While political opponents sometimes accuse each other of treason, the definition of the crime has nothing to do with politics. Rather, the crime of treason is set out in a statute known as the Espionage Act. This brief describes the provisions of the Espionage Act and gives examples of the kinds of crimes that have been prosecuted under the Espionage Act.
Additional information on classified documents can be found in our Classified Information policy brief linked in the Further Reading section.
What are the main provisions of the Espionage Act?
The Espionage Act of 1917 is a United States federal law enacted shortly after the U.S. entry into World War I. It was intended to prevent the disclosure of information that could interfere with military operations or aid the country’s enemies.
The main provisions of the Espionage Act include:
- It is illegal to obtain or disclose information related to national defense with the intent or reason to believe the information will be used to harm the United States or aid a foreign entity.
- The Act makes it a crime to spy, to aid spies, or to mishandle national defense information.
- Violations of the Espionage Act can result in heavy fines and imprisonment.
The Espionage Act, while originally aimed at countering spying and sabotage, serves to protect sensitive national defense information. This aspect is crucial in safeguarding national security and maintaining the U.S.’ strategic advantages. By criminalizing the unauthorized disclosure of such information, the Espionage Act is a deterrent against potential national security breaches.
Do you have to help a foreign government to be prosecuted under the Espionage Act?
No. Supreme Court rulings and Congressional amendments have interpreted the Espionage Act to prohibit actions beyond direct releases of government defense information to benefit foreign nations or factions. An individual can be prosecuted under the Espionage Act if they release classified information to the public or the news media if it is found that they intended or had reason to believe that the release of the information would lead to injury to the United States. Efforts to release information do not have to be successful to trigger prosecution. Proof of intent to release sensitive information is enough to be prosecuted under the Espionage Act. It is also illegal to harbor or conceal an individual who has committed or intends to commit an offense under the Espionage Act.
Who has been prosecuted under the Espionage Act?
Cases under the Espionage Act have ranged from accusations of trading/giving classified information about the US military and state of national defense to other nations to releasing classified information to the media and mishandling of classified information.
Individuals have been prosecuted under the Espionage Act for facilitating the transfer of sensitive military/ information to foreign governments. Julius and Ethel Rosenberg were both found guilty under the Espionage Act in 1951. The married couple was found guilty of conspiring to give secret information about the US efforts to develop the atomic bomb to the Soviet Union. John Walker, a former navy officer, was convicted of spying for the Soviet Union in 1985 and sentenced to 25 years in prison. He leaked classified information regarding naval warfare technologies to the USSR and attempted to recruit others to do the same.
However, other individuals have been tried under the Espionage Act for the unauthorized transfer of information to individuals or media outlets. Samuel Morison was a Naval Intelligence Analyst who leaked satellite pictures of a Soviet aircraft carrier. Morison argued that the release of the information was protected under the First Amendment. However, the Supreme Court ruled that he had violated the Espionage Act. Morison was sentenced to 2 years in prison but was pardoned in 2001.
More recently, Edward Sowden, a government employee and contractor, released classified information about government surveillance programs and was charged under the Espionage Act. Another recent high-profile violation of the Espionage Act involves a 21-year-old airman in the Massachusetts National Guard named Jack Teixiera. Teixeira is currently charged with two counts under the Espionage Act for sharing classified information in an online forum.
Additionally, government employees have also been charged for the mishandling of classified information. For example, retired General and CIA Director David Petraeus accepted a plea deal for a misdemeanor conviction and a fine for sharing classified information with a biographer. There have been more than a dozen similar cases over the last decade, many of which resulted in a prison sentence.
Historically, prosecutions under the Espionage Act have focused on the people who hold or have released classified information without permission. However, individuals or organizations that publish classified information are also subject to prosecution under the Espionage Act. The threat of prosecution has been used in the past to persuade reporters and editors to postpone the publication of some stories or to withhold certain details.
Further Reading
Policy vs Politics (2023). Policy Brief: Classified Information
Edgar, H., & Schmidt, B. (1973). The Espionage Statutes and Publication of Defense Information. 73 Colum. L. Rev. 929. https://tinyurl.com/ydpfr3wb, accessed 12/17/23.
Mulligan, S., & J. Elsea. (2023). Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information. Congressional Research Service. https://tinyurl.com/4rc9fc8z, accessed 11/27/23.
Sources
What are the main provisions of the Espionage Act?
DeWitt, P. (2016). “Clear and Present Danger”: The Legacy of the 1917 Espionage Act in the United States. Historical Reflections, 42(2), 115–133. http://www.jstor.org/stable/44631075, accessed 12/17/23.
Lippman, M. (2016). Law and Society. SAGE Publications. https://tinyurl.com/2fjjmy7h, accessed 12/17/23.
U.S. Congress. (1964) United States Code: Espionage, 50 U.S.C. §§ 31-42. Library of Congress. https://tinyurl.com/4hj5srmt, accessed 6/22/23.
Zegart, A. (2010). Spying Blind: The CIA, the FBI, and the Origins of 9/11. Princeton University Press. https://tinyurl.com/bdhunj3u, accessed 12/17/23.
Do you have to help a foreign government to be prosecuted under the Espionage Act?
Bellia, P. (2012). WikiLeaks and the Institutional Framework for National Security Disclosures. The Yale Law Journal, 121(6), 1448–1526. http://www.jstor.org/stable/41510451, accessed 12/17/23.
Hyde, C. (1918). The Espionage Act. The American Journal of International Law, 12(1), 142–146. https://tinyurl.com/afu6d8e8, accessed 12/17/23.
Papandrea, M-R. (2015). National Security Information Disclosures and the Role of Intent. William & Mary Law Review, 56. https://tinyurl.com/bdz2cmdy, accessed 12/17/23.
Kitrosser, H. (2013). Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information. Journal of National Security Law & Policy, 6, 409. https://tinyurl.com/5c2e6ycf, accessed 12/18/23.
Who has been prosecuted under the Espionage Act?
DeWitt, P. (2016). “Clear and Present Danger”: The Legacy of the 1917 Espionage Act in the United States. Historical Reflections, 42(2), 115–133. http://www.jstor.org/stable/44631075, accessed 12/17/23.
Younger, N. (2021). The case of Edward Snowden. National Whistleblower Center. https://tinyurl.com/5fw826f2, accessed 6/20/23.
Prados, B. (2014). The John Walker Spy Ring and the U.S. Navy’s Biggest Betrayal. USNI News. https://tinyurl.com/mrsebc4p, accessed 6/15/23.
Sales, N. (2015). Can Technology Prevent Leaks? Journal of National Security Law & Policy, 8(1), 73-101. https://tinyurl.com/vsfpe5mx, accessed 6/17/23.
This policy brief was researched by Policy vs Politic interns Mary Stafford and Zul Norin, drafted by Team Leader Griffin Reid, and edited by Dr. Nicholas Clark and Dr. William Bianco with the assistance of subject matter expert Professor Emily Berman.