Daniel Larsen[*]

[Full text of this Article in PDF is available at this link]

I.   Introduction

The Trump Administration’s 2019 indictment of Julian Assange[1] under the Espionage Act of 1917[2] set off a wave of alarm across the press.[3] A decade earlier, the Obama Administration had launched what was called a “war on leakers”[4] as it became the first administration in history to regularly deploy the Espionage Act against sources who passed classified information to journalists.[5] The Trump Administration became the second.[6] These leak prosecutions have intensified longstanding scholarly fears that the eventual targets of Espionage Act prosecutions could be journalists themselves.[7]

The fearsomeness of the Espionage Act’s draconian penalties arises from the sheer breadth of the statute’s potential application. The Act provides no limits on who can be charged and it protects all information “connected with the national defense.”[8] This all-important term goes undefined in the legislation[9] and many assume it may encompass “anything rationally or conceivably tied to national security.”[10] Faced with this statute of seemingly immense scope, some legal scholars have sought to contain its reach by raising constitutional objections.[11] Others also have pleaded for Congress to revise the law, without success,[12] and for prosecutors and judges to exercise restraint in applying it.[13]

This Article upsets current understandings of the Espionage Act of 1917 by challenging a key, long-engrained assumption about the statute itself. The Espionage Act is not the highly punitive behemoth that shrouds enormous swathes of the government in secrecy, as is presently imagined. The term “national defense” does not capaciously expand to cover any government secret a prosecutor might deem worth protecting; rather, “national defense” actually has a highly specific and coherent meaning—one that is dramatically narrower than anyone has realized.

A seminal 1973 Columbia Law Review article by Harold Edgar and Benno C. Schmidt, Jr firmly entrenched present assumptions about the enormous breadth of the Espionage Act.[14] That highly influential article, still held to be the “definitive academic survey” of the espionage statutes[15] and cited in key court decisions,[16] concluded that the term “national defense” is “extremely far reaching” and “comprehends most properly classified information.”[17] The authors drew this inference largely from an absence of evidence: they puzzled over the text of the Act and its judicial precedents, neither of which provided them much assistance.[18] They delved into the legislative history, but this inquiry too failed to shed any light on the subject,[19] leading to the conclusion that ”national defense” must be “without principled limitations.”[20] Their conclusions have gone unquestioned for nearly a half-century.[21]

Edgar and Schmidt, however, were gravely mistaken. What the two scholars failed to realize is that in the early twentieth century, the term “national defense” actually invoked a widely understood concept of the era —one with a clear construction and reasonably clear boundaries.[22] Understanding this historical concept solves the puzzles that Edgar and Schmidt struggled to decipher. The text of the Espionage Act actually contains unmistakable indications of how “national defense” should be interpreted.[23] The main Supreme Court precedent on the Act, Gorin v. United States,[24] which the two scholars read to require a highly expansive interpretation of “national defense,”[25] actually mandates a dramatically narrower one.[26] Understanding this concept also helps us to notice related statutes that provide clear guidance as to how “national defense” should be interpreted—including especially the Council of National Defense Act of 1916, which still remains in force.[27] Understanding this concept also renders the legislative history of the Espionage Act, explored so extensively and unsuccessfully by Edgar and Schmidt,[28] both easier to comprehend and largely unnecessary as an interpretative tool.

These difficulties in interpreting the meaning of “national defense” arise from the 1940s. That decade, an entirely new concept, “national security,” supplanted “national defense” as the main way of thinking about and discussing the United States’ international vulnerabilities.[29] Broadly encompassing diplomatic, military, and intelligence matters, “national security” was widely adopted after World War II precisely because it conceptualized American international vulnerability in an expansive way.[30] The concept that it replaced, “national defense,” represented a narrower mode of thinking about the United States’ place in the world, and was associated almost exclusively with military affairs.[31] As “national security” achieved ascendancy, the once clear construction of the concept of “national defense”  became lost.[32] In applying the Espionage Act, the two terms increasingly became conflated, and today they are wrongly assumed to be synonymous.[33] In fact, the historical understandings of the two concepts were radically different.

This research lies at the intersection of the fields of law and history. Understanding the laws of the past can be assisted by understanding the ideas of the past, and in this latter area, scholars of history can provide a unique perspective for their legal counterparts. Historians of U.S. foreign policy have become increasingly interested in the intellectual history of the idea of “national security” in American history, and of its predecessor concept, “national defense.” Applying that intellectual history to the Espionage Act leads to a startlingly different understanding of the statute compared with that in the existing legal scholarship and recent legal applications.

Where Edgar and Schmidt’s traditional legal approach failed to attach any coherent limits to the term “national defense,”[34] a broader, more historically informed approach readily succeeds in doing so. As the House floor manager of the Espionage Act bill argued in 1917, national defense’s “meaning is pretty well understood in the minds of the public.”[35] This Article reconstructs how that understanding was lost and what it was that the public then understood. A broad historical overview shows how the concept of “national defense” began to disappear around the mid-twentieth century.[36] An in-depth examination of the sources of the early twentieth century allows us to reconstruct the meaning and boundaries that “national defense” then invoked.[37] This historical examination allows us to view the text of the Espionage Act and Gorin with new eyes, and to confirm a much narrower understanding of the Act.[38] This narrower understanding raises grave doubts about the propriety many of the recent and current prosecutions under the Act, as well as serious due process questions.[39] The Espionage Act not only originally was, but again ought to be, a far less fearsome weapon than anyone has realized.

[*] College Lecturer in History (fixed-term) at Trinity College, University of Cambridge. Previously University Lecturer in International Relations (fixed-term) at the University of Cambridge, and Junior Research Fellow at Trinity College, University of Cambridge. PhD 2013, University of Cambridge. I am very grateful to Luke Cavanagh for his detailed comments and research assistance on this article, and to Collin Paschall for his very helpful feedback. I would like to thank the editors of the Harvard National Security Journal for their outstanding and very careful work on this article.

[1] Superseding Indictment, United States v. Assange, No. 1:18-cr-111 (E.D. Va. May 23, 2019).

[2] 18 U.S.C. §§ 793–94 (2012).

[3] See, e.g., Brian Barrett, The Latest Julian Assange Indictment is an Assault on Press Freedom, Wired (May 23, 2019), https://www.wired.com/story/julian-assange-espionage-act-threaten-press-freedom [https://perma.cc/97U7-Z5QJ]; Julian Borger, Indicting a Journalist? What the New Charges against Julian Assange Mean for Free Speech, Guardian (May 23, 2019), https://www.theguardian.com/media/2019/may/23/julian-assange-indicted-what-charges-mean-for-free-speech [https://perma.cc/V5WE-L5NL]; Massimo Calabresi & W.J. Hennigan, The Danger in Prosecuting Julian Assange for Espionage, Time (May 24, 2019), https://time.com/5595669/julian-assange-espionage-act [https://perma.cc/RUM6-Y2FG]; Eric Havian, Espionage Act Should Exempt Journalists—Whether Assange Is a ‘Real’ Reporter or Not, Hill (May 28, 2019), https://thehill.com/opinion/cybersecurity/445783-espionage-act-should-exempt-journalists-whether-assange-is-real; Mathew Ingram, The Case Against Julian Assange Is a Clear Threat to Journalism, Colum. Journalism Rev. (April 18, 2019), https://www.cjr.org/analysis/assange-threat-journalism.php [https://perma.cc/JH9A-923T]; Jameel Jaffer, The Espionage Act and a Growing Threat to Press Freedom, New Yorker (June 25, 2019), https://www.newyorker.com/news/news-desk/the-espionage-act-and-a-growing-threat-to-press-freedom [https://perma.cc/BRJ2-4SDV]; Aryeh Neier, Assange May Have Committed a Crime, But the Espionage Act Is the Wrong Law to Prosecute, Just Sec. (June 4, 2019), https://www.justsecurity.org/64395/assange-may-have-committed-a-crime-but-the-espionage-act-is-the-wrong-law-to-prosecute [https://perma.cc/X74S-76QA]; Deanna Paul, How the Indictment of Julian Assange Could Criminalize Investigative Journalism, Wash. Post (May 27, 2019), https://www.washingtonpost.com/national-security/2019/05/27/how-indictment-julian-assange-could-criminalize-investigative-journalism [https://perma.cc/MSM4-UFGS]; James Risen, The Indictment of Julian Assange Under the Espionage Act Is a Threat to the Press and the American People, Intercept (May 24, 2019), https://theintercept.com/2019/05/24/the-indictment-of-julian-assange-under-the-espionage-act-is-a-threat-to-the-press-and-the-american-people [https://perma.cc/HJV5-BS2X]; Stephen Rohde, Julian Assange, the Espionage Act of 1917, and Freedom of the Press, Am. Prospect (June 19, 2019), https://prospect.org/justice/julian-assange-espionage-act-1917-freedom-press [https://perma.cc/J32C-XARP]; Bruce Shapiro, Trump’s Charges Against Julian Assange Would Effectively Criminalize Investigative Journalism, Nation (May 31, 2019), https://www.thenation.com/article/archive/assange-wikileaks-journalism-free-press [https://perma.cc/3RSU-ZWVZ]; Jack Goldsmith, The U.S. Media Is in the Crosshairs of the New Assange Indictment, Lawfare (May 24, 2019), https://www.lawfareblog.com/us-media-crosshairs-new-assange-indictment [https://perma.cc/7NMK-4MD3].

[4] See, e.g., Timothy B. Lee, Everything You Need to Know About Obama’s War on Leakers in One FAQ, Wash. Post (May 23, 2013), https://www.washingtonpost.com/news/wonk/wp/2013/05/23/everything-you-need-to-know-about-obamas-war-on-leakers-in-one-faq [https://perma.cc/7PZF-5W5V]; Greg Price, Obama’s ‘War on Leakers’ Was More Aggressive Than Trump’s So Far, Newsweek (August 4, 2017), https://www.newsweek.com/obama-leaks-trump-sessions-646734 [https://perma.cc/U7BR-SPN5].

[5] See, e.g., Thomas C. Ellington, The Most Transparent Administration in History?: An Assessment of Official Secrecy in the Obama Administration’s First Term, 15 Pub. Integrity 133, 140-42 (2013); Aiden Warren & Alexander Dirksen, Augmenting State Secrets: Obama’s Information War, 9 Yale J. Int’l Aff. 68, 72 (2014).

[6] See, e.g., Gabe Rottman, A Typology of Federal News Media “Leak” Cases, 93 Tul. L. Rev. 1147, 1157–58 (2019).

[7] See, e.g., Harold Edgar & Benno C. Schmidt Jr., The Espionage Statutes and Publication of Defense Information, 73 Colum. L. Rev. 929 (1973); Patricia L. Bellia, WikiLeaks and the Institutional Framework for National Security Disclosures, 121 Yale L.J. 1448, passim (2012); Bruce Brown & Selina MacLaren, Holding the Presidency Accountable: A Path Forward for Journalists and Lawyers, 12 Harv. L. & Pol’y Rev. 89, 91 (2018); David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, 48 Harv. C.R.-C.L. L. Rev. 473, 502 n.178 (2013); Christopher J. Markham, Punishing the Publishing of Classified Materials: The Espionage Act and Wikileaks, 23 B.U. Pub. Int. L.J. 1, 6 (2014); Geoffrey R. Stone, WikiLeaks and the First Amendment, 64 Fed. Comm. L.J. 477, 481 (2012); Stephen I. Vladeck, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 Harv. L. & Pol’y Rev. 219, 220, 234 (2007). See also Jonathan C. Medow, The First Amendment and the Secrecy State: Snepp v. United States, 130 U. Pa. L. Rev. 775 (1982); Dorota Mokrosinska, Why Snowden and not Greenwald? On the Accountability of the Press for Unauthorized Disclosures of Classified Information, 39 L. & Phil. 203 (2020); Peter E. Quint, Toward First Amendment Limitations on the Introduction of Evidence: The Problem of United States v. Rosenberg, 86 Yale L.J. 1622 (1977); Goldsmith, supra note 3.

[8] 18 U.S.C. §§ 793-94. Other parts of these sections use the phasing “related to the national defense,” instead of “connected with the national defense.”

[9] Id.

[10] See Lindsay B. Barnes, The Changing Face of Espionage: Modern Times Call for Amending the Espionage Act, 46 McGeorge L. Rev. 511, 526 (2014).

[11] See Stone, supra note 7 at 481–89 (outlining First Amendment defenses to Espionage Act charges); but see Vladeck, supra note 7 at 227 (questioning the likely success of such defenses).

[12] Barnes, supra note 10 at 513, 521; Edgar & Schmidt, supra note 7, at 1077–79; Robert D. Epstein, Balancing National Security and Free-Speech Rights: Why Congress Should Revise the Espionage Act, 15 CommLaw Conspectus 483, 484 (2007); Mary-Rose Papandrea, The Publication of National Security Information in the Digital Age, 5 J. Nat’l Sec. L. & Pol’y 119, 128 (2011). See also Josh Zeman, Note, A Slender Reed Upon Which to Rely: Amending the Espionage Act to Protect Whistleblowers, 61 Wayne L. Rev. 149 (2015); Note, Plugging the Leak: The Case for a Legislative Resolution of the Conflict between the Demands of Secrecy and the Need for an Open Government, 71 Va. L. Rev. 801 (1985).

[13] Mailyn Fidler, First Amendment Sentence Mitigation: Beyond a Public Accountability Defense for Whistleblowers, 11 Harv. Nat’l Sec. J. 214 (2020); David J. Ryan, National Security Leaks, The Espionage Act, and Prosecutorial Discretion, 6 Homeland & Nat’l Sec. L. Rev. 59 (2018); Pamela Takefman, Curbing Overzealous Prosecution of the Espionage Act: Thomas Andrews Drake and the Case for Judicial Intervention at Sentencing, 35 Cardozo L. Rev. 897 (2013).

[14] Edgar & Schmidt, supra note 7.

[15] Vladeck, supra note 7, at 221 n.8.

[16] United States v. Morison, 844 F.2d 1057, 1066 n.15 (4th Cir. 1988); United States v. Truong Dinh Hung, 629 F.2d 908, 918–919, 926 n.18, 928 (4th Cir. 1980); United States v. Rosen, 445 F. Supp. 2d 602, 611, 616, 616 n.14, 619, 626 n.33, 639 n.54 (E.D. Va. 2006).

[17] Edgar & Schmidt, supra note 7, at 938, 973.

[18] Id. at 937–39, 945–46, 966–69, 974–85, 998–99.

[19] Id. at 939–44, 946–65, 969–74, 991–96, 1000–20, 1040–43.

[20] Id. at 974.

[21] See supra notes 7 and 12–13.

[22] See infra section IV.

[23] See infra section V.B.

[24] 312 U.S. 19 (1941).

[25] See Edgar & Schmidt, supra note 7, at 974–86.

[26] See infra section V.A.

[27] Council of National Defense Act of 1916, Pub. L. 64-242, 39 Stat. 619, 649–650 (codified at 50 U.S.C. §§ 1–5 (2012)); see infra section IV.A.

[28] See Edgar & Schmidt, supra note 7, at 939–44, 946–65, 969–74, 991–96, 1000–20, 1040–43.

[29] See Daniel Yergin, Shattered Peace: The Origins of the Cold War and the National Security State 193 (1977); Ernest R. May, National Security in American History, in Rethinking America’s Security: Beyond Cold War To New World Order 95 (Graham Allison & Gregory F. Treverton eds., 1992); Dexter Fergie, Geopolitics Turned Inwards: The Princeton Military Studies Group and the National Security Imagination, 43 Dipl. Hist. 644, 644 (2019); Daniel Larsen, Creating an American Culture of Secrecy: Cryptography in Wilson-Era Diplomacy, 44 Dipl. Hist. 102, 112 (2020) [hereinafter Larsen, Creating an American Culture]; Andrew Preston, Monsters Everywhere: A Genealogy of National Security, 38 Dipl. Hist. 477, 479-81 (2014); Emily S. Rosenberg, Commentary: The Cold War and the Discourse of National Security, 17 Dipl. Hist. 277, 277 (1993).

[30] See supra note 29.

[31] Fergie, supra note 29, at 644–49, 654, 666–70; Dexter Fergie, The Strange Career of “National Security,” Atlantic (Sept. 29, 2019) [hereinafter Fergie, The Strange Career of National Security], https://www.theatlantic.com/ideas/archive/2019/09/the-strange-career-of-national-security/598048 [https://perma.cc/KM8A-DTZR]; infra section IV.

[32] See supra note 31; infra section III.

[33] See infra section III.

[34] Edgar & Schmidt, supra note 7, at 943–86, 1011–12, 1044–45, 1076–77.

[35] 55 Cong. Rec. 1594 (1917) (statement of Rep. Edwin Webb).

[36] See infra section III.

[37] See infra section IV.

[38] See infra section V.

[39] See infra section VI.