RECAP: “State of Silence,” 9/1 Colloquium with George Mason Prof. Sam Lebovic

There are any number of contradictions that can trace their roots back to the Espionage Act. It’s the final legal backstop propping up America’s secrecy regime, yet it’s repeatedly been at the center of the crises of legitimacy this regime has faced over time (for recent examples, see: Trump/Mar-a-Lago, Biden/Garage, Clinton/Server). In the 21st century especially, it’s been the legislative weapon of choice in the war on whistleblowers, yet, as we saw in the case of Terry Albury leaking classified documents regarding FBI surveillance practices, what the national security state says publicly sometimes directly contradicts the information they wish had remained private. And going back further in time, we see the Espionage Act summoned to sentence Julius Rosenberg to death for spying and Ethel Rosenberg to death for not spying.

As George Mason University Professor of History Sam Lebovic noted in opening his September 1 talk at the Kinder Institute, tracking how the law (and use of it) has evolved over the past hundred years might help us understand why the Espionage Act is both so controversial and so prone to uneven application. Viewed through the lens of this history of change, three main arguments rise to the surface: (1) That it’s a tremendously poorly written statute; (2) That it was not designed to be, but rather grew into being, a tool for the preservation of state secrets; (3) That the era of secrecy the Espionage Act helped usher in comes with the atmospheric costs of a deteriorating belief in government and a concurrent decline in rational public debate about policy.

For a poorly written law that’s been manipulated to serve all sorts of unsavory ends, it’s probably telling that the Espionage Act and its global variants emerged during a time of transatlantic panic about spying that was fueled far more by fiction than fact; for damning context, William Le Queux’s publication of the first spy novels was more or less simultaneous with the passage of England’s 1911 Official Secrets Act. Le Queux’s American counterpart was Alabaman Richmond Hobson, who spun his botched naval maneuverings during the Spanish-American War (see: the sinking of the Merrimac) into a post-war speaking tour that vaulted him into the national spotlight and, ultimately, the House of Representatives. There, his tales about the pervasive threat of Japanese spies prompted Congress to pass its own anti-spy law, the 1911 Defense Secrets Act, with the utmost urgency. This initial law proved insufficient to tamp down the heightened national security anxieties that came with World War I, hence the Wilson administration grafting onto the Defense Secrets Act the “safeguards” that would give us the 1917 Espionage Act.

Key components of the law’s historical trajectory can be mapped onto this ur moment. In the transition from the Defense Secrets Act to the Espionage Act, for example, we see the government’s compulsion, still very much animate, that we must be at all times taking an additional step to sure up national security. In Section 2c of the Act, which gave Wilson the authority to censor anything in newspapers that he found threatening to national security, we see a recurring tension between the government and the press. Perhaps more important still, Prof. Lebovic showed, with the removal of this clause, we see the seed of issues that would later arise as a result of the press’ concerns about its freedoms being alleviated (a free press was likely cold comfort for free speech activists of the era, who saw anti-war protestors not only jailed but also lynched in the Espionage Act’s early years, the latter atrocity leading to the government’s predictably convoluted argument that its censorship praxis simply wasn’t strong enough). In Oliver Wendell Holmes Jr.’s “fire in a crowded theatre” opinion in Schenk v. United States, we see the birth of modern free speech discourse, even if the Sedition Amendments to the Espionage Act in question here were also ultimately abolished. More than anything, though, Prof. Lebovic explained, in Sections 793 and 794 of the Espionage Act, which prevent transmission of information related to national defense to foreign governments and, more broadly, to people not entitled to receive it, we see a hole that lawyers, jurists, and bureaucrats would spend decades trying to fill, since, in fashioning this regulatory system, the Espionage Act defines neither what constitutes information related to national defense nor who is or isn’t entitled to receive said information.

The act of patching this hole in the law bears the marks of absurdist theatre. 33 members of the Duquesne Spy Ring were found guilty of espionage during World War II for leaking privileged information regarding U.S. airplane design to Volkswagen in Nazi Germany, only to be released after the war because the information wasn’t at all privileged but, instead, quite public. During the creation of the atomic bomb, the hastily formed U.S. Office of Censorship leveled the decree that it wouldn’t tell newspapers what they could or couldn’t write but only what the government didn’t want them to, leading to stories that were published on and, within hours, pulled from the AP Wire, once the censors had been consulted. And under the Atomic Energy Act of 1945, the job of training government employees in how to keep secrets was delegated to a Security Advisory Board composed of people who proved themselves utterly incapable of keeping secrets. In a solution that only created a new problem, Truman, seizing a power that Congress denied Wilson, passed Executive Order 10290 in 1951, finally answering the question of “what constitutes information related to national defense” with a simple “whatever the Executive Branch says is information related to national defense.” Not only did the subsequent invention of a classification system almost immediately give rise to the problem of reckless over-classification. There was also little to no push back from civil liberties activists regarding the boom in secret keeping, since the fine (or blurry?) line between censorship and internal classification largely left the press alone.

The United States’ secrecy problem would only grow as the Cold War dragged on, coming to a head during the Vietnam War with Daniel Ellsberg’s leaking of the Pentagon Papers. While charges against Ellsberg were ultimately thrown out, and while the Supreme Court confirmed that the New York Times and Washington Post couldn’t be prosecuted for publishing what Ellsberg leaked to them, the problems with a classification system that should’ve been vetted but wasn’t were laid bare, particularly the game theory at the heart of it: i.e., that the press was free to publish secrets so long as they could get them and that the government was free to keep secrets so long as they could punish leakers. Among other things, Prof. Lebovic argued, this arrangement creates press dependence on anonymous sources, puts enormous pressure on leakers, and, at the end of the day, oddly underscores how much doesn’t leak and how in the dark the American public is, all of which combine to stoke intrigue and conspiracy theorization to the detriment of rational debate.

With all of these issues on public display, what’s perhaps most surprising is that, even after Ellsberg and Watergate, no meaningful renovation of the Espionage Act has been undertaken. One might point to the Freedom of Information Act as a counter-argument to this claim, but FOIA didn’t challenge classification so much as it created oversight committees that thrive on proving they can keep secrets. And herein lies the ourobor-ian conundrum underlying all of this: a state-sanctioned lack of transparency becomes the primary means by which the secrecy regime not only justifies itself but also its seemingly constant push for stricter classification standards and “new ways to keep secrets,” a reflexive expression of power that can only be maintained through standards as loose as those that the Espionage Act provides.

As Prof. Lebovic noted in closing, the reforms that are needed most likely won’t occur. On one side of the ledger, the political spoils of trying and convicting whistleblowers encourage prosecutors and the national security state supporting them to hold fast to their control over information flow. And on the other side, while civil liberties activists in the press have proven adept at using the First Amendment to blunt laws that impact them, the easy détente they’ve reached with the government has seemingly discouraged any impulse to push back against the egregious excesses of the secrecy regime, under the thumb of which distrust in government continues to fester and discourse continues to corrode.