wake up people across New York and New Jersey and even damaged the Statue of Liberty. Somehow only six people died.
With American troops in jeopardy in 1917, the stakes have risen. Congress has accepted the president’s request for a new espionage law. A heated debate raged over a provision to impose censorship on wartime information, but once that provision was removed the rest of the Espionage Act was passed without much controversy, some two months after it entered at war with the United States. Even the New York Times declared that when “more important to the enemy than to our own people”, it was “the government’s business to keep military facts secret”.
Designed to keep military secret facts—to protect the Army and Navy as the United States began to wage a brutal war—Congress in 1917 did not need to define “national defense”, due to the consensus understanding of the term. At the beginning of the 20th century in America, the concept of national defense was omnipresent. People thought of America’s international standing in terms of “national defense.” They debated the “national defense” of the country in newspapers, magazines and in Congress. The director of the Espionage Act House floor was completely indifferent to the term: “the meaning of national defense is quite well understood in the minds of the public,” he argued.
“National defense” was understood in the narrow sense, but with a sense of elasticity in the event of war. This encompassed the army and its needs, and agriculture. Agriculture was central to defense because a war could be lost as easily by civilian starvation as by defeat on the battlefield. Then, if the military needed them to fight a war, large sectors of the US economy – including manufacturing, transportation, and communications – could become matters of national defense. But in times of peace, these military needs have diminished and these aspects have largely returned to civilian use.
diplomacy had nothing to do with “national defence” but rather belonged to a completely separate concept: “external relations”. And secrecy had been mostly unimportant in American diplomacy in the decades before Wilson’s presidency.
an observer defined the term “national defense” in 1927: “National defense means the protection of the country, principally, against external aggression, international war, and not internal disturbances for which we have police and gendarmerie forces.”
Of course, the Espionage Act was used against “internal troubles”. In 1917-1918, it became a notorious weapon of the government. But the provision used by the government was not the government secrets provision. Instead, the government abused another section of the law, which prohibited “willfully obstruct[ing] the United States Recruiting or Enlistment Service” in wartime, to punish persons who campaign for labor protections, engage in journalism, or refuse to engage in patriotic acts.
The key secrecy provisions of the Espionage Act, on the other hand, went largely unused at first. The first prosecutions of the interwar period has come with a trio of cases in the late 1930s, which involved the sharing of naval secrets with foreign countries. A case reached the Supreme Court in 1941 – the only time the court addressed the secrecy provisions of the Espionage Act. The tribunal defined the term “national defence” only briefly as “referring to military and naval establishments and related activities of national readiness”. The court didn’t give specifics because they didn’t need to: Americans still understood the concept as they did in 1917. “National Readiness” referred to the broader economic needs of the military. But the Court’s definition is not generally understood today, as the notions of “national defence” and “national preparedness” have both been forgotten.
Americans forgot about these concepts because in the mid-1940s a new idea, theorized by a Princeton professor, took the country by storm: “national security.” This professor, Edward Mead Earle, hated “national defense”. The narrow military focus of the old concept rendered it’s much too small, he thought. Thinking in terms of “defense” encouraged “to sit and wait for the enemy to be at our doorstep,” he writes.
This new idea of national security, as historian Dexter Fergie argued, “heralded a new way of imagining the world”. National security was elastic, and compared to the old concept, it was enormous. Before the emergence of this new idea, there was existedas Fergie wrote, “no concept connected so many disparate policy areas, from information and infrastructure to terrorism and trade”.
As “national security” grew in importance, the original meaning of “national defense” was lost. In the 1970s, jurists examining espionage law were already looking at “national defense” with confusion.
In the second half of the 20th century, the secrecy provisions of the Espionage Act became tool to prosecute people accused of providing government secrets to foreign countries – like Julius and Ethel Rosenberg, who were executed in 1953 after being sentenced to give top secret military information to the Soviets during World War II.
Using the law to try to punish leakers, however, was extremely rare. The first attempt came in 1973, with charges against Daniel Ellsberg for leaking the Pentagon Papers. The Case collapsed due to prosecutorial misconduct. Two other cases, both for leaking classified military information, were subsequently successful in 1988 and 2003.
But by then, people stopped remembering what “national defense” originally meant and instead increasingly treated it as synonymous with “national security.” This amalgamation reached its peak in 2006, when a district judge wrongly defined “national defense information” as information that “could threaten the national security of the United States”.
So the scope of the Espionage Act exploded. A turning point has come with the Obama administration, which has prosecuted at least eight leakers under the Espionage Act. The Trump administration has sued at least four others. Many of these prosecutions have nothing to do with military secrets. Julian Assange’s leak of US diplomatic cables certainly has nothing to do with the military. Reality Winner’s leak of an NSA document about the 2016 election had no clear military implications, nor did Terry Albury’s leak about simple law enforcement. Material. Joshua Schulte currently faces charges under the Espionage Act, even though the CIA cyber material it leak has no obvious military connection.
Understanding this older concept raises crucial questions questions fundamental fairness. The concept of “national defence” no longer exists strictly speaking. How can we have a prosecution under a statute with a dead concept at its core – a concept that defendants and jurors cannot intuitively comprehend?
The Espionage Act only became so dangerous by forgetting history. Originally, the law was a vigorous but narrow military secrecy law – not the leviathan of government secrecy that it has become.