Justice  /  Argument

The Espionage Act is Bad for America—Even When it’s Used on Trump

A relic of WWI that helped destroy the anti-war left, it remains a threat to news outlets, political organizers, and challengers of the surveillance state.

Really, calling it the “Espionage Act” is misleading. When most people hear the word “espionage,” they think of something fairly specific—the actions of a spy who, like the infamous Benedict Arnold, intentionally hands over their country’s secrets to a hostile nation. But “espionage” in this sense has been illegal since the drafting of the U.S. Constitution. It falls squarely under the Article III provisions against giving “aid or comfort” to a national enemy, otherwise known as treason. What the Espionage Act of 1917 criminalizes is a much broader range of behavior, including:  

  • Anyone who, “having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note relating to the national defence, wilfully communicates or transmits or attempts to communicate or transmit the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it” 
  • Anyone who “shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States” during a time of war

Notice the vagueness of the language in that first clause, and the wide latitude it gives for prosecution. There’s no requirement that the information involved be classified—a distinction that wasn’t created until 1951—only that its contents relate to “the national defence” in some way. Some legal experts believe this will be the Achilles’ heel in Trump’s defense, since even if he could declassify documents “by thinking about it,” they would still contain defense information. Looking beyond Trump, though, it’s a worrying standard, because virtually any information about U.S. military policy (that the government didn’t explicitly approve for release) could be considered to fall under the Espionage Act’s purview. As Guardian journalist Trevor Timm points out, “if you read just the text of the law, it is being violated almost daily by reporters at every major paper in the country.” The Act contains no safeguards for the rights of the press to report on military matters, nor any acknowledgement that citizens in a democracy have a right to know what their leaders are doing. Instead, it amounts to a declaration that the state has absolute control over certain kinds of information, above and beyond democratic accountability.