Tuesday, June 25, 2013

On the crime of impeding the executive in time of war

This headline -- The Espionage Act of 1917 Should Never Be Enforced -- on a Scott Lemieux post at Lawyers, Guns and Money -- sent me scurrying to look up more about the law in question, under which the government is charging our current leakers of spook secrets, Bradley Manning and Edward Snowden.

Geoffrey Stone's enormous Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism describes at length how the law came into being. In 1917, President Woodrow Wilson knew he was going to have trouble assembling support for a faraway war in Europe against Germany, the country from which 25 percent of newer immigrants to the United States had migrated. He asked for draconian powers to suppress dissent, including press censorship, a ban on incitement to "disaffection" with recruitment and mobilization for the war, and a power for the postmaster general to refuse use of the mails to dissenters. Congress balked; defeated the press censorship section; and watered down the "disaffection" and "non mailability" provisions in what was called the Espionage Act.

Note that the legislation turned out be about not what we think of as spying (espionage), but about the crime of impeding the executive power in time of war.

And so the law was employed during the First World War. Government propagandists spread atrocity stories about German war crimes and enemies within. Several thousand people were jailed for such offenses as objecting that young working men were being sent to fight for U.S. capitalist fat cats. War fever was essential to national mobilization and people of German origin and socialist war opponents had to suffer if they wouldn't bend to the patriotic fever storm.

After the war, US judges and leaders recognized that the war time repression of speech had constituted a breach of national aspirations toward liberty. Most of the dissenters who had been given decades long jail terms were freed. A companion Sedition Act was repealed; but the Espionage Act stayed on the books.

Stone sums up his discussion of the era this way; it is interesting in light of current developments.
The responsibility for what occurred during World War I rests less with the Congress that enacted the Espionage Act of 1917 than with the Wilson administration, which sought to exploit and manipulate public opinion; the Department of Justice, which may have meant well but too often lacked the authority and the discipline to fulfill its aspirations; … the federal judiciary, which rashly interpreted and applied the law…; the state and local officials who failed to protect dissenters; the [war time] Congress that enacted the [additional] Sedition Act of 1918; and the Supreme Court justices, who strained to excuse the government's actions. [The jurist] Harry Kalven has rightly described the Court's performance in this era as "simply wretched."
On the morning when we learn that the current Supreme Court has "disemboweled" (Lemieux again) the Voting Rights Act, it is easy to fear that our court may also prove "simply wretched" in relation to the government's current Espionage Act prosecutions.

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