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No One Is Safe under the Espionage Act of 1917

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According do a Wall Street Journal editorial (December 7, 2010), “Chairman of the Senate Intelligence Committee Dianne Feinstein called for the prosecution of WikiLeaks founder Julian Assange because he ‘continues to violate … the Espionage Act of 1917.’” Assange’s sin? He leaked thousands of diplomatic cables that embarrassed the American government, especially in the realm of foreign policy. Many politicians and media figures have joined Feinstein’s cry for “spy charges,” with Sen. Joe Lieberman calling additionally for an investigation into prosecuting the New York Times under the Espionage Act for having published some of the leaked documents.

From Britain, Assange’s lawyer recently informed the media that he expected “spying charges in the U.S. related to the Espionage Act” to be soon brought against his client.

Such charges would raise many legal questions, one of which might involve treason, which is the crime of betraying one’s own nation, as the United States Code, Title 18, Part I clearly states: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies….” Since Assange is Australian, however, he owes no such legal allegiance to the United States.

In this, Assange differs from PFC Bradley E. Manning, the American soldier who is accused of providing classified material to WikiLeaks. Since May 2010, Manning has been held in solitary confinement at Quantico pending a court-martial; it is not known whether he will be charged under the Espionage Act.

If Manning is charged, it will be for unauthorized use and disclosure of classified information; such “leaking” is clearly a criminal offense. Assange would be charged with publishing information; it is far from clear that such publication is a crime. Historically, even American publishers have been able to appeal to the concept of “freedom of the press.”

With potential prosecutions resting on the Espionage Act, it is useful to review the Act’s contents and consequences, especially with reference to freedom of speech.

Background of the Espionage Act of 1917

On April 6, 1917, Congress declared war on Germany, and America officially entered World War I. On June 15, a federal loyalty law called the Espionage Act became one of America’s first pieces of wartime legislation. Along with an 1918 amendment called the Sedition Act, the Espionage Act immediately became one of the most controversial measures in American history, not because of how it dealt with foreign espionage but because of how it affected the freedom of speech of publishers, journalists, anti-war activists, labor reformers, socialists, and the average American.

In his essay “Not Just Japanese Americans: The Untold Story of U.S. Repression during ‘The Good War,’” the historian Jeffrey Rogers Hummel described the three key features of the 1917 Act:

(1) a true espionage law, which punished spying and wartime sabotage, (2) a neutrality law, which restricted the non-neutral acts of private citizens in foreign conflicts, and (3) a sedition law, providing up to twenty years in jail and a $10,000 fine for aiding the enemy with “false reports or false statements,” for obstructing recruiting, or for causing insubordination, disloyalty, or mutiny in the U.S. armed forces. The act also empowered the Postmaster General to exclude from the mail issues of newspapers and periodicals that he felt were subversive.

Under the Sedition Act it became illegal to:

  • make false reports, or false statements … with the intent to obstruct the sale by the United States of bonds
  • utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution … or the military or naval forces … or the flag … or the uniform of the Army or Navy … or any language intended to bring the form of government … or the Constitution … or the military or naval forces … or the flag … into contempt, scorn, contumely, or disrepute
  • willfully display the flag of a foreign enemy
  • urge, incite, or advocate any curtailment of production in this country of any thing or things … necessary or essential to the prosecution of the war. The original 1917 Act amended existing espionage law; the Sedition Act established new law that, nevertheless, had precedent within American history.

The Alien and Sedition Acts

From 1798 to 1800, the United States and France were involved in an undeclared war now known as the Quasi-War. The conflict grew out of America’s increasingly close ties with Britain — the enemy of both France and Ireland. Americans began to view with suspicion the many French and Irish immigrants in their midst; politicians began to worry about civil unrest and dissent. And so, “loyalty legislation” was pushed through Congress in 1798. The Alien and Sedition Acts consisted of four laws. The most explosive one was officially entitled “An Act for the Punishment of Certain Crimes against the United States,” or, unofficially, the Sedition Act. It provided fines and jail terms for anyone who “shall write, print, utter or publish … false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress … or the President … with intent to defame … or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States….”

The Acts had been championed by the Federalists who dominated Congress. That faction favored a strong federal government and a loose interpretation of the Constitution. Their key political rivals were the Republicans, including Vice President Thomas Jefferson. The Republicans denounced the Acts as unconstitutional and the new powers granted to President John Adams as monarchical. In Kentucky and Virginia, the legislatures passed resolutions rejecting the measures.

For openly resisting what Federalists called “genuine liberty,” several Republicans were arrested under the Sedition Act. Publishers and editors were targeted especially. For example, Congressman Matthew Lyon of Vermont, who edited a Republican newspaper, was fined $1,000 and sentenced to four months for the crime of stating that President Adams was “swallowed up in a continual grasp for power.” When Benjamin Franklin’s grandson, who edited the Philadelphia Aurora, was charged with libeling Adams, his arrest caused a public backlash that helped Jefferson win the presidency in 1800. Once installed, Jefferson pardoned those who had been convicted under the Sedition Act, and Congress repaid the collected fines with interest.More than a century later, therefore, Woodrow Wilson had historical precedent both for the law and for the political costs that he might expect.

Casualties of the Espionage Act of 1917

Wilson was determined to “protect” America against itself; that is, against “wrong’” ideas and from those who would spread them. He referred to the dissemination of wrong ideas as “the insidious methods of internal hostile activities.” Attorney General Thomas Gregory called it “warfare by propaganda.”

What constituted propaganda varied but it shared a common theme: namely, opposition to the wartime government. Virtually every form of resistance to or criticism of the government became a potential felony. In a 1988 analysis, the conservative sociologist Robert Nisbet commented, [when] “America was introduced to the War State in 1917, it was introduced also to what would later be known as the total, or totalitarian, state.”

An officially sanctioned patriotic hysteria swept America. Legislatures outlawed teaching German or publicly playing “German music,” such as Wagner or Beethoven. German books were removed from public libraries. German-sounding streets were renamed, and sauerkraut became “liberty cabbage.” The Red Cross barred those with German last names from joining it. German immigrants or their descendants were viciously attacked and their attackers suffered no consequences. In Minnesota, a minister was tarred and feathered for praying in German with a dying woman.After the Bolshevik (Red) Revolution shook global politics to its roots, socialists became special targets, with men being beaten in the streets for no more than wearing a red tie or refusing to buy a war bond.

The law imposed an official censorship as well. The government seized a film entitled The Spirit of ’76 because it depicted cruelty committed against the colonists by the British, America’s wartime ally; the producer received a 10-year prison sentence. A federal court upheld the seizure; the sentence was commuted to three years upon appeal. The poet E.E. Cummings, who spoke openly of refusing to hate the Germans, spent three and half months in military detention. Also arrested was novelist William Slater Brown, who had served with Cummings in an Ambulance Corps in France, who explained, “C. and I knew all about the violent mutinies in the French Army a few months before Cummings and I reached the front…. The French did everything, naturally, to suppress the news.”

The sheer number and scope of imprisonments make the telling difficult. One segment of society epitomizes the repression, however: the anti-war movement. Anti-war voices were particularly vulnerable because so many came from socialist or labor-reform ranks. Perhaps the most prominent imprisonment was the 10-year sentence of the socialist leader and former presidential candidate Eugene V. Debs for the crime of criticizing the Espionage Act as unconstitutional.

Notoriously, six members of a New York Jewish anarchist group were also arrested for criticizing the government; for example, a pamphlet denounced the invasion of Russia in the wake of the Brest-Litovsk Treaty. One member died of a police beating. Three others received 20-year sentences. The one woman arrested, Mollie Steimer, was sentenced to 15 years. (The sixth member had been arrested by mistake and, so, was released.)

A backlash began to coalesce, including prominent voices such as pacifist Norman Thomas, birth-control activist Margaret Sanger, feminist Alice Stone Blackwell, muckraking journalist Lincoln Steffens, and Roger Baldwin, a founder of the American Civil Liberties Union. Indeed, the ACLU itself sprang from the National Civil Liberties Bureau, formed in 1917 to provide legal assistance to those prosecuted under the Espionage Acts.

The League for Amnesty of Political Prisoners issued a leaflet entitled “Is Opinion a Crime?” The question was a response to the U.S. Supreme Court’s 7-2 decision in Abrams v. United States (1919). Abrams rested on whether political speech was protected by the First Amendment or whether it was a crime under the Espionage Act. The Supreme Court answered, “It is a crime.” In a famous dissenting opinion, Justice Oliver Wendell Holmes clarified his “clear and present danger test” for free speech, “Only the emergency that makes it immediately dangerous to leave the correction of evil counsels … warrants making any exception to the sweeping command, ‘Congress shall make no law abridging the freedom of speech.’” (Several other important U.S. Supreme Court decisions affirmed aspects of the Espionage Act.)

Meanwhile, the arrest of hundreds of conscientious objectors occurred, including women. For example, Rose Pastor Stokes was sentenced to 10 years for stating in a letter to the Kansas City Star that “no government which is for the profiteers can also be for the people, and I am for the people while the government is for the profiteers.”

The labor-reform movement was heavily targeted for at least four reasons: it was largely socialist; it contained many foreigners; it engaged in the disruption of production through strikes; it was anti-war because it viewed the German people as “fellow-workers” of the world, not enemy combatants.

Across America, the meeting halls of the Industrial Workers of the World (IWW) were raided simultaneously. In 1917, 165 prominent IWW members were arrested. In April 1918, 101 defendants went on trial, including IWW head Big Bill Haywood. After five months, all were found guilty, with Haywood and 14 others each receiving 20-year sentences. Collectively, the defendants were fined $2,500,000. From a membership of more than 100,000 in early 1917, the IWW was effectively destroyed.

The destruction of social movements, such as labor reform, was also accomplished through less official means, as an incident known as the Bisbee Deportation illustrates. In the mining town of Bisbee, Arizona, the IWW had recruited members among Mexican and European workers who routinely labored at lower-paying jobs than native-born Americans. In June of 1917, the IWW presented a list of demands to Bisbee’s mining companies, which were flatly turned down. A strike ensued. Hundreds of armed vigilantes rounded up nearly 1,200 men suspected of striking and forced them into cattle cars. The “deportees” were shipped to New Mexico and abandoned without shelter for weeks until U.S. troops escorted them to detention facilities. Thus, with government sanction, zealous citizens were free to kidnap, beat, and otherwise intimidate those who were considered un-American.

Even after World War I ended, ultra-patriotism led to the persecution of un-Americanism. This period became known as the Red Scare (1919–1920) and reached its zenith with the Palmer Raids. Under the supervision of Attorney General A. Mitchell Palmer and his special assistant J. Edgar Hoover, a vicious campaign was launched against radicals and included the deportation of dissident immigrants; even American citizenship did not protect against deportation, as Emma Goldman discovered.

The fever of war eventually faded, however. A change of Department of Labor personnel indicated the flagging enthusiasm. The new acting secretary of Labor, Louis Freeland Post, was also responsible for the Bureau of Immigration and canceled more than 2,000 of Palmer’s arrest warrants as illegal, an act that President Wilson defended.

In 1920, most of those sentenced during the Red Scare were freed. Debs himself was released in 1921 by Warren Harding. In 1921 the Sedition Act was also repealed, although other provisions of the Espionage Act remained intact.

The Espionage Act today

Through World War II to the present day, the Espionage Act has been both amended and consistently invoked to quash political dissent and discussion.

In June 1971, at the peak of the Vietnam War, military analyst Daniel Ellsberg and his colleague Anthony Russo were charged under the Espionage Act for publishing the classified documents that came to be known as the Pentagon Papers. The New York Times was threatened under the Act for having published the documents. In the end, Ellsberg and Russo were freed owing to irregularity in the government’s case, which led to the declaration of a mistrial.

Almost 40 years later, the Espionage Act once again hangs over the New York Times and another whistle-blower, Julian Assange.

It is difficult to predict who, if anyone, will be charged under the Espionage Act of 1917 … or when. A political hysteria and repression akin to the one that produced the Act seems to be currently gripping America. Prominent political voices have gone so far as to argue for extra-judicial execution of Assange. For example, the former governor of Alaska, Sarah Palin, accused Assange of a “treasonous” act, saying America should “use all necessary means” to hunt him down like an al-Qaeda terrorist.

The Espionage Act is notoriously broad. Moreover, an executive order is currently being drafted to establish indefinite detention without charges or trial for those the White House designates; the White House alone would control any review process. The political atmosphere may well allow for an expansion of the Espionage Act sufficient to cover Assange by stretching it to explicitly include anyone who publishes, circulates, or discusses already leaked information.

Indeed, stretching the Espionage Act seems to be the purpose of the Shield Act, recently introduced into Congress to facilitate prosecution of those who publish “cryptographic systems and communications intelligence.” It amends the Espionage Act with wording that reads,

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government or trans- national threat to the detriment of the United States any classified information … concerning the human intelligence activities of the United States or any foreign government [or] concerning the identity of a classified source or informant of an element of the intelligence community of the United States … [s]hall be fined under this title or imprisoned not more than ten years, or both. [Emphasis added.]

Since leaking classified information is already a crime, the amendment appears to specifically target those who publish or report on such information.

Benjamin Wittes, a senior fellow at The Brookings Institution, explains, “A lot of good journalism would be a crime under this provision; after all, knowingly and willfully publishing material ‘concerning the human intelligence activities of the United States or any foreign government’ is no small part of what a good newspaper does.”

Why should the average American care about an expansion of the Espionage Act? The liberal feminist Naomi Wolf clarifies: “Let me explain clearly why activating — rather than abolishing — the Espionage Act is an act of profound aggression against the American people. We are all Julian Assange.”

If publishers and journalists can be punished for unpatriotic discussion, then no one’s speech is protected by the First Amendment or other legal “niceties,” such as due process. The history of the Espionage Act (and the Alien and Sedition Acts before it) indicates how quickly political opponents, dissidents, or even those with the “wrong” ethnic background become targets for repression. Any person who so much as discusses a leak of classified information could be arrested under the Shield Act on the ground that he is endangering national security.

When the original Act was introduced in 1917, Sen. Kenneth McKellar of Tennessee declared, “If we cannot reason with men to be loyal, it is high time we forced them to be loyal.”

The Espionage and Shield acts amount to the American government’s renunciation of reason and an official declaration of hostility toward its own citizenry.

This article originally appeared in the April 2011 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).