In the 1930s some self described liberals, like Samuel Dickstein, worked on the House Special Committee on Un-American Activities to root out fascism in America. The ACLU approved. After all, we had just had the Business Plot to attack the nation and overthrow President Roosevelt. With Hitler and Mussolini on the rise, what choice did we have? The constitution is not a suicide pact.
Later the HUAC, still with Dickstein on it, became an anti-communist witch hunt. It eventually chased innocent people out of the country, like Bertolt Brecht.
The new HUAC helped build support for things like the McCarran Internal Security Act, aka the Subversive Activities Control Act of 1950 (title II of which is charmingly called the Emergency Detention Act). President Truman vetoed the whole thing, calling it a "Mockery of the Bill of Rights"; but enough Democratic senators supported it to override his veto and pass the thing. Some guy named Congressman Richard Nixon actually helped write part of this act, although I dont know which part.
One of the provisions of this act was to modify the Espionage Act of 1917. The Espionage Act (and the Sedition Act, it's main amendment) had been a useful tool of the government, overturning the weak language of the Defense Secrets Act of 1911; it hadn't even outlawed speaking against the war. A fresh faced J Edgar Hoover welcomed and used the new, improved law to round up thousands of radicals, subversives, and assorted alleged anti-americans and deport several hundred of them (including one Emma Goldman) to Russia. Now, though, in the late 40s, the Espionage Act had failed to be up to the task of dealing with Soviet infiltrators. And so, the politicians said, it had to be improved. Especially this one, tiny little subparagraph... deep down in the bowels of Title 18 of the US code, section 793. It was subparagraph (e) that caught the eye of the nation savers.
To make a new, improved 18 USC 793(e), they took the language of 793(d), poked and stirred it a little, added a word here, and changed a word there. What they wound up with is an (e) that broadened the Espionage law; they made it apply to more people, and to more situations. You'd have to be a lawyer to tell exactly how this works. Fortunately, though, Harold Edgar and Benno Schmidt explained it in a paper they wrote in 1973. They also point out, that, aside from all the legal gobbldygook, congress declared it's intention in relatively plain English during the debate over the subparagraph. Senator McCarran argued that the new language would have allowed them to nail the suspected, but never proven Alger Hiss for having the Pumpkin Papers, something the existing law apparently didn't let them do.
So they created the law to stop Soviet spies. One wonders what they would think, then, if they knew that the law would not become famous for it's use against spies. Hundreds of real spies were caught in the Cold War years, but many of them are prosecuted under different parts of the law, not (e). Instead, (e) would be against people who talk to journalists, or against people who just 'mishandle' information that the government has decided arbitrarily is 'related to the national defense'.
One of the first, if not the first case, would be against Anthony Russo and Daniel Ellsberg. 793(e) is one of the things they were charged with for sharing the Pentagon Papers in the 1970s.
During Mr Reagan's years, there was Morison, who sold photos to a military magazine. His was one of the first non-spy Espionage cases of the modern era. One of his charges was 18 USC 793(e).
During Clinton's years, there was Dr. Wen Ho Lee, a guy who was kept in solitary confinement for 9 months because, basically, he backed up his programs to a tape drive in case LANL's computers crashed again. The government also decided that mathematics formulas taught to every engineering student in college had somehow become 'national defense information'. The judge later apologized to him, and the government later payed him a couple hundred grand; so did the newspapers that had sprayed 'Chinese Spy' across their front pages. He was charged with 793(e).
With Bush, there was Kenneth Wayne Ford in 2005. Ford kept some boxes from his NSA job in his house; they set up a woman to act like his girlfriend then busted him. An interesting coincidence -- At NSA, Ford had said he found no evidence that Iraq had WMDs. He got 6 years under 18 USC 793(e).
Then we get to the AIPAC case; Franklin Rosen and Weissman. 2005. They got charged with a lot of things, and 793(e) was one of them. 793(e) is, again, used against a US citizen who gave information to another US citizen.
Now it is 2011. Is 18 USC 793(e) popping up anywhere? Yes, yes it is. Obama has actually prosecuted more of these non-spy Espionage cases than the last few presidents put together, if you include Shamai Leibowitz (18 USC 798, disclosed unknown stuff to an unknown blogger) and Stephen Kim (18 USC 793(d), allegedly told a reporter North Korea might test a nuke). But what about 793(e)? Yes, Obama uses it too:
Thomas Drake - An NSA whistleblower, who talked to a reporter about an privacy-violating government boondoggle that got cancelled circa 2003. He's not charged with disclosure though. He is charged with 'withholding' a few important memos in his basement; one said 'Great meeting everybody!", another has UNCLASSIFIED marked across the top. Again, 793(e), its like a magical fairy law that grants wishes to DOJ, and twists it's shape to match whatever defendant they feel like prosecuting.
Jeffrey Alexander Sterling - He allegedly told a reporter that the CIA did some really dumb thing 10 years ago. He is charged with 793(e).
Bradley Manning - Among the 34 counts against him, there are several that are 793(e). One of these 793(e) counts is related to a file called 'July 7 2007 Baghdad video' -- I.e. the same date and place as the Collateral Murder video at Wikileaks.
So there is a short history of of this strange little law, Title 18 US Code, 793(e). It traces from Bradley Manning, back through Sterling and Drake, back through the AIPAC case, then Ford, then Dr. Wen Ho Lee, then back to Morison, back, back to Ellsberg and Russo, back to the Second Red Scare, to the McCarran Internal Security Act of 1950, back to HUAC, back, back to McCormick's HSUAC, which was an attempt to fight Fascists; back to the Sedition and Espionage Acts, which rounded up communists, anarchists, &c, and back, back to the Defense Secrets Act of 1911, which started out as punishing blatant spying with a simple one year prison sentence. How far we have come.
The ultimate confusion is that people in Washington 'disclose' all the time. Congress leaks, the Whitehouse leaks, executive branch departments leak, and journalists re-leak to the public. That is sort of our 'back door' democracy, discussing important topics based on information provided by the infamous 'senior officials who are familiar with the matter, but would not go on record'. Pick up a newspaper, it's probably full of national defense information. Pick up any non-fiction book on the wars written in the past few years; same thing. Has the espionage law not become an arbitrary whacking stick? Is it not applied for various reasons that have little or nothing to do with National Security? Is the effect not the stifling free speech and the free exchange of opinion in order to intimidate whistleblowers and the journalists who depend on them? Is this not what Harry Truman warned us about in 1950?
The best layed schemes
of Mice and Men
Gang aft agley
and leave us not but
grief and pain
for promised joy
This poem, by Robert Burns, was not just about plans gang aft agley. It was about a farmer, apologizing to a mouse for accidentally destroying her burrow.
References
Defense Secrets Act of 1911 (FAS.org, pg 9)
Espionage, Sedition, Hoover (Spartacus Educational)
McCormak, Dickstein, Dies, and the first HUACs (google)
ACLU on original HUAC (thehiddenevil.com)
President Truman's veto of the Internal Security Act (wadsworth.com)
Bertholt Brecht in front of Robert Stripling, HUAC (archive.org)
Nixon, Truman, McCarran (upenn.edu)
Pumpkin Papers (umkc.edu)
The Espionage Statutes and Publication of Defense Information by Harold Edgar and Benno C. Schmidt, Columbia Law Review, May 1973 (FAS.org)
Ellsberg, Russo, Pentagon Papers (rbs0.com)
Morison 1985 (ibls.com)
Dr. Wen Ho Lee, Indictment (wenholee.org, FAS.org)
Kenneth Wayne Ford, Indictment 2005 (justice-integrity.org, uscourts.gov)
Shamai Leibowitz(FAS.org)
Stephen Kim(cryptome.org)
Thomas Drake Ridenhour Prize 2011
US v Sterling 2009 (cryptome.org)
Manning charge sheets 2010 (haguejusticeportal.net)
18 USC 793, US Code, Cornell Law project
To a Mouse, On turning her up in her nest with the plough, November 1785. Robert Burns (worldburnsclub.com)