The law, passed in a frenzy after the First World War, is a disaster. Why is it still on the books?
Rulings from the nineteen-forties continue to guide the prosecution of spies, whistle-blowers, leakers, cyber activists, and, in one case, former President Donald Trump.Illustration by Adam Maida
In March, 1940, Edmund Carl Heine, a forty-nine-year-old American automobile executive, reached an understanding with a company then known as Volkswagenwerk GmbH. Heine, who immigrated to the United States from Germany as a young man, had spent years at Ford, first in Michigan and then in its international operations in South America and Europe, landing finally in Germany. In 1935, two years after the Nazi regime came to power, Ford fired him, for reasons that are unclear. Heine next signed on with Chrysler, in Spain, but the Spanish Civil War was tough on the car business. And so he was out of a job again.
Volkswagen offered to pay Heine, who was an American citizen, to collect information on the production of airplanes in the U.S., including military planes. This was odd. Volkswagen had been founded only a few years earlier, as a Nazi Party-managed project for building a “people’s car”; it hadn’t even mass-produced that automobile yet, let alone a plane. And Heine was instructed to send the information not to its headquarters but to addresses that included a mail drop in Peru and an apartment on East Fifty-fourth Street, in Manhattan, occupied by a sometime artist’s model in her twenties named Lilly Stein, whose transportation-industry credentials were scant.
For more than a year, Heine assembled and submitted thick reports, rich in technical detail and illustrated with photographs of the latest military aircraft. Then, on June 27, 1941, Heine, Stein, and thirty-one other members of a would-be German spy ring were arrested. It turned out that the F.B.I. had been onto them for months. Heine was charged with violating both the Espionage Act of 1917 and the Foreign Agents Registration Act, or FARA, of 1938. Five days after Pearl Harbor, and after eight hours of deliberations, the jury convicted him and thirteen co-defendants. (The rest had already pleaded guilty.) He was sentenced to two years in prison for violating FARA and eighteen years for violating the Espionage Act. The F.B.I. was pleased enough with the operation to coöperate on a Hollywood film loosely based on the case, “The House on 92nd Street,” which transformed Stein into a cross-dressing mastermind and moved her uptown.
But by the time the movie came out, in 1945, Heine had filed an appeal, and his case was working its way through the courts. His argument was that he couldn’t be a spy because he hadn’t actually stolen any secrets—he was just a guy helping out a car company. He had, he conceded, acted with a degree of subterfuge. (He’d signed his reports “Heinrich,” for example.) Yet the information he gathered was what we’d now call open-source intelligence. He bought pictures of new planes from a commercial photographic service. He summarized articles in trade magazines, technical journals, and newspapers. He chatted up guides at the New York World’s Fair, where the Aviation Building featured a hangar with planes suspended from the ceiling.
Heine’s appeal landed in front of a three-judge panel, in New York, that included Learned Hand, one of the best-known jurists of the time. Heine’s lawyer was George Gordon Battle, a prominent civil-rights advocate. (G. Gordon Liddy, one of Richard Nixon’s White House “plumbers,” was named for Battle, his father’s mentor. Liddy would play an ignominious role in an Espionage Act case thirty years later: the prosecution of Daniel Ellsberg for leaking the Pentagon Papers.) Judge Hand was admired for the clarity of his writing, and it took him only a paragraph to uphold Heine’s FARA conviction: “Nobody but a simpleton could fail to detect” that his true employer was not Volkswagen but “the Reich.”
Hand was, however, troubled by the Espionage Act charge. The act, passed in a frenzy during the First World War, forbade the sharing or unauthorized retention of “information relating to the national defense” that might benefit a foreign power. But beyond giving examples of what that category might encompass—“document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, instrument, appliance”—the law didn’t say what it meant. Hand pointed out that the law could not possibly cover every kind of data that had a connection to the national defense, “for in modern war there are none which do not.” He didn’t think Congress intended to shut down all international discussion of agricultural yields, medical breakthroughs, or train schedules.
Hand concluded that espionage must involve secrets. The word “secret” didn’t appear in the law, but in a 1941 decision, Gorin v. United States, the Supreme Court had acknowledged that it would be difficult to show that someone had knowingly engaged in espionage if, say, the U.S. government itself published the information, and so there was no “occasion for secrecy.” Hand broadened that notion, finding that “whatever it was lawful to broadcast throughout the country it was lawful to send abroad.” As he saw it, no secret, no foul. Heine was soon free.
An obvious question today might be whether the information Heine collected was classified, but at the time the modern system of classification did not yet exist. Harry Truman introduced it in 1951, by means of an executive order that other Presidents—and not Congress—have refined. The obsession with labels like “Top Secret” was in part an unintended consequence of Hand’s ruling, according to a timely new book, “State of Silence: The Espionage Act and the Rise of America’s Secrecy Regime” (Basic), by the historian Sam Lebovic. If judges stipulated that national-defense information ought to be “secret,” then the government would oblige by stamping that word on every piece of paper it could.
Classification is now an overbearing companion to the Espionage Act, rather than a clarification of its limits. In the view of the executive branch, everything that is marked classified is national-defense information, or N.D.I. And yet it reserves the right to call non-classified information N.D.I., too. (It has also argued that some information, like the name of a country that hosted a C.I.A. prison, can be deemed officially secret even after it is widely known.) Donald Trump, who is facing thirty-two Espionage Act charges in a federal indictment brought in Florida, has denied all wrongdoing and defended himself by saying that while still President he declassified documents that were later found at Mar-a-Lago—something he had broad power to do. As legal commentators have pointed out, having done so would not necessarily get him off the hook: an Espionage Act conviction requires only that material be N.D.I., classified or not. That’s convenient for Jack Smith, the special counsel. But is it a good thing for the rest of us?
One peculiarity of the Espionage Act is that the Gorin and the Heine decisions—rulings from the nineteen-forties concerning a hundred-year-old law—still guide the prosecution not only of spies but of whistle-blowers, leakers, negligent bureaucrats, cyber activists, and, of course, a former President who kept documents marked “Top Secret” in his bathroom. Not that the law differentiates among those categories. Both Trump and Julian Assange, the co-founder of WikiLeaks, are currently under indictment for violating the section of the act that prohibits the unauthorized retention of N.D.I., among other charges. That section says nothing substantive about intent, and neither do several related provisions. It doesn’t matter whether someone is using N.D.I. to aid a terrorist network, expose a scandal, write a memoir, or impress fellow-gamers (as may be the case with Jack Teixeira, the airman recently indicted under the act for posting files on Discord). It doesn’t matter whether a leaker’s object is to expose discrimination. In 2018, Terry Albury, an F.B.I. agent, was sentenced on Espionage Act charges for having given journalists confidential documents that, he believed, showed that the F.B.I. engaged in racial and religious profiling. What mattered was that the Department of Justice deemed the documents national-defense information.
There’s been plenty of discussion about whether Assange is really a journalist, but the Espionage Act doesn’t care either way—there is no journalist-exception clause. Meanwhile, media outlets, including this one, violate the Espionage Act regularly. The federal government relies on leaking to function, and also forgives a measure of sloppiness in its own ranks. (The fact that classified documents ended up in Joe Biden’s garage is almost certainly less unusual than the subsequent appointment of a special counsel.) The law has always been applied selectively, which raises the question of how its targets are chosen.
By Lebovic’s tally, before 2008 there had been only five prosecutions for giving information to the press. There were eight under the Obama Administration, and another six during Trump’s single term, including that of Reality Winner, who gave the news site the Intercept a single document about alleged Russian meddling in the 2016 elections. Until now, the Justice Department has gone after journalists and publishers only for their notes, their testimony, or other materials as it pursued a leaker. Edward Snowden is the one living in exile in Moscow, not the journalists who published the information he leaked. Officials have regularly assured members of the press that the Espionage Act isn’t meant for them. But this is a pact, not a legal commitment. Lebovic thinks it’s a side deal that the press has made at the expense of its sources and the rest of the country. Assange, for whatever reason—the novelty of WikiLeaks, his personal unpleasantness, his perceived role in damaging Hillary Clinton in 2016—has been cut out of the deal. When the Trump Administration initially sought to extradite him from the U.K., it was on a computer-hacking charge related to his receipt of files from Chelsea Manning when she was a soldier in Iraq. It then added Espionage Act charges, which the Biden Administration is now pursuing. (Assange is fighting extradition.) Manning, who had been sentenced to thirty-five years in prison and served seven years before Obama commuted her term, was jailed again in 2019 and 2020, for a total of more than eleven months, for refusing to testify in the case against Assange.
Because the Espionage Act is so old and the spate of cases against leakers is so recent, one might think that its use in confrontations with the press is new—that an archaic anti-spy law has been repurposed for the information age. In fact, speech was a target from the law’s earliest days. Judge Hand was well aware of that history.
In 1917, as a forty-five-year-old district judge on the brink of promotion to the appeals court, Hand had heard a lawsuit brought by The Masses, a socialist magazine that the Postmaster General sought to prohibit from being sent through the mail. That, too, was an Espionage Act case. The Postal Service was using provisions against interfering with military enlistment or recruitment during wartime; a recent issue of The Masses contained a cartoon depicting the draft in a dark light and a poem praising antiwar anarchists. Hand ruled that the magazine was within its rights. He was overruled in a matter of months, and didn’t get the expected promotion. That incident helps explain why Hand, despite his renown and the efforts of Oliver Wendell Holmes, Jr., and others, never made it to the Supreme Court. His wife wrote to him in 1918, “It was the Masses decision which had hurt you but dear, I feel just as you do about it. You couldn’t have done differently and it was a fine thing to do.”
Hand was grappling, just as he would in the Heine case two decades later, with a law that, on its face, appeared to be unworkably broad. In his decision, he wondered if one might run afoul of the Espionage Act by praising Quakers. The legislation covers traditional spying but also actions far afield from it. For President Woodrow Wilson, Lebovic writes, the term “espionage” meant “anything that interfered with the war effort.” In practice, the new law was used to suppress socialists and labor unions, as if the Kaiser were behind every demand for fair wages. Eugene V. Debs was convicted under the Espionage Act after he gave a speech in which he told the people in the crowd that they didn’t deserve to be “cannon fodder.” He ran for President from prison, a fact that has become surprisingly relevant this election cycle.
As Adam Hochschild writes in last year’s “American Midnight” (Mariner), the era’s raids and mass arrests had a steep human cost. Hochschild’s account captures how the war-fuelled fever rose and, eventually, broke. Certain parts of the Espionage Act were repealed or revised, including particularly outrageous provisions in a 1918 amendment known as the Sedition Act, which targeted “abusive language about the form of government” in wartime. But the bulk of the original law remained.
The effect of some measures was cushioned by a series of Supreme Court rulings that drew a sharper line between political speech and criminal incitement. And some jurists—notably Holmes, a pivotal figure in the speech cases—came to regard the restrictionist excesses of the nineteen-tens and twenties with regret, even shame. But regrets have a way of fading, and the backlash was never strong enough to get the act fully overhauled.
Instead, as time went on, more secrecy laws were added: certain types of information (cryptographic ciphers, agents’ names, details about atomic weaponry—a possible problem for Trump) were further restricted, while federal employees were made liable for, say, mishandling classified documents or stealing government property. The Classified Information Procedures Act of 1980 sought to make it easier to use information deemed secret as evidence in prosecutions without revealing it in open court. Trump’s Florida case has already been delayed by CIPA disputes, including about security clearances for his lawyers.
Books about the Espionage Act are, it turns out, the wrong place to look for suspenseful spy stories. “State of Silence” is no “Operation Mincemeat.” That’s almost a point of principle: in Lebovic’s telling, spy scares have a way of being overblown or misused, which is fair enough. Still, he doesn’t disregard the existence of real espionage or the need to deal with it. It’s the Espionage Act that he views as unsalvageable. That’s a judgment shared by Ralph Engelman and Carey Shenkman, the authors of “A Century of Repression: The Espionage Act and Freedom of the Press” (Illinois), published last year. Each book argues, with some urgency, that the act should be replaced by laws that address whistle-blowing and spying separately.
Lebovic, in particular, finds it maddening that the Espionage Act—which cannot possibly mean what it says and still be constitutional—has time and again dodged its day of reckoning with the Supreme Court. He depicts the law like a jurisprudential Inspector Clouseau, eluding falling safes and strolling on to cause yet more havoc. The law’s very name has helped to protect it. In 1957, John Nickerson, an Army colonel, was indicted under the Espionage Act for giving journalists a dossier rebutting a Pentagon memorandum that undercut a ballistic-missile project. (His mistake was suggesting that the Secretary of Defense was beholden to corporate interests—embarrassing someone powerful being a time-tested way to provoke a criminal investigation.) Nickerson so feared the disgrace of being labelled a spy that he agreed to plead guilty to fifteen Army security violations in return for the espionage charge being dropped.
The act’s harsh penalties—up to ten years for each count of willfully retaining N.D.I., which can add up quickly—are also a powerful incentive for defendants to negotiate a guilty plea. Part of its allure for prosecutors is that it makes their jobs easy. More than once, though, the cases have fallen apart because of government misconduct or bungling. In 1950, the conviction of Judith Coplon, who worked in the Justice Department and, apparently, for the Soviets, was overturned because the F.B.I. had engaged in illegal wiretapping. (The chief appellate judge was Learned Hand—him again.) But one of Lebovic’s greatest frustrations is the Daniel Ellsberg case.
In 1971, the Times decided to publish the Pentagon Papers, a classified history of the Vietnam War, leaked by Ellsberg, after its general counsel argued that the Supreme Court would surely see that any definition of “national-defense information” that included the study was unconstitutionally vague. (An outside law firm disagreed, and refused to even review the Papers.) The Nixon Administration tried to stop the Times from publishing by citing the mere potential for an Espionage Act violation. What followed was a flurry of litigation and an emergency appeal to the Supreme Court, which ruled that the government had failed to overcome the Court’s “heavy presumption” against prior restraint. But the case yielded opinions by all nine Justices—an outcome that, Lebovic writes, “further muddied” the situation. Five Justices suggested that the Nixon Administration’s error was trying to prosecute the Times before it published the Papers, rather than afterward. And nothing in the ruling precluded the prosecution of Ellsberg.
That endeavor fell apart because Nixon’s “plumbers,” in addition to breaking into Ellsberg’s psychiatrist’s office, had wiretapped a defense lawyer, leading the judge to throw out the case. It is not due to any lack of respect for Ellsberg that Lebovic wishes his legal problems hadn’t been so tidily resolved. “The mistrial meant that the rickety laws of state secrecy weren’t really put to the test,” he writes.
Donald Trump, no doubt, presents a more confounding defendant for a landmark case than Ellsberg. And yet, after a hundred years of avoidance, the Espionage Act may finally receive proper scrutiny from the high court. Such a case may come amid a contested election and even a constitutional crisis. A number of rickety institutions will be under pressure this political-legal season. The charges against Trump, in four different jurisdictions, include violations of more than a dozen different laws. The fact that the Espionage Act could bring him down is no reason to cheer for it. It could happen to almost anyone.
https://www.newyorker.com/magazine/2023/12/18/state-of-silence-the-espionage-act-and-the-rise-of-americas-secrecy-regime-sam-lebovic-book-review