To guard government secrets, the Justice Department has increasingly weaponized the Espionage Act of 1917 — a law that critics have condemned as “overbroad” and “vague.” The department’s 2019 decision to charge Julian Assange, the WikiLeaks founder, with violating the Espionage Act crossed a new line. On Friday, the British government ordered the extradition of Assange on this indictment, although he pledged to appeal. Many observers are expressing concerns about the future of journalism if the government is heavy-handed in applying the Espionage Act.
But originally, the secrecy provisions of the Espionage Act were not the draconian behemoth that people today imagine them to be. In 1917, there was nothing particularly broad nor vague about these provisions. A century later, however, they have become very dangerously misunderstood — and misapplied.
The great danger of these secrecy provisions hinges on a key phrase: The statute protects all information “connected with the national defense.” The act says nothing about what this phrase might mean. Despite how vague that sounds, the Supreme Court declared the law constitutional in 1941. Although the concept of “classified material” did not exist in 1917, everyone now assumes that any secret that is “classified” must be protected by the Espionage Act.
This assumption is wrong. The act has become so dangerous only because our society has entirely forgotten the concept of “the national defense.” Americans in 1917 understood the term intuitively. A few decades later, that understanding started to vanish as Americans embraced a newer, far more expansive concept: “national security.”
During World War I, a lengthy German espionage and sabotage campaign exposed the need for U.S. anti-espionage legislation. As early as December 1915, President Woodrow Wilson fulminated to Congress about the Germans who had “formed plots,” “entered into conspiracies” and “sought to pry into every confidential transaction of the Government.” The following year, German saboteurs blew up an enormous munitions cache in New York Harbor, setting off a deafening explosion that woke people across New York and New Jersey and even damaged the Statue of Liberty. Somehow only six people died.
With U.S. troops headed into harm’s way in 1917, the stakes rose. Congress took up the president’s demand for a new espionage law. A blistering debate raged over a provision to impose censorship on war news, but once this was taken out, the rest of the Espionage Act passed with little controversy, about two months after the U.S. entry into the war. Even the New York Times declared that when “more important to the enemy than to our own people,” it was “the business of the government to keep secret military facts.”