An understanding of the NSA’s history is required to fully appreciate the significance of Snowden’s revelations. While the NSA was created in 1952, its existence wasn’t formally acknowledged until 1975. Its unveiling to the American public was part of a landmark Senate investigation, known as the Church Committee, into the abuses of US intelligence agencies.
Even as the NSA has become more well known, it has fiercely guarded its secrecy, aided by a tremendous weapon: the Espionage Act.
After the Church Committee’s inquiry, the Federal Communications Commission would attempt its own investigation of the NSA’s interception of US communications. Executives of communications carriers who had participated in the program refused to testify, claiming their participation in the investigation would violate the Espionage Act.
The NSA also used the Espionage Act to try to prevent the 1982 publishing of The Puzzle Palace by James Bamford. There is perhaps no greater expert on the NSA than Bamford, who between 1982 and 2008 wrote a trilogy of books on the agency. In 2014, Bamford revealed that he had secretly testified before an executive session of the Church Committee. As a naval reservist, he had worked at an NSA interception post and realized the agency was lying to the Church Committee.
When writing the Puzzle Palace, the first book on the NSA, Bamford obtained a Department of Justice (DOJ) report on NSA criminality through a Freedom of Information Act (FOIA) request. Although the report was lawfully given to Bamford by the DOJ, the NSA insisted the DOJ had erred in doing so, making Bamford’s possession of it illegal. It wanted Bamford to give the documents back or be indicted under the Espionage Act.
Its grievances got it nowhere until Ronald Reagan was elected on a platform calling for the evisceration of FOIA and the rollback of checks on the national security state. The NSA again insisted it was illegal for Bamford to possess or write about the information in question. Under an executive order of Jimmy Carter, declassified information could not be reclassified; Reagan reversed course, but the new rules could not be retroactively applied to Bamford.
Even by the standards of the Reagan era, the NSA’s desire to see Bamford prosecuted was absurd. But the Espionage Act would remain a powerful tool in silencing reporting on the NSA. At least five government insiders indicted under the Espionage Act for giving information to the media were indicted, at least in part, for sharing documents that originated (or likely originated) with the NSA.