From Spies to Leakers: The History of the Espionage Act
Jan 4, 2024
auto_awesome
The podcast explores the history and constitutional legacy of the Espionage Act of 1917. Topics include the Act's origins, expansion to prosecute dissidents, complexities and limitations, classification system in the US, use against media sources, Trump administration's record in prosecuting leakers, and proposals for considering public interest and First Amendment problems.
01:04:23
AI Summary
AI Chapters
Episode notes
auto_awesome
Podcast summary created with Snipd AI
Quick takeaways
The Espionage Act of 1917 was initially passed to prosecute spies and keep information secret during World War I, but later expanded to target socialists critical of the war, leading to concerns about First Amendment freedoms.
The expansion of classification rules under President Truman in 1951 created a government-wide classification system, raising concerns about government power, press freedom, and the balance between security and liberty.
The application of the Espionage Act in the 21st century has shifted from prosecuting traditional spies to targeting leakers and media sources, raising concerns about press rights, public interest defense, and the boundaries between press freedom and prosecution.
Deep dives
Origins and History of the Espionage Act of 1917
The podcast explores the origins and history of the Espionage Act of 1917. It discusses how the act was passed in response to concerns about German spies infiltrating the US during World War I and the fear of important secrets going to the enemy. The act initially aimed to prosecute spies and keep information secret, but later expanded to include regulations against interfering with the draft and war effort. This led to a new type of censorship during the war, targeting socialists critical of the war. The act's language, however, proved confusing and broad, raising concerns about its application and potential violations of First Amendment freedoms.
Expansion of Classification under Truman and its Consequences
The podcast explores the expansion of classification rules under President Truman in 1951, creating a government-wide classification system that remains in place today. This executive order established a permanent peacetime classification system, which was primarily a product of presidential order rather than involvement from Congress. The order allowed the government to define what information is secret and what isn't, leading to concerns about government power and limitations on press freedom. The expansion of classification rules was partly a response to a court case involving the prosecution of a Nazi spy who argued that even publicly available information about national defense could violate the Espionage Act. This expansion of classification raised questions about transparency, censorship, and the balance between security and liberty.
Prosecutions under the Espionage Act in the 21st Century
The podcast discusses the application of the Espionage Act in the 21st century, particularly in the context of prosecuting individuals for leaking information to the press. It highlights the shift in focus from prosecuting traditional spies to targeting leakers and media sources. The podcast mentions high-profile cases like Chelsea Manning, Edward Snowden, and Julian Assange, where the government used the Espionage Act to go after individuals who leaked classified information. The discussion raises concerns about the press's rights to publish information in the public interest and the need for a public interest defense in the Espionage Act. It also emphasizes the potential consequences of the Assange case in determining the boundaries between press freedom and prosecution.
The Evolution of the Secrecy System
The podcast episode discusses the evolution of the secrecy system in the United States, highlighting key milestones and events. In the 1960s and 1970s, classification of documents increased dramatically, leading to the rise of highly secretive branches of the government such as the CIA and NSA. The Vietnam War, which was shrouded in secrecy, became a turning point, sparking leaks and disclosures of classified information. While the infamous Pentagon Papers leak exposed the truth about the war, the resulting Supreme Court case focused more on press freedom than reforming the secrecy system. In the 1970s, limited efforts were made to address abuses and increase transparency, but a comprehensive reimagining of the system was lacking, leading to its continued growth through the following decades.
Post-9/11 Era and Prosecutions
The podcast episode delves into post-9/11 prosecutions under the Espionage Act and highlights the cases of Chelsea Manning, Edward Snowden, and Julian Assange. The Espionage Act, with its broad language and lack of clear exceptions, has been used extensively by the Obama administration, with eight prosecutions of media sources, setting a precedent of targeting whistleblowers. The Trump administration saw a continuation of such prosecutions. The need for a public interest exception and more thoughtful legal approaches to balance liberties and security is emphasized. Reforms that reimagine the Espionage Act and establish a clear framework for determining when leaks serve the public interest are proposed in order to address the shortcomings of the current system and ensure transparency.
In this episode: The Espionage Act of 1917, one of the most contentious statutes relating to the First Amendment, is back in the news following the indictment of President Donald Trump for allegedly mishandling classified documents. What is the Espionage Act and how has it been used over time? Legal scholar Heidi Kitrosser, author of Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution, and political historian Sam Lebovic, author of State of Silence: The Espionage Act and the Rise of America’s Secrecy Regime, explore the origins, history, and constitutional legacy of this World War I-era law. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. This program was streamed live on December 4, 2023.
