It’s time to amend the Espionage Act

One former president and two former vice presidents have hung onto classified documents at their private homes, and the National Archives is asking every former president and vice-president to scour their files in case there are more. This makes it a particularly good time for a bipartisan review of the Espionage Act, an antiquated law that is doing the U.S. as much harm as good.

Congress passed the act in 1917, a few months after the U.S. entered WWI, after President Wilson inveighed against foreign-born traitors “who have poured the poison of disloyalty into the very arteries of our national life.” Its crux is a prohibition on obtaining or disclosing information related to “national defense” if it could be used at the expense of the United States or to the advantage of any foreign nation.

Amendments to include the crime of sedition were upheld by the Supreme Court in the Schenk case, but later repealed. Its last major amendment was in 1950, during the McCarthy era, criminalizing the mere possession of that “national defense” information without any real defense or malicious intent requirement.

The act has been used for some reasonable purposes — against Soviet spies, for example — but also against many others who thought they were acting in the public interest. Among these are government leakers to the media, such as Daniel Ellsberg who leaked the Pentagon Papers, NSA whistleblower Thomas Drake, Edward Snowden, and Chelsea Manning. Major publishers protested the indictment of Wikileaks’ Julian Assange, as his conviction would create a hard precedent of wielding the act against the mainstream press.

Numerous scholars have argued the act is both underinclusive and overbroad, and thus constitutionally vague. Although “national defense” information is today assumed to mean classified information, the act predates the classification system and may be insufficiently inclusive, as not all classified information is related to the “national defense” (rather than “national security” writ large, the criterion for the classification system under Executive Order 13526.) Yet if one reads “national defense” information in the context of the statute as anything potentially useful to foreign nations and potentially disadvantageous to the U.S., that construction sweeps beyond classified information to nearly anything you can imagine.  

Take Samuel Loring Morison, who was prosecuted for sharing classified photos of Soviet navy yards with a publication with the intention to warn the defense community that the Soviets had real naval ambitions. Once a prosecutor has shown something is “national defense information,” she doesn’t need to show its disclosure caused any real harm to this country — and the defendant can’t argue that point because it’s irrelevant. That’s a real problem, especially as over-classification of information is endemic and growing worse.

There is no defense to prosecution except denying you possessed such material or transmitted it. It’s irrelevant if you thought you were acting in the interest of the U.S. or the public by disclosing wrongdoing, and you won’t be allowed to explain why you did it — your intentions don’t matter. Recent administrations have used the act to deter leaks to the press of embarrassing but arguably important information more than to prosecute spies.

The section that punishes retaining classified information by officials who once, but no longer, have authorization demands a showing of “gross negligence” — which may be reasonable when applied to presidents who have the means to hire lawyers to scour their files, but can be a trap for more low-level government employees without those resources.

Reform of the Espionage Act is no politician’s ideal cause — it sounds like going soft on spies — but it could be reframed as strengthening and restoring the Act to its original purpose: safeguarding genuine security secrets, while protecting the First Amendment. And above all, keeping this law from being used as a weapon in partisan politics.

A few simple fixes would go a long way:

• First, define what is and what is not “national defense” information with particularity, and place a burden on the government to show that any given disclosure or document actually was intended and affected national defense;
• Create a defense for the accused that the public interest in the disclosure of particular information (such as information concerning official wrongdoing) outweighs any harm done to national security, especially where the disclosure is to the media;
• Strengthen whistleblower protections in law for national security officials of the government;
• Enable defendants to argue that their disclosure or retention of documents had no effect on national defense nor was it intended to have such an effect;
• Create a clear schedule and assistance for all government employees in handing over classified documents before their departure from public service. Given how common accidental mishandling of classified information is, the law should also allow some reasonable time to correct innocent errors as a “safe harbour” from liability under the act.

The new Congress, the Department of Justice, the National Archives and the Special Counsel will all be keeping this topic in the news for the foreseeable future. It’s a good moment for Congress to step ahead of the game and show some bipartisan will to fix this deeply flawed law.

Dinah Pokempner is an expert in international law and human rights. She has served as senior legal advisor to the UN Special Rapporteur on Free Expression and as general counsel of Human Rights Watch.