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. People have lost their lives as a result of abuses and incompetence made possible by secrecy. The nation has started wars on the basis of policies begun in secret. Secretive politics have led, often many years later, to blowback. The 9/11 attacks, for instance, can be seen as a consequence of secrecy—the clandestine funding of Afghan mujahideen forces in the 1980s; the failure to share intelligence on the threat posed by al Qaeda—as much as a cause of it.

Ironically, the current secrecy regime, while very effective in blunting democratic oversight, has not been all that effective at securing secrets. If Washington wants to restore Americans’ faith in their government—and actually protect its secrets—it needs to make the national security state less secretive.

Chelsea Manning leaves the U.S. District Court in Alexandria, Virginia, on March 5, 2019. Jahi Chikwendiu/The Washington Post via Getty Images

It would have been just as easy to sell those secrets to a rival power. From 2011 to 2013, a petty officer in the supply corps of a U.S. Navy base in Japan was walking into a secure room on the USS Blue Ridge, printing out the schedules of upcoming ship movements, and walking off the boat to give them to a Singapore-based firm that supplied navy ships in the Indian and Pacific oceans. The movement of vessels is the kind of operational detail that could pose a grave risk to national security. Thankfully, this was a low-level case of political corruption. Detailed knowledge about shipping schedules, and what the U.S. was paying its rivals, helped the firm win millions of extra dollars from the U.S. taxpayer. But all the firm had to do to get the secrets was give the officer about $1,000 per month, some free nights in luxury hotels, and a handful of consumer electronics (an iPad, a Wii, a digital camera).

The more secrets a state tries to keep, the harder it is to actually secure them. The sheer size of the secretive state means that more than 4 million Americans need security clearances to do their work. In the 1990s, the job of managing those clearances was privatized, and the firms that are responsible are inevitably cutting corners to try to get through the backlog and meet their required quotas. This is security theater, producing profit for the contractors more than any genuine peace of mind.

Meanwhile, efforts to compensate for increasingly frequent leakages are causing problems within the security branches. From 2013 to 2016, the head of naval intelligence was not able to read, see, or hear any classified information. His clearance had been suspended when his name surfaced during a corruption investigation, and although he was ultimately never charged, the case remained open for years, and he remained in his position throughout. Every time he entered the room of a colleague, they had to secure all classified material.

The whole song and dance about secrecy is an expensive production, costly both in simple budgetary terms and in its broader political consequences. Too much information is being kept secret, including information that should, by rights, be public. It leaks all the time, mostly to serve the needs of those in power; the textbook case is the disclosure of classified information about weapons of mass destruction in the run-up to the war in Iraq. Yet rare acts of disclosure that are intended to inform the public are prosecuted harshly, and the Espionage Act provides a powerful cudgel to shape the flow of information in the polity.

It is past time to reform the system. 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

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. But the past 90 years of complaints about secrecy have provided a well-stocked pantry of reform ideas. Putting them together, we can begin to imagine what a new secrecy regime might look like.

The most basic starting point is an omnibus information bill that will consolidate and coordinate the various moving pieces of the law. At present, the structure of the laws is shaped by history. The Espionage Act, in all of its vagueness, came first. Then came patches to deal with what were seen as the act’s inadequacies: the classification system (a series of executive orders that established rules for stamping information as secret); prepublication review (a wide-ranging system in which both current and former national security and intelligence employees need pre-approval before publishing material related to their work); and the Intelligence Identities Protection Act (a 1982 law that makes it illegal to reveal the identities of covert agents).

Then came reform measures intending to make that secretive state more transparent: the Freedom of Information Act (FOIA) and whistle-blowing laws, which, respectively, provided citizens a right to petition for government information and protected some government employees’ rights to share knowledge of misconduct and abuse within the state.

Because the secrecy laws came first, the reform measures have largely deferred to them. The whistle-blowing laws and the FOIA exempt classified information. At present, the right of the public to know what its government is doing is not actually being balanced against the need for the state to keep some things secret. It is being sacrificed to the presumption of secrecy.

Read More

The Spycraft Revolution

Changes in technology, politics, and business are all transforming espionage. Intelligence agencies must adapt—or risk irrelevance.

Feature

|

Edward Lucas

China Has Been Waging a Decades-Long, All-Out Spy War

While the West was distracted, the Chinese government began an intelligence assault that never stopped.

Essay

|

Calder Walton

Let’s Stop Pretending Spying Is a Big Deal

In great-power competition there is no such thing as minding one’s own business.

Analysis

|

Howard W. French

An omnibus public-information law could consider all of these things at once, building in checks and balances that would better protect the public’s interest. The precise form of the law would be a matter for democratic debate. But history suggests that any effective law would need to do two things.

First, it would need to prevent the routine over-classification of information. The obvious solution is to reform the executive orders guiding the classification regime. The current system asks classifiers to stamp as secret any potential risks to national security. A new statute should require a clearer articulation of the need for classification stamps in any given case and require classifiers to weigh that need for secrecy against the harms posed by a lack of transparency.

However nicely drawn the standards, the only way to ensure that they will be effective is to enforce them. In 1951, Sen. William Benton and the American Civil Liberties Union proposed creating a “people’s advocate” or “anti-censor” who could audit and police classification decisions. It is still a good idea and should be enacted. The Information Security Oversight Office, established in the 1970s to oversee the classification system, should be transformed into an Office of Public Knowledge, with powers to audit classification decisions and impose sanctions. Individuals who repeatedly classify incorrectly would see that reflected in evaluations of their work performance. Agency-wide failures could be punished by extracting the costs incurred by over-classification from the agency’s budget. Reform could be incentivized by allowing agencies to redirect money saved on classification to other needs.

The second area for reform is the Espionage Act itself. Its murky, confusing provisions should be revised to clearly distinguish between the crime of espionage and the crime of improperly disclosing classified information. While the press and public should be exempt from the latter, government employees and contractors should be liable for both negligent and willful disclosures of secrets. If over-classification is kept in check, the government needs to be able to protect the small class of properly secret information. But there should be an important exception: If the leaker discloses information that informs the public about a matter of importance, they should not be found guilty of violating the public-information law.

Legal scholar Yochai Benkler has outlined one model for such a public-interest defense that is both sensible and workable. It would require the leaker to prove three things: (1) that they had a reasonable belief that their leak discloses a substantial violation of law or a substantial systemic error; (2) that they took efforts to avoid causing imminent, specific harms from disclosure that outweigh the benefits of the disclosure; and (3) that they communicated their disclosures to a channel likely to result in actual exposure to the public—that they went to a journalist, say, rather than tipped off an acquaintance.

Beyond the public-interest defense, it would also help to vary the penalties for leaking depending on the severity of the disclosure. One of the quirks of the current secrecy laws is that the level of classification is irrelevant. A lot of bureaucratic effort is put into distinguishing these levels and working out who can access information that will “harm” or “gravely harm” the United States. It is absurd that the same penalties apply to leaking both. A more nuanced and precise criminal law would provide an important safety valve and check on abuse while also allowing for more fine-grained prosecutions of genuine leaks.

Obviously, these two sets of reforms would not resolve, once and for all, the democratic dilemmas posed by secrecy. But much of the current tension is caused by the swollen bloat of the classification system and the imprecise criminal laws used to enforce it. Creating mechanisms to ensure that improperly or unnecessarily classified information cannot be kept secret will make it much easier to enforce prohibitions against disclosing a much smaller class of properly classified information—and thus begin to repair the country’s deeply flawed secrecy regime.

From the book State of Silence: The Espionage Act and the Rise of America’s Secrecy Regime by Sam Lebovic Copyright © 2023 by Sam Lebovic. Reprinted by permission of Basic Books, an imprint of Perseus Books, LLC, a subsidiary of Hachette Book Group, Inc., New York, NY. All rights reserved.