Joe Biden may have broken the Espionage Act. It’s so broad that you may have, too

Trevor Timm — The Guardian

The Espionage Act is incredibly broad and spares no one. Readers of this newspaper may even have violated it

With President Joe Biden now embroiled in his own classified documents controversy, partisan commentators will surely have a field day playing the tired old game of “no, you endangered national security.” Instead, I’d like to focus on the real issues: the overly broad and often-abused Espionage Act and the massive, draconian secrecy system that does far more harm than good in the United States.

This should be yet another wake up call that both the classification system and the Espionage Act need a dramatic overhaul. The question is — as more secret documents are found at a second Biden location and Trump’s special prosecutor continues to work — will anyone listen?

Now, before someone accuses me of “both side-ing” the separate Trump and Biden scandals here: no, they are not the same. Trump had mountains of secret documents he purposefully absconded with that he both refused to give back and arguably lied to authorities about. Whereas it seems Biden’s team actually alerted the authorities that the president had them in his office and is fully cooperating in their return.

But here’s the thing: that doesn’t mean Biden didn’t potentially violate the Espionage Act – at least according to some legal experts.

That’s because the Espionage Act is incredibly broad and spares no one. As I’ve explained before, even using the Espionage Act to go after Trump should not be cheered on by Democrats. Instead of actual spies, the hundred year-old law is usually abused to prosecute whistleblowers and threaten journalists. But it’s actually so broad that if you are a longtime reader of the Guardian, you’ve probably technically broken the law too!

“Whoever having unauthorized possession of, access to, or control over any document…relating to the national defense…willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it” is in violation of the statute.

The Guardian, like every other major newspaper reporting on US news, has published documents the government considers classified or “national defense information.” The Snowden files are only one example; there are likely countless others.

Thankfully the First Amendment should ultimately protect both the Guardian and its readers from prosecution. (Ironically, first the Trump administration, and now the Biden administration may be trying to change that with its unprecedented and dangerous charges against WikiLeaks founder Julian Assange.)

Regardless, such an overly broad and dangerous law should not be on the books in the first place. The reason the Justice Department is able to potentially wield it over so many people is because the secrecy system itself is irrevocably broken.

The US government has a massive overclassification problem – and that’s not just my opinion as a transparency advocate. Even the people who have been in charge of administering the secrecy system often denounce it once they leave government.

Tens or hundreds of millions of documents are classified per year. A tiny fraction will ever see the light of day, despite the fact the vast majority never should have been given the “secret” stamp in the first place. Of all the money spent on the classification system, less than half of one percent is spent on de-classification.

The system is set up so the government has every incentive to claim any information is of the utmost sensitivity because they know anyone they prosecute cannot challenge their classification decisions. And it doesn’t matter that, time and again, they have been shown to grossly exaggerate or lie about the true nature of those supposed “secrets.”

No one is ever punished for overclassifying information, yet plenty of people go to prison for disclosing information to journalists that never should have been classified to begin in. Even efforts to reform the secrecy system end up classified themselves.

Take the reporting on the Biden controversy. CNN reported that the “classified materials included some top-secret files with the ‘sensitive compartmented information’ designation, also known as SCI, which is used for highly sensitive information obtained from intelligence sources.” They cited an anonymous source (almost certainly law enforcement). Yet CNN also said that a “White House official characterized the documents as ‘fewer than a dozen,’ … none of which are ‘particularly sensitive’ and ‘not of high interest to the intelligence community.’”

So which is it? Maybe somebody’s lying. Or maybe it’s all Top Secret and also basically nothing, because the US government classifies everything.

As journalist Jeremy Scahill pointed out, political elites constantly mishandle classified documents, but never receive the severe punishment lower level whistleblowers do when they commit same or similar crimes. It’s true there is a severe double standard that has ruined the lives of so many brave whistleblowers. But maybe, just maybe, now that the classification system has ensnared each of the last two presidents, people will start coming to their senses: tear down the US secrecy system before it tears down its next victim.

  • Trevor Timm is executive director of the Freedom of the Press Foundation