Thinking About History Thursday

The Sordid History of the Espionage Act of 1917

The recent Justice Department scandal dealing with the seizing of AP phone records (and possibly FOX News too) is being justified through the provisions of the Patriot Act. What few people realize is that the Patriot Act is based on a much older law, the Espionage Act of 1917. To understand what is going on some historical knowledge of that World War One law is necessary.

The law as passed in June of 1917, just a few months after America's entry into World War One, criminalized attempts to interfere with military operations, support enemies of the nation, or disrupt military recruitment. The limits the law placed on freedom of speech were upheld by the Supreme Court in Schenck v. United States. The law stayed on the books and was transferred from the U.S. Code of War to the Criminal Code after the end of WWI. It has been amended numerous times since.

The largest assemblage of amendments were added in May of 1918 and collectively are known as the Sedition Acts. These placed the most restrictive laws on expression found in the Espionage Act and limited freedom of speech, symbolic speech, press and assembly if those actions impeded the nation's ability to conduct war or aided the enemy. After the war the Sedition Acts became even more controversial because many feared they would be applied during peacetime, so all were repealed in 1921.

The Espionage Act was amended a few times during World War Two. The first made the publication of any material that threatened US security or was of a classified nature a criminal offense. Additions to the Espionage Act also came in the form of Executive Orders (such as 9044 which called for the internment of Japanese Americans) that expired with the end of the war. But right after the war, in conjunction with a redesign of the country's national security apparatus, the McCarran Internal Security Act of 1950 was approved and built upon the foundations of the 1917 Espionage Act. The McCarran law targeted communist organizations during the Cold War years, giving the government extraordinary powers to track and monitor communist groups and individuals. Many of the McCarran provisions were deemed unconstitutional in 1993. In 1961 the Espionage Act was amended again when its jurisdiction was expanded beyond the borders of the United States to include US shipping, bases overseas, embassies, etc.

Many challenges to the Espionage Act made it to trial. Directors of the Watch Tower Bible and Tract Society were convicted under the law and sentenced to up to 20 years in prison (although they served only 9 months and the charges ended up being dropped). Emma Goldman was deported for her anti-American rhetoric and opposition to the draft both illegal based on the Espionage Act. Father Charles Coughlin's weekly Social Justice was effectively shut down in a case based on the Espionage Act for printing stories judged harmful to national security during World War Two. The Rosenbergs were indicted and executed under provisions of the law in 1951-1953. During that same Red Scare era, Alger Hiss, a State Department official, was convicted for violating the McCarran additions to the Espionage Act. In the famous Nixon Era Pentagon Papers case Daniel Ellsberg was convicted for violating the Espionage Act but was freed due to a mistrial ruling by the judge. In the 1980s a number of Soviet moles and spies were convicted under the law for providing classified material to the Soviet Union. More recently, the founder of Wikileaks, Julian Assange, is under indictment for violating the Espionage Act.

The Patriot Act passed after the terrorist attacks on 9/11 and renewed by Congress is a continuation and addition to the pre-existing Espionage Act. Many of the legal concepts and justifications found in it are based on the precedents set in the Espionage Act and the case law surrounding it. What many Americans fail to see is that the Patriot Act is not some strange anomaly that appeared after the fall of the Twin Towers. It is a set of national security laws and regulations that build upon what was already in existence. Liberty was already under attack by government laws before 9/11. While the Patriot Act may have taken those restrictions on freedoms to another level, it is not some isolated body of law. To understand the Justice Dept./AP scandal one has to look back one hundred years to World War One.

It is a classic example of liberty and security. You can not have both. Giving law enforcement the power to seize phone records will lead to a safer more secure existence, at the cost of privacy. On the other hand, putting too many hurdles in front of those trying to catch the bad guy and make America safer slows down the process and makes for less security. I would think that a person's opinion of the current scandal would be based on where they fall along the liberty v. security continuum and not their party affiliation.

Posted with Blogsy