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How the Espionage Act of 1917 Became a Law Against Whistleblowing

The Espionage Act, passed during WWI, is being used against Manning, Snowden and other whistleblowers.
Pfc. Bradley Manning as drawn at his February 23, 2012, by USMC Sgt. Shawn Sales

Yesterday's verdict in the Bradley Manning court martial was a partial victory, but mostly a resounding defeat. Again, the United States government wielded the Espionage Act, a law written to stop legit spies in the employ of foreign governments or agents, against a whistleblower working in the best interest of America.

That this law was used so successfully in the prosecution of a whistleblower is particularly troubling. It sets a dangerous precedent not just for defense employees, but intelligence agents, or anyone who comes into possession of classified documents. The US government, protecting what it believes to be its defense and intelligence interests, once again placed the whistleblower in the same legal arena as the double agent. In the future, whistleblower cases will only be easier to prosecute.


With that in mind, we should take a look at the law that streamlines the US government's prosecution of whistleblowers. Call it "A Brief History of the Espionage Act of 1917." With a clearer picture of the act's intent and evolution, perhaps we can start to ask the question of whether, after nearly 100 years, it needs some amending. If the same effort applied to fighting legislation like SOPA and PIPA or in defunding the NSA were used in changing the Espionage Act, there might yet be legal place for the whistleblower in America.


The tale of the Espionage Act really begins in the early 20th century. US legislators, essentially playing catch-up with other nations that already had anti-espionage laws, began to lobby for such a law. Technically, the US may have been enjoying a pre-WWI Pax Americana, but our military was embroiled in a war in the Philippines. After defeating Spain in the Spanish-American war, we set our sites on the Philippines, and took the country by force. At home, politicians were crafting an act entitled "An Act to prevent the disclosure of national defense secrets."

The debate culminated in the Defense Secrets Act of 1911; which, by today's standards, featured pretty lax punitive measures. Those convicted of trading in defense secrets were to be imprisoned "not more than ten years." Child's play, really. As Europe descended into the chaos of World War I, it seemed vital to some that the US government needed stronger anti-espionage laws—a wider net with more punishment.


"Whistleblowing was never considered in the Espionage Act. It was—and this point cannot be stressed enough—aimed squarely at individuals who would deliver national security secrets to foreign governments."

In his December 7, 1915 State of the Union, President Woodrow Wilson delivered the following words:

"There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue…

I urge you to enact such laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. They are not many, but they are infinitely malignant, and the hand of our power should close over them at once. They have formed plots to destroy property, they have entered into conspiracies against the neutrality of the Government, they have sought to pry into every confidential transaction of the Government in order to serve interests alien to our own. It is possible to deal with these things very effectually. I need not suggest the terms in which they may be dealt with."


Two years later, after much negotiation, amendments added and others dropped, President Wilson got his baby: the Espionage Act of 1917. Arriving two months after the US declared war on Germany, the Espionage Act built upon the Defense Secrets Act of 1911, with much of that law's language carrying over into the new law. It was, like now, a document built on a healthy dose of national security paranoia and hysteria.

It wasn't just limited to foreign double agents, but, along with the Sedition Act, became a means of politically harassing anarchists, socialists, and other political dissidents. Famously, Eugene V. Debs was prosecuted and convicted under the Sedition Act for criticizing the Espionage Act. He ultimately appealed his case to the Supreme Court. And though he lost, his prison term was commuted when the Sedition Act was repealed in 1921.

Whistleblowing was never considered in the Espionage Act. It was—and this point cannot be stressed enough—aimed squarely at individuals who would deliver national security secrets to foreign governments.

The utility of whistleblowing was formally acknowledged in 1863 when President Abraham Lincoln signed the False Claims Act into law, which would "aid in the effort to root out fraud against the government . . . (and) to encourage private individuals who are aware of fraud being perpetrated against the Government to bring such information forward.” Unfortunately, there was no consideration of the defense or intelligence whistleblower in the False Claims Act, or in the decades following it.


Espionage Act Cases

Fast forward several decades. During World War II, a little known intelligence leak takes place. An analyst at the OSS (Office of Strategic Services, the proto-CIA), Kenneth Wells, reads a copy of Amerasia, a journal on Far Eastern affairs edited and written by several active and former communists. Wells notices that an article in the journal reads eerily like one of his OSS reports.

In short order, a congressional investigation is launched into the matter. As it turns out, two individuals in the State Department, a journalist, and a lieutenant in the Department of Naval Intelligence, handed over documents to two Amerasia editors. All six individuals were arrested. Two pleaded guilty to lesser charges, while the rest of the charges were dropped. While the content may not have had the import of, say, the Manning leaks, it was a case of several individuals working toward transparency.

During the Red Scare, the Espionage Act became a useful tool in prosecuting and deporting communists. By 1950, the Espionage Act was amended through the McCarran Internal Security Act. Section 793(e) essentially made it illegal to possess the intelligence; the intent to deliver documents and harm the US was irrelevant.

But the defense and intelligence whistleblower truly presents itself in the form of Daniel Ellsberg and Anthony Russo, two RAND Corporation analysts. Together they leaked what are now known as the Pentagon Papers to the New York Times and Washington Post. For the first time, the US government had to contend with the reality that not everyone who leaked information was a spy. The Department of Justice, however, made no distinction between a whistleblower and a spy, charging Ellsberg and Russo with violating the Espionage Act of 1917, amongst other things.


Ultimately, the case against Ellsberg and Russo was dismissed. During the trial, it was revealed that the government had illegally obtained evidence in the case, amongst other misconduct. If this hadn't happened, there is a good possibility that Ellsberg and Russo would have been convicted of violating the Espionage Act, as well as other laws.

In 1971, in the case The New Times Co. vs. United States, the Supreme Court ruled against the government's request to silence the press in the publication of the Pentagon Papers. This was a major victory, too, but perhaps the last time the courts ruled in favor of the publishing of whistleblower leaks.

After the Ellsberg-Russo and New York Times cases, Harold Edgar and Benno C. Schmidt, Jr. published an article in the Columbia Law Review entitled "The Espionage Statutes and Publication of Defense Information." In it, they argued that the law was "vague." The article is quite long and heavily notated with case law and other citations, so it's best to quote Edgar and Schmidt's conclusion:

"Quite different issues are posed by revelations of defense secrets by government employees or ex-employees. Prohibiting employees from telling what they know at pain of criminal punishment obviously restricts the flow of information to the public and impairs the quality of public debate. Nonetheless, to say that any government employee or former employee is privileged to reveal anything he chooses at risk of sanctions no greater than dismissal accords too little weight to the need for security…


[T]he information that is protected against employee revelation should be narrower than that protected against espionage… informing the public of what the Government is doing is presumptively desirable. The hard problem is to find standards to define what limited information cannot be revealed to the public. Certainly the fact of classification should not be determinative since substantial overclassification is inevitable given the variety of inducements to official secrecy."

In the 1978 case United States v. Dedeyan, however, the 4th Circuit Court wrote in its decision that the Espionage Act wasn't broad or vague. A series of other cases in the 70s and 80s also addressed the issue of the Espionage Act's overbroad text and definitions.

In one of these cases, United States v. Morison, the 4th Circut Court affirmed the conviction that Morison was guilty of simply leaking surveillance photographs of a Soviet shipbuilding project. Morison, unlike Ellsberg, wasn't interested in taking the US government to task. Instead, he was intent on showing the American people what the Soviets were up to so as to trigger a popular call for more defense dollars.

"America has been debating whether the Espionage Act is overbroad and vague for almost 100 years now. Isn't it time to revisit the law, especially with the rise of the whistleblower?"

In the 90s and much of the 2000s, the Espionage Act was used to prosecute various spies. It wasn't until around 2010, two years into Obama's first term, that the DOJ used it in its prosecution of various whistleblowers. In total, the Justice Department under Obama has charged seven individuals with violating the act—Edward Snowden being the latest addition. Bradley Manning, of course, was convicted of violating the Espionage Act in his court martial case, too.

What Next?

So, here we are exactly 40 years out from Edgar and Schmidt's paper, still ducking their critique of the Espionage Act (and others) when it comes to whistleblowers' leaking of classified defense and intelligence documents and actions. In fact, America has been debating whether the Espionage Act is overbroad and vague for almost 100 years now. Isn't it time to revisit the law, especially with the rise of the whistleblower?

Remember, the Espionage Act of 1917 is at bottom a law passed during WWI, anti-German hysteria. It is a document out of sync with reality. More and more people, whatever their political ideology, desire a more transparent government. Instead, they get more secrecy. And when whistleblowers try to pry open the vault of secrets, a witchhunt ensues. Unfortunately, as you can see above, the courts aren't interested in limiting the Espionage Act. If anything, they are allowing the executive branch to expand its boundaries. Where does it end?

With the highly popular and effective internet campaigns against SOPA, PIPA, CISPA, and even the multi-pronged effort to defund the NSA surveillance program, which failed by seven votes last week, it seems possible that a similar effort to amend the Espionage Act could gain steam. Right now, this doesn't even seem to be a point of debate. No one is calling for it. With the very public persecution and prosecution of whistleblowers, this needs to become a new front in the fight for transparency.