The Sun Never Sets on the Espionage Act

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Chelsea Manning is back in prison. Although the women’s wing of the federal detention center in Alexandria, Virginia will probably be more tolerable than Manning’s seven traumatic years in marine and military prisons across the United States, her ongoing ordeal tells us a lot about the long life of bad laws.

The Espionage Act was signed by President Woodrow Wilson on June 15, 1917. Wilson had broken an election promise that April by asking Congress to approve American entry into Europe’s “Great War.” “We have no selfish ends to serve,” he claimed.

Congress not only obliged, but promptly promised unwavering support. After less than three weeks, the Espionage Act was proposed, mainly as a measure to stamp out resistance to conscription.

By the standards of post-9/11 Congressional action — when legislators took just one week to pass the Authorization for the Use of Military Force resolution — the World War I lawmakers were paragons of patience and sober thinking. They didn’t just take more time to pass the legislation — they even debated it, choosing to water down initial drafts that permitted wide latitude for suppression of the press. (These debates are well-documented in Geoffrey Stone’s Perilous Times.)

To be sure, a hasty “Sedition” provision was added less than a year later, in order to protect the government from “scurrilous” and “profane” verbal attacks, but the process was otherwise proper. There were no wild assertions of executive power, no declarations of martial law, no internment camps, and no Guantanamos.

Nevertheless, the results of the Espionage Act were clear: Overzealous prosecutors nationwide — not to mention Wilson’s Justice Department — had an invitation to silence their critics. And silence they did, with a spirit captured by Attorney-General Thomas Gregory’s message to dissenters: “May God have mercy on them, for they need expect none from an outraged people and an avenging government.”

At least a thousand people were arrested under the initial version of the Espionage Act, and three thousand more under the “Sedition” provision. First Amendment defenses were breezily dismissed by the Supreme Court.

A Loaded Weapon

In theory, democracies are only supposed to suspend civil liberties when faced with an urgent crisis. When the crisis ends, so should any emergency restrictions. This legacy goes back to the Roman Constitution, which provided for a time-bound “Dictatorship” if the republic’s survival was at stake. Farmer-soldier Cincinnatus famously took up this role twice in the 5th Century BCE, leading Rome to victory before returning to his day job.

No one repealed the Espionage Act after WWI, but — for decades — no one really used it either. Other, more exciting tools became available as the 20th century progressed: a National Security Agency, a Federal Bureau of Investigation, a Central Intelligence Agency — all massive, well-financed bureaucracies that Congress rarely bothered to keep tabs on.

However, few political leaders can resist a loaded weapon.

Richard Nixon’s ammunition lay in two sub-sections (1d and 1e) of the Act punishing the disclosure of classified information. The difficulty came in applying this to Daniel Ellsberg, whose leak of the Pentagon Papers exposed a blazing trail of official lies about the Vietnam War. Ellsberg gave the papers to American journalists, rather than foreign governments — far from any conventional understanding of “espionage.” Nixon pursued him anyway, but amid rebukes from the Supreme Court and the escalation of the Watergate Scandal, the administration eventually backed down.

The Obama Administration

The same cannot be said of our most recent constitutional law professor-turned-president. None of the record-breaking eight Espionage Act targets of the Obama Administration were accused of actual spying. Chelsea Manning gave classified information to WikiLeaks, Jeffrey Sterling to The New York Times, Stephen Jin-Woo Kim to Fox, Edward Snowden initially to The Guardian.

Defenders of Obama contend — without much concrete evidence — that these leaks pose a national security threat. The logic behind such arguments is often extremely weak: Terrorists, apparently, didn’t know we were collecting their metadata before, and now —  Thanks a lot, Snowden! — they’ll be more cunning.

In any case, the debate about leaks almost misses the point.

Deeper questions are at stake here. Why are we exhuming legislation from a hysterical and shameful era for civil liberties? In a democratic republic, shouldn’t we be using peacetime laws to constrain us during war, rather than wartime laws to constrain us during (relative) peace?

The Limits of a Process Critique

The life of the Espionage Act is, in some sense, a challenge to those who blame our problems on process, especially an imbalance of power between Congress and the president (I have made such arguments myself). So often, criticisms of American foreign policy and its domestic consequences bemoan a lack of congressional oversight, energy, and interest. Yet in some ways, thoughtful legislation can create more lasting problems than clumsy executive actions.

Contrast, for instance, the longevity of the Espionage Act with the wartime measures of the Lincoln Administration — suspension of habeas corpus, nationwide martial law, suppression of newspapers. These actions were sharp, drastic, and chaotic, but they were also dismantled once the war ended.

Of course, this executive unilateralism sets dangerous precedents, and is surely more damaging when exercised by today’s super-charged presidency. However, the underlying point stands: A patient and proper process of legislative debate doesn’t necessarily protect us from future abuses of power. It may even make things worse.

Don’t Count on Sunsets

Some observers have recommended the remedy of “sunset clauses”: automatic expiry dates built into emergency laws. Michael Ignatieff, for instance, commends Britain’s 1974 Prevention of Terrorism (Temporary Provisions) Act. The act, passed in response to the Birmingham pub bombings of that year, was described by its principal drafter as “draconian,” but Parliament’s fears were successfully allayed by a requirement of annual legislative renewal.

However, year-by-year, the act was extended without hesitation or serious debate, before being replaced by the more expansive and permanent Terrorism Act of 2000. The sunset clauses of the USA PATRIOT Act have gone much the same way, with routine rubber-stamping of extensions continuing until the mild reforms of 2015 — which, it’s worth noting, only happened because of Edward Snowden.

In short, we can make all the elegant tweaks in all the relevant sub-sections, but temporary restrictions on civil liberties have a stubborn habit of becoming permanent.

And so, we are now left with the most authoritarian-minded president in living memory armed with a swift, convenient, and sweeping tool of repression. Reality Winner and Julian Assange appear to be the only targets so far. But the weapon is fully loaded — and held in very dangerous hands.

 

Harry Blain is a PhD student in political science at the Graduate Center, CUNY (City University of New York).