An audio recording of former US president Donald Trump discussing holding secret documents has been leaked to CNN. This could form part of the ongoing investigation into Trump’s alleged misuse of classified documents. He has been charged with 37 violations of the US Espionage Act, and pleaded not guilty.
The Espionage Act of 1917 could have a better name. Those who violate it are not necessarily spying on the US or selling its secrets to a foreign adversary. Simply mishandling secret information could be a violation if done wilfully, or if that mistake was covered up.
It might sound ridiculous, but carrying files from one office to another inside the Pentagon – headquarters of the US Department of Defense, where I once worked – without a “secret” coversheet could be a criminal act under the Espionage Act.
Of course, secrecy is incredibly important for governments. Every nation faces threats in one way or another, so it is important to prepare for them with a national security apparatus: police forces, the military and intelligence agencies. For democracies, secrecy presents a paradox: public servants, using taxpayer funding, are implementing the policies of elected officials in a way that the public cannot scrutinise. Western democracies, and my home country the US especially, have yet to come up with an ideal system to address this.
I held graduate internships in the US Embassy in Moscow and later in the Pentagon. The work I did there is still secret. When I got my clearance, my friends asked me typical questions like: “Who really killed JFK?”
Unfortunately for me, most classified work is incredibly boring. In fact, most classified information can probably be found on Google, albeit out of context. The real need for secrecy lies with how governments use that information to advance their interests.
Think of secrecy like this: when you watch your favourite football club, you hope the coach does not email their opposite number beforehand with details of their gameplan. If they did, fans would call for their sacking, and rightly so. Even if the team wins the match, and even if the plans were accidentally sent, the coach has violated the sanctity of the club. That is the Espionage Act in a nutshell.
Millions have clearance
Today, 5.1 million people in the US have a security clearance – of whom 1.25 million have top-secret clearance. These professionals have access to US national strategy documents at various levels.
As a privilege that takes months to obtain, it is understandable that some people like to brag about their access. For example, it is believed that leaker Jack Teixeira was showing off to his friends in a gaming community when he posted hundreds of documents, including highly secret information about Ukraine’s ammunition shortages and counteroffensive plans.
And, when I listen to the British podcast The Rest is Politics, hosts Alastair Campbell (former prime minister Tony Blair’s official spokesperson) and ex-MP Rory Stewart like to give sly nods to their access and knowledge from their times in high-level politics.
Listening to the CNN recording, one might conclude that Trump was also showing off Pentagon plans to a staffer not cleared to see them.
Espionage Act violations come in many different forms and can result in a wide variety of punishments, if any at all. Teixeira, an enlisted airman, is potentially facing decades in prison for his violations, whereas General David Petraeus received parole and a fine for sharing highly classified information with his lover.
High-ranking individuals’ treatment of state secrets is legally difficult to define since, as decision-makers, it is important for them to decide who sees what information, especially in a crisis. A US president can tell anyone almost anything while they are president, and it is automatically declassified. They cannot wait for a policy and legal review when making urgent diplomatic and military decisions. When Trump gave highly classified US-Israeli intelligence to Russia in 2017, it was considered legal, but a breach of security etiquette.
Lots of secrets should not remain under wraps. Revealing US intelligence ahead of Russia’s invasion of Ukraine is likely to have saved a lot of lives. Russian plans were laid bare, and Ukraine was able to prepare accordingly.
But at other times, revealing secrets can threaten lives. How, then, do we know elected officials and public servants are doing the right thing?
Changing times
In the UK, the Nolan Principles set out seven principles for public life: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. In a perfect world, public officials would see these as a lodestar for their service.
Of course, these principles are vague and impossible to codify into law. How could a court prosecute someone for not embodying openness? By that standard, every MI6 employee should be fired immediately, but what would that do for national security? This is the heart of the democracy paradox.
My ongoing work explores how artificial intelligence can assist in this complicated task. AI is the ultimate task-killer – so if oversight of US national security agencies is massively stretched by the amount of work required, AI can potentially help out.
For now, oversight and accountability are Sisyphean tasks in a functioning democracy – ones that may never be completed – but these are still tasks worthy of our time and attention.
The Espionage Act is a relic of American politics during the first world war, when there was fear of intelligence vulnerabilities in a time of global conflict. This act is difficult to apply in a modern context, given the greater complexity of US government work and national security, as well as the arrival of new technologies. It is time for a much-needed review.