Peter Galison Secrecy in Three Acts THE ESPIONAGE ACT: SPYING-SABOTAGING-UTTERING AT i:i8 PM ON APRIL 6, I917, THE CONGRESS OF THE UNITED Stateslaunched the countryinto the great European conflict that had beenraging for almost three years: "The state of war between the United Statesand the ImperialGerman Government, which has been thrust uponthe United States, is herebyformally declared" (National Center). In June,Congress passed the EspionageAct, the firstact of the three secrecy-definingstatutes that have shaped so muchof the last hundred yearsof modern American secrecy doctrine.1 Along with the two other statutesthat followedin later decades- the AtomicEnergy Acts of 1946 and 1954, and the PatriotAct of 2001- these threeacts picked out inflectionpoints in thegreat ratcheting process that has expanded secrecyfrom the protection of troop positions and recruitmentstations throughan entirefield of the physical sciences to almostthe whole of governmentand civilsociety. Along with a surroundof orders,direc- tives,laws, and policies,these three acts ground the modernworld of nationalsecurity secrecy. Necessarilyschematic, my aim here is to followthe long-term historyof secretsover the last 100 years,using the debatesand cases thatencircled them to understandbetter the governingprinciples of whatinformation had to be hidden.What dangers did each periodiden- tifyamong that which should be secret?What were the properties and I wouldlike to thankJeanne Haffher for her exceptionally helpful research assistance and thoughtfulcomments; Robb Moss whose collaborationon our film,Secrecy, lies behindmany of the concernsexplored here; and AlexWellerstein for many fascinat- ingdiscussions surrounding his originalresearch into nuclear secrecy. social research Vol 77 : No 3 : Fall 2010 941 This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions assumedpower of thesesecrets? What could, in the end,properly be declaredsecret? In short,I am interestedin usingthe acts to fixwhat it is thatsecrets were: a historicallychanging ontology ofsecrets from World WarI throughthe Long War (World War II throughthe ColdWar), and finallyinto the Terror Wars, our age's unboundedconflict. Thefirst of our three breakpoints, the 1917 Espionage Act, forbade justthe kind ofthing you might expect: it laid out stern punishment for anyoneconvicted of stealing secrets about the national defense in order to harmthe United States. Here are proscribedin sections1 and 2 just the kindof cloak and daggeractivities that its titlesuggested: enter- ing or flyingover forbidden sites to obtaininformation about ships, aircraft,dockyards, torpedo stations, defense works, canals, factories, camps,communications centers, or troopmovements. Punishable too wouldbe copying,taking or making sketches, photographs, documents, blueprints,code booksor modelsof defense materials for the purpose ofcausing injury to theUnited States. For mere destruction or misuse, the perpetratorcould be imprisonedfor two years and fined$10,000. Asthe misdirection of, say, a secretphotograph moved toward a foreign recipient,the consequencesbecame graver.Worst of all would be deliberatelyhanding such items in wartimeto enemyagents - a crime punishableby death (Espionage Act of 1917; Sedition Act of 1918). To keep the secretsof the Armyand Navysafe fromsnoops, Congressvested in the presidentthe power to designateany site a prohibitedplace. Other titles within the EspionageAct addressedthe dangerof sabotage- settingfire, for example, to a munitionsfactory, or plantingbombs on ships. Where an enemywas illicitlyobserv- ing,destruction could not be farbehind. More surprising and fateful forordinary citizens was thatthe EspionageAct went on, in section 3, to addressutterances - the kindof speechor writtenact thatmight obstructrecruitment, hamper the successof military force, or, in time ofwar, precipitate insubordination, mutiny, disloyalty, or dereliction ofduty. The moveto censormet resistance. President Woodrow Wilson himselfobjected in a letterto ArthurBrisbane, the NewYork newspa- pereditor on April25, 1917that 942 social research This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions I sincerelyappreciate the franknessof your interesting letterof Apriltwentieth with referenceto the so-called Espionage Bill now awaitingaction of the Congress.I approveof thislegislation but I need not assureyou and thoseinterested in it that,whatever action the Congress maydecide upon, so faras I am personallyconcerned, I shallnot expect or permitany part of this law to applyto me or anyof my official acts, or in anyway to be used as a shieldagainst criticism. I can imagineno greaterdisservice to thecountry than to establisha systemof censorship that would denyto the people of a freerepublic like our own theirindisputable right to criticisetheir own publicoffi- cials.While exercising the great powers of the office I hold, I wouldregret in a crisislike the one throughwhich we are now passingto lose thebenefit of patriotic and intelligent criticism. In these tryingtimes one can feel certainonly of his motives,which he muststrive to purgeof selfishnessof everykind, and awaitwith patience for the judgment of a calmerday to vindicatethe wisdom of the course he has triedconscientiously to follow(Woodrow Wilson 1917). Whatkind of utterances were actually prosecuted? Ves Hall was a rancherfrom Rosebud Country, Montana. In January 1918, the prosecu- tor,Assistant District Attorney Homer G. Murphyhauled him before federaldistrict Judge George M. Bourquin,charging him withviolat- ing the EspionageAct: interfering with military operations, blocking recruitment,aiding the enemy. From the court proceedings: "At diverse timesin thepresence of sundry persons, some of whom had registered forthe draft,[Hall] declared that he wouldflee to avoidgoing to war, thatGermany would whip the UnitedStates, and he hoped so, that the Presidentwas a Wall Streettool, using the UnitedStates forces in thewar because he was a Britishtool, that Wilson was the crookedest [censored]-everPresident; that he was the richestman in the United Secrecy in Three Acts 943 This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions States."Murphy went after the ranchertooth and nail (Nelles1918: 6; Gutfield1968: 168). In his prosecution,Murphy had the fullbacking of the press, whichwas ownedby the big miningcompanies. Federal District Court JudgeGeorge M. Bourquinshrugged off the pressurefrom both the extractionindustry and fromthe Justice Department itself - refusing to be shovedinto convicting war-resisting "slackers." In the Hall case, Bourquinfound that the loud-mouthedfellow had, in fact,said the thingsof which he was accused,but had done so in a villagewith a popu- lationof 60, 60 milesfrom the railway and thousandsof miles from the frontlinesof the armiesand navieshe was supposedto havewounded withwords: "The declarationswere oral,some in badinagewith the landladyin a hotelkitchen, some at a picnic,some on thestreet, some in hot and furioussaloon argument"(Nelles 1918: 6). Thanksto the nonpresencein Montanaof a greatnaval fleet or army, the judge judged thatHall did not seem to have had an intentto interferewith their operations.In Bourquin'sview, someone who shotanother with a .22 pistolfrom three miles away could hardlybe convictedof attempted murder- so it was withHall; his verbalassault was so distantfrom its targetthat there simply was no plausiblecase to be made forinterfer- encewith military operations or recruitment(Gutfield 1968: 168-169). Morelikely than Hall suddenlysinking the U.S. Navy,Bourquin added,would be Hall gettinga "brokenhead" in a barroombrawl: "The EspionageAct is not intendedto suppresscriticism or denunciation, truthor slander,oratory or gossip,argument or loose talk,"but only actual obstructionor injuryto the military.The idea, he concluded, thatslanderous or disloyaltalk could get the utterer prosecuted by the UnitedStates "is a mistake."The courtacquitted Hall, though not with- out a roarof disapprovalfrom the nationalistpress and the impeach- mentof one ofHall's character witnesses, Judge Charles L. Crum(Nelles 1918:6-8; Gutfield 1968: 163). Prosecutorswere moresuccessful in theirOctober 1917 indict- mentof 27 Socialistfarmers in HutchinsonCounty, South Dakota, with EmanuelBaltzer as the lead defendant.The accusedsent a petitionto 944 social research This content downloaded from 140.247.28.45 on Tue, 21 Apr 2015 15:16:06 UTC All use subject to JSTOR Terms and Conditions the sheriff,treasurer, and auditorof HutchinsonCounty and to the governorof the state,arguing that the people were againstthe draft, thatthe county quota was unfairlyfixed, and a referendumon thewar and draftwas needed.Ignoring this petition, so saidthe farmers, would "spellsure defeat for you and yourparty." The chargehere was thatthe accusedhad deliberatelyinterfered with an official'sdischarge of his dutiesto runthe draft. Judge F. A. Youmans instructed the jury to assess whetherthe defendantswere in conspiracyand whethertheir actions willfullyobstructed the draft. The jury convicted, but the district court's decisionwas reversedby a highercourt on December16, 1918 (Nelles 1918:17-18).1 On August29, 1917,in theSouthern District of Georgia, the post- mastersought to blockmailing privileges for "The Jeffersonian" under the EspionageAct. A bill came beforethe courtto removethe