Credit: gvshp.org
By Brandon Blanco
The 1917 Espionage Act was passed by Congress and signed by President Woodrow Wilson on June 15th, two months after the United States entered World War I. The Espionage Act was intended to prosecute American citizens for publishing secret U.S. military information on behalf of America’s enemies.
During the same time, there were opposition groups (pacifists, socialists, and anarchists) at home who were against the U.S. decision to take part in the European conflict and people who were opposed to the draft. Those same people who protested the US’s involvement were Irish, German, and Russian immigrants. They questioned their loyalty to the US under this law.
However, the Espionage Act was weaved together with another similar law, the 1918 Sedition Act. The two laws broadly criminalized any “disloyal, profane, scurrilous, or abusive language” about the U.S. government or military, or any speech intended to “incite insubordination, disloyalty, mutiny, or refusal of duty.” It prosecuted groups who dissented on the U.S participation in wars.
An example of the 1917 Espionage Act in play was in the landmark Supreme Court case in Schenck v. United States. Charles T. Schenck, a socialist activist, was charged with violating the Espionage Act after circulating flyers to men eligible for the draft to oppose and resist the draft.
The Supreme Court, in a unanimous 9-0 decision, upheld the Espionage Act and Schenk’s conviction. Writing for the court’s opinion, Justice Oliver Wendell Holmes held that the danger that existed during World War I justified the law's restriction on the First Amendment.
Another Instance in the Espionage Act being used was during the start of the Cold War. The Red Scare (or McCarthyism) was a campaign led by US Senator Joseph McCarthy (R-Wisconsin) to accuse anyone suspected of being a communist and being espionage for the Soviets.
The primary targets of the McCarthyite persecution were government employees, prominent figures in the entertainment industry, academics, left-wing politicians, and labor union activists. Many of them were prosecuted through the Espionage Act and were blacklisted (where they were denied employment in all fields) .
While eventually, Congress repealed the Sedition Act of 1918, the 1917 Espionage Act remains in effect today.
As it is currently used to prosecute against spies or anyone assisting an enemy of the US, the law has been used multiple times to charge federal employees and whistleblowers with leaking classified information to journalists.
The Espionage Act should be repealed because it is used in a retaliatory manner to prosecute whistleblowers who expose the U.S’s government activities inside and outside the US. Daniel Ellsberg, Edward Snowden, and Julian Assange are examples of these.
Credit: AP 1974
The first example of how this is used in a retaliatory manner was the prosecution of Daniel Ellsberg during the Vietnam war. Daniel Ellsberg, a former defense analyst, leaked the famous Pentagon Papers to the New York Times in 1971.
The Pentagon Papers were files that revealed the United States' political and military involvement in Vietnam from 1945 to 1967. One example from the Pentagon Paper was that it revealed John F. Kennedy’s conspiracy to overthrow the and assassinated South Vietnamese and Pro-US President Ngo Dinh Diem in 1963.
However, the Nixon administration did not take the release of the report lightly, as they were adamant that Ellsberg and his partner were guilty of a felony under the Espionage Act of 1917, because they had no authority to publish classified documents. The DOJ also filed a restraining order against the publication of New York Times’s material, for the same reasons above.
In a 6-3 decision, the U.S. Supreme Court ruled that the Nixon administration failed to provide evidence on why the publication would harm its national security, and that publication of the papers was justified under the First Amendment’s Freedom of the Press.
Finally, after Ellsberg was arrested and tried in a Los Angeles Court in 1973, judge William Byrne Jr. eventually dismissed charges against him and his colleague.
A second example of how the law is used in a retaliatory manner is the current prosecution of Edward Snowden.
Snowden, a former computer intelligence consultant and whistleblower, leaked highly classified 9,000 to 10,000 documents related to the National Security Agency's widespread surveillance program in 2013, beginning with The Guardian.
Among the NSA secrets leaked by Snowden was a court order that compelled telecommunications company Verizon to turn over metadata (such as numbers dialed and duration of calls) for millions of its subscribers. Soon after, many news outlets published the information from the documents, including the New York Times and Washington Post.
The Department of Justice charged Snowden with violating the Espionage Act. Snowden was then given asylum by Russia and recently was given permanent residency by Russia. However, he could be prosecuted under the charges if he returns to the United States.
The third and final example of how the Espionage Act is used in a retaliatory manner is the prosecution of Julian Assange. The complete case of Julian Assange is explained in this article published months ago.
Without going into further details, In May 2019, a federal grand jury in Virginia indicted Julian Assange on 17 counts of violation of the Espionage Act for receiving and publishing classified documents through WikiLeaks. In reality, Assange is being charged because he exposed war crimes committed by the United States’ military in both Iraq and Afghanistan.
Assange is currently staying at the UK Belmarsh prison outside of London, where he is continuing to fight extradition to the US. If extradited, Assange could be tried and face a potential sentence of 175 years. If Assange is found guilty, this has implications where mainstream U.S. media publications could be also found guilty for publishing classified materials.
Overall, the Espionage Act is used by the US government to avoid punishment for its own actions at home and abroad. The three people listed were never agents of a foreign government. The press serves the people, not the government.
The views expressed in the journal are their own and not the view of The La Raza Pre Law.
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