Before It’s News
December 22, 2010
Is the Espionage Act a good law? As various prominent members of our government and media add their voices to those calling for charging Julian Assange and The New York Times under the Espionage Act, it’s important to remember and not repeat the Act’s ugly past.
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| President Woodrow Wilson wanted a war and, faced with the troublesome First Amendment, wished to criminalize speech critical of his war. | |
Bestselling author, Naomi Wolf, recounts the damage done by the Espionage Act over at the Huffington Post:
The Espionage Act was crafted in 1917 — because President Woodrow Wilson wanted a war and, faced with the troublesome First Amendment, wished to criminalize speech critical of his war. In the run-up to World War One, there were many ordinary citizens — educators, journalists, publishers, civil rights leaders, union activists — who were speaking out against US involvement in the war. The Espionage Act was used to round these citizens by the thousands for the newly minted ‘crime’ of their exercising their First Amendment Rights.
A movie producer who showed British cruelty in a film about the Revolutionary War (since the British were our allies in World War I) got a ten-year sentence under the Espionage act in 1917, and the film was seized; poet E.E. Cummings spent three and a half months in a military detention camp under the Espionage Act for the ‘crime’ of saying that he did not hate Germans.
Esteemed Judge Learned Hand wrote that the wording of the Espionage Act was so vague that it would threaten the American tradition of freedom itself. Many were held in prison for weeks in brutal conditions without due process; some, in Connecticut — Joe Lieberman’s home state — were severely beaten while they were held in prison. The arrests and beatings were widely publicized and had a profound effect, terrorizing those who would otherwise speak out.
Presidential candidate Eugene Debs received a ten-year prison sentence in 1918 under the Espionage Act for daring to read the First Amendment in public. The roundup of ordinary citizens — charged with the Espionage Act — who were jailed for daring to criticize the government was so effective in deterring others from speaking up that the Act silenced dissent in this country for a decade. In the wake of this traumatic history, it was left untouched — until those who wish the same outcome began to try to reanimate it again starting five years ago, and once again, now. Seeing the Espionage Act rise up again is, for anyone who knows a thing about it, like seeing the end of a horror movie in which the zombie that has enslaved the village just won’t die.
In the few months after its passage, around 900 went to prison under the Espionage Act. Over 450 conscientious objectors were imprisoned as a result of this legislation including Rose Pastor Stokes who was sentenced to ten years in prison for saying, 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.”
During the Red Scare (1919-20) A. Mitchell Palmer, the attorney general and his special assistant, John Edgar Hoover, used the Espionage Act and it’s companion the Sedition Act to launch a campaign against radicals and left-wing organizations. Under these two laws 1500 people were arrested for disloyalty. (Pictured right: Eugene Debs, Max Eastman, Rose Pastor Stokes)
Wolfe continues:
I predicted in 2006 that the forces that wish to strip American citizens of their freedoms, so as to benefit from a profitable and endless state of war — forces that are still powerful in the Obama years, and even more powerful now that the Supreme Court decision striking down limits on corporate contributions to our leaders has taken effect — would pressure Congress and the White House to try to breathe new life yet again into the terrifying Espionage Act in order to silence dissent.
In 2005, Bush tried this when the New York Times ran its exposé of Bush’s illegal surveillance of banking records — the SWIFT program. This report was based, as is the WikiLeaks publication, on classified information. Then, as now, White House officials tried to invoke the Espionage Act against the New York Times. Talking heads on the right used language such as ‘espioinage’ and ‘treason’ to describe the Times’ release of the story, and urged that Bill Keller be tried for treason and, if found guilty, executed. It didn’t stick the first time; but, as I warned, since this tactic is such a standard part of the tool-kit for closing an open society — ‘Step Ten’ of the ‘Ten Steps’ to a closed society: ‘Rename Dissent ‘Espionage’ and Criticism of Government, ‘Treason’ — I knew, based on my study of closing societies, that this tactic would resurface.
If you want to feel a chill down your spine, consider this recent comment by Senator Lieberman, an extremely vocal player in the push to prosecute Julian Assange and the New York Times, on Fox News. He said the Times “has committed at least an act of bad citizenship. And whether they’ve committed a crime, I think that bears very intensive inquiry by the Justice Department.” So for Lieberman, “bad citizenship” is enough to warrant “intensive inquiry” from the Justice Department.
The Espionage Act has almost always been used in only the most questionable of circumstances.
In June 1971, Daniel Ellsberg and Anthony Russo were charged with a felony under the Espionage Act of 1917, because they lacked legal authority to publish classified documents that came to be known as the Pentagon Papers. The Supreme Court in New York Times Co. v. United States found that the government had not made a successful case for prior restraint, but a majority of the justices ruled that the government could still prosecute the Times and the Post for violating the Espionage Act in publishing the documents. Ellsberg and Russo were not acquitted of violating the Espionage Act, but were freed due to a mistrial based on irregularities in the government’s case. [Source: Wikipedia] (Pictured right: Daniel Ellsberg)
The new legislation, called ‘SHIELD’, being proposed by congress members like Lieberman is seen as extremely dangerous by many legal experts. Legal analyst Benjamin Wittes has called the proposedlegislation “the worst of both worlds,” saying, “It leaves intact the current World War I-era Espionage Act provision, 18 U.S.C. 793(e), a law [with] many problems…and then takes a currently well-drawn law and expands its scope to the point that it covers a lot more than the most reckless of media excesses. 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.” (Pictured left: Senator Joe Lieberman)
Benjamin Wittes, senior fellow and legal analyst at The Brookings Institution in Washington say, “”Taken at its word, the Espionage Act makes felons of us all.”
The Congressional Research Service released a report finding that there are U.S. criminal statutes that apply, but in the past they “have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.”
Keep your eye firmly fixed on what happens with SHIELD, Julian Assange and The New York Times.
