But the secrecy regime is such a complex tangle of laws and orders and bureaucratic practices that it is hard to know where to begin.
A World War II American propaganda poster promotes the importance of secrecy to the war effort. EDWARD T. GRIGWARE ART/GALERIE BILDERWELT/GETTY IMAGES
For more than a century, lawyers have complained that the Espionage Act is a poorly drafted, deeply confusing law. At the heart of the act are two sections of the U.S. criminal code, sections 793 and 794. Section 794 criminalizes what we might think of as traditional espionage—it makes it illegal to collect information for a foreign government. Section 793, the section used to prosecute leakers today, is murkier. It contains six complicated clauses intended to protect secrets by making it illegal to gather or transfer information without authorization. But exactly what they mean, and how they are supposed to work, is very unclear.
Since the passage of the Espionage Act in 1917, the system has grown like weeds, guided by no overall vision but a century-long process of improvisation and adjustment. The risk of tinkering with one part of the regime is that it will create new problems somewhere else as the delicate ecology of the bureaucracy evolves to deal with changes. So the ideal solution would be to begin again, to think about the system as a whole and to draw up laws that try to accommodate the competing interests in a more rational way.
Thankfully, people have been calling for reforms to the espionage laws for nearly a century. In a 2006 decision in an Espionage Act case that inaugurated the new era of aggressive leak prosecutions under President George W. Bush, Judge T. S. Ellis III observed that it was remarkable that the “basic terms and structure of [the act] have remained largely unchanged since the administration of William Howard Taft.”
- A lot had changed in U.S. law and politics and foreign policy since then. “These changes,” Ellis said, “should suggest to even the most casual observer that the time is ripe for Congress to engage in a thorough review and revision of these provisions.”
That hasn’t happened. . .
The Song and Dance of American Secrecy
Espionage law hasn’t changed much since William Howard Taft—yet recent presidents have wielded it as a cudgel more than ever before.
The U.S. government has a secrecy problem. Recent scandals about improperly stored secrets—Mar-a-Lago, Hillary Clinton’s rogue server, U.S. President Joe Biden’s garage—are just the tip of the iceberg. Beneath the surface lies a vast state whose operations are shielded from public view. This poses an obvious challenge to democratic norms. Yet when government employees seek to inform the public about abuses happening in secret, they find themselves prosecuted under a century-old law originally designed to protect the nation from foreign spies: the Espionage Act.
In its eight years in power, the Obama administration brought espionage charges against eight people for disclosing information to the media—most famously, Edward Snowden and Chelsea Manning. The Trump administration brought six such charges in four years. That may not seem like much. But between 1917, when the Espionage Act was passed, and 2008, a grand total of five such cases had been brought against leakers.
This article is adapted from State of Silence: The Espionage Act and the Rise of America’s Secrecy Regime (Basic Books, 464 pp., $32.50, November 2023)
Simply counting up the charges radically understates the power of the law. The Espionage Act serves as the final backstop to the nation’s bloated secrecy regime. No one knows exactly how much information is kept secret by the government. But by any reckoning, it is a staggering amount. One 2001 estimate suggests that there are 7.5 billion pages of classified information cloistered in the U.S. government—as many pages of secrets as there are pages in all the books in the Library of Congress. By the 2010s, between 50 million and 90 million documents were newly stamped as “secret” every year. Managing them is an expensive business. In 2017, the last year in which this figure was made public, maintaining its secrets cost the United States more than $18 billion.
The secrecy laws are supposed to keep the United States safe. Yet runaway secrecy has been producing real harms for decades. There are all the familiar harms: torture and corruption and death and waste. And there are the costs to democracy itself. The cynicism about and mistrust of U.S. politics today have been bred, in no small part, by the cult of secrecy that the Espionage Act helped to construct.
It is time to acknowledge that secrecy has not, in fact, made Americans secure.
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