In the United States, the Espionage Act is the judicial boundary between loyalty and disloyalty to country.
It isn’t controversial to consider aiding a foreign adversary as a universally a gross betrayal against ones nation. However, that isn’t to say that the Espionage Act was not met with resistance in its infancy – both from the American public sphere, all the way to the highest court in the land.
In 1917, the United States entered World War I, a conflict on a scale never seen in human history. The cultural zeitgeist at the time was not entirely patriotic. Ideologies such as socialism, anarchism, and pacifism were being evangelized within the population.
This presented a conflict of interest. Government propaganda – then called “public relations” – was disseminated to the population. A call for the nation to unify and support the war effort sounded. Likewise, warnings were given about disloyalty to nation, and the Germans were portrayed as the enemy of the people.
The US population was divided on the idea nation joining a foreign war that had seemingly little impact on the homeland. And so, administration of President Woodrow Wilson determined drastic measures needed to occur, in order to prevent the scourge of low morale in a time of war.
The Espionage Act of 1917
President Wilson asked, and the 65th United States Congress made it happen.
By his request, and the approval of Congress, The Espionage Act of 1917 was passed on the 15th of June that year; a mere couple of months after the US entered World War I. Although Wilson intended for the Act to apply to all American citizens, domestic populations of native-born Germans were specifically mentioned in a presidential war message to Congress, being referred as possible sympathizers towards their homeland.
The official text of the Espionage Act of 1917 is broken into nine sections, with sections one and two containing subsections that cover specific infractions, as well as the repercussions, ranging from fines and imprisonment to a death sentence.
Violations of the act are the use of information to aid or give advantage to a foreign nation, involving national defence, for the sake of injury to the United States. A selection of examples include:
- Obtaining information concerning any “vessel, aircraft, work of defence, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, building, office, or other place connected with the national defence, owned or constructed, or in progress of construction by the United States”
- Attempting to “copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing or note” (related to national defence)
- Unlawfully having “possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note” (related to national defence)
Furthermore, postmasters were also empowered under the act. According to the History Channel: “The law gave the U.S. Postmaster General the authority to block the mailing of any letter, pamphlet or book seen as opposing or questioning America’s military involvement in World War I.”
This allowed for tighter control over newspapers and magazines that could spread rhetoric counter-productive to the war effort, as well as penalize anyone who tried to obstruct the national draft.
The Espionage Act vs. the United States Constitution
Times of uncertainty, fear or tragedy often results in reactionary policy implementation. In such situations, human nature has its way of elevating emotional and impulsive thinking. Sometimes well-intended, oftentimes with negative consequences.
It is common knowledge that the US governments checks and balance system is a time-tested failsafe to protect American citizens from a potentially tyrannical ruler or administration. Freedom of speech is a protected right under the bulwark of the Constitution, which erected questions as to the legality of the Espionage Act of 1917.
In 1919, a landmark First Amendment case reached the Supreme Court – Schenck v. United States. It had its sights set on challenging the Espionage Act and is now considered one of the most historic and controversial First Amendment rulings in court history.
The facts of the case state:
“During World War I, socialists Charles Schenck and Elizabeth Baer distributed leaflets declaring that the draft violated the Thirteenth Amendment prohibition against involuntary servitude. The leaflets urged the public to disobey the draft, but advised only peaceful action. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment.”
American’s are privy to imagine the First Amendment covering all speech, including Schenck and Baer’s right to distribute leaflets in rebellion against the war effort. When a free speech case reaches the Supreme Court, however, the judicial philosophies and constitutional interpretations of individual justices can result in unexpected case outcomes. “The young man knows the rules, but the old man knows the exceptions”, as said by Supreme Court Justice Oliver Wendell Holmes.
Holmes was a member of the court during Schenck v. United States, and the author of the case opinion. On the 3rd of March 1919 the court unanimously voted against Schenck, stating that the Espionage Act of 1917 was constitutional and not in violation of the First Amendment.
Apart from the ruling, a significant outcome of the case was the establishment of the “clear and present danger test”. As stated by Holmes:
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.”
And so, the Espionage Act of 1917 survived its day in court, and entered its own battle of attrition over the years against individuals and cases that have violated and challenged it.
The Espionage Act & the Pentagon Papers
Another First Amendment battle featuring the Espionage Act of 1917 took place in the height of the Vietnam War.
In 1967, Defense Secretary Robert McNamara was facing a conundrum. American support for the Vietnam War was detrimentally low, and the communist Vietnamese were managing to circumnavigate everything the US war machine threw at them. Victory, whatever it was supposed to entail, was far from near. McNamara wanted answers.
By his directive, an investigation into the Vietnam war took place, and thus the Pentagon Papers were drafted; a comprehensive top secret report containing over 7,000 pages of documents and analysis, according to the Washington Post.
Daniel Ellsberg was a defense analyst and Marine Corp veteran who fulfilled various roles within the private and government sector upon departure from the service. His skills in defense analysis brought him onto the team at the RAND Corporation conducting the research and development of the Pentagon Papers. Truth be told, he did not like what he saw.
In Ellsberg’s own words:
“I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.”Daniel Ellsberg
The conscious-driven unwillingness to conceal the documents resulted in Ellsberg, along with a RAND Corporation colleague making copies of their entirety, which they then leaked to the New York Times.
As one could guess, that didn’t look so good for the Nixon administration. And as one could also guess, the Nixon administration took it personally.
Ellsberg was eventually outed as a co-conspirator in the leaks and charged underneath the Espionage Act of 1917, charges that were eventually dropped, partially due to government misconduct underneath the direction of President Nixon.
The leaks also resulted in another historic First Amendment Supreme Court case: New York Times Co v. The United States.
New York Times Co v. United States digresses from the Espionage Act, and instead challenged the legality of media printing sensitive government documents. This case established important judicial precedence in the future, both for freedom of the press and further clarity over prior restraint.
The Act in the 21st Century
The Espionage Act of 1917 lives on today.
Modern violations of the Act are not widespread, but some reputable incidents indicative of the Pentagon Paper leaks have still occurred.
Individuals like Julian Assange, Edward Snowden, and Chelsea Manning have become household names for their highly publicized and damning leaks exposing controversial government actions. They, among others, have continued to give lifeblood to the Espionage Act, which shows no real signs of changing. Or at least yet…
The term “unprecedented” has been used ad nauseum in times of late, as the world has faced challenges in ways unique to humanity. The now concluded Global War on Terror ushered in a new age of government surveillance and secrecy, some of which was exposed by the above-mentioned figures and other notable leaks (I.E. Blue Leaks)
Some individuals with access to national security information may feel empowered to replicate the work started by high-profile whistleblowers. Citizens sympathetic to the goals of America’s foreign adversaries, such as Russia or China, may find their way into the right places where they can commit acts of espionage to aid the enemy and injure the state.
And of course, there lies the unique problems within the digital age. Paper documents are out, cloud storage is in, and there is no shortage of black hat hacking groups attempting to penetrate vulnerable government systems and start opening clearance locked doors.
With those threats being a reality, there is undoubtedly a need for the Espionage Act in 21st century America. Failure to hold bad actors accountable for blatant disloyalty to country is unacceptable, albeit in some cases, like the one of Snowden, swimming in a bit of a grey area.
The checks and balances system of the US government will put a leash on the Espionage Act, if it needs future reform. But until then, the consequences of treason will remain.