FacebookTwitterRedditEmail

Authoritarian Spirits: Congress, the Espionage Act and Punishing WikiLeaks

Blessed are the Peacemakers by George Bellows, The Masses 1917

The time was 1917, and for anyone keen to impress us about any liberal feelings on the part of President Woodrow Wilson, the following should be said. Having deemed the United States too proud to fight, he proceeded to commit the very same to the first global industrial conflict of its kind and overturn every reservation against backing the Franco-German alliance. Initial constipation and weary restraint gave way to a full-blooded commitment against Kaiserism.

In doing so, the nasty instrument known as the Espionage Act of 1917 came into being, a product of disdain in the face of the First Amendment’s solemn words that “Congress shall make no law… abridging the freedom of speech, or of the press.”

The Espionage Act, also known as 18 USC 793, has been a bother to a good number in the legal profession. It was, according to Charles P. Pierce, “the immortal gift of that half-nutty professor, Woodrow Wilson, and his truly awful attorney general, A. Mitchell Palmer.” Even then, Wilson was disappointed, given that the final document was somewhat more diluted from its initial concentrate featuring wide-ranging press censorship and the targeting of anarchists.

In the words of law academic Stephen Vladeck, the law “draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defence information that by that point is already in the public domain.”

The overstretch with prosecuting Julian Assange is comprehensible, in so far as security concerns are a psychosis, a junkie’s fascination with secrecy. Applied to Chelsea Manning in 2011, it led to the imposition of a 35-year sentence that was subsequently commuted. The superseding indictment against Assange and WikiLeaks goes even further in in its inventive paranoia, seeking to implicate the publisher as instigator and, effectively, the entire process of distribution. Seek, receive, and be damned.

While Assange will never fit neatly into any categories of obedience and observance, the crude scope, and motivation behind the use of the Espionage Act, remains. The descriptions in the immediate aftermath of the law’s passage are worth nothing. In October 1918, Wisconsin Senator Robert La Follette rose to proclaim that, “Today and for weeks past honest and law-abiding citizens of this country are being terrorized and outraged in their rights by those sworn to uphold the laws and protect the rights of the people.” The senator spoke of a state of unnecessarily wild and zealous policing. Unlawful arrests had been perpetrated; people thrown into jail had been “held incommunicado for days, only to be eventually discharged without even having been taken to court, because they have committed no crime.”

The Espionage Act was not used sparingly, becoming a weapon of choice to criminalise efforts to obstruct the war effort with mere words. Elizabeth Baer and Charles Schenck were some of the first notable targets, accused of mailing some 15,000 anti-war flyers to potential conscripted recruits urging peaceful disobedience.

On appeal to the Supreme Court, the First Amendment was shorn in a palpable trimming of civil liberties. In its place was the modifying “clear and present danger” test, showing that the courts were, even more than Congress, keen to impute severe intentions on how broad the Espionage Act was meant to be. (Indeed, most senators had to admit they had little clue on what the provisions of the Act actually meant.)

In the words of Justice Oliver Wendell Holmes, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Rather grimly, the judicial bench made the all too willing concession to the urges of the warring state. “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.”

Other socialist activists of the form and determination of Kate Richards O’Hare also fell foul of the law, being sentenced to five years for violating its provisions. Socialist party members C.E. Ruthenberg, A. Wagenknecht and Charles Baker also faced prison terms for aiding and abetting those failing to register for the draft.

One of the most notorious victims of the Espionage Act was the leading founding member of the Socialist Party of America, Eugene V. Debs. Debs found himself in prison as a result, having given a public speech inciting his audience to interfere with military recruitment whilst referring to the harsh fate of his fellow socialist activists. His assessment of the situation was appropriately brave. “I would rather a thousand times be a free soul in jail than to be a sycophant and coward in the streets.”

On appeal, the US Supreme Court affirmed, in a unanimous opinion delivered by the persistently unsympathetic Justice Holmes, the harsh line it had taken in Schenck. Debs’s sympathy for individuals opposing the draft and interfering with the recruitment process was punishable and beyond the scope of protection. The speech, even if did mention socialism interspersed with a range of other observations, was “not protected by reason of its being part of a general program and expressions of a general and conscientious belief.” Quibbling be thy name.

While the United States is currently not officially at war, it can hardly be said to be at peace. Engaged in low, slow burning conflicts on several continents, the US imperium continues its warring peace endeavours with a certain insatiability. The case against Assange is an attempt to internationalise the punishment of those who would dare publish, write or discuss matters at the heart of what Gore Vidal did title, with much sorrow, the National Security State. But as Senator La Follette observed with steely warning, taking aim at the Espionage Act, “More than in times of peace it is necessary that the channels for free public discussion of governmental policies shall be open and unclogged.”

 

More articles by:

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

July 01, 2020
Melvin Goodman
De-Militarizing the United States
Kenneth Surin
UK’s Labour Leader Sacks the Most Left-Wing Member of His Shadow Cabinet
Ruth Fowler
Then as Farce: the Commodification of Black Lives Matter
Kent Paterson
Crisis After Crisis on the Border
Rick Baum
The Pandemic and Wealth Inequality
Michael Welton
“Into the World of Bad Spirits”: Slavery and Plantation Culture
James W. Carden
The Return of the Anti-Antiwar Left
Dan Wakefield
Charles Webb Enters Heaven
Julian Vigo
A Call for Radical Humanism: the Left Needs to Return to Class Analyses of Power
Binoy Kampmark
A Trendy Rage: Boycotting Facebook and the Stop Hate for Profit Campaign
Michael D. Knox – Linda Pentz Gunter
As Monuments to War Generals Come Down, Let’s Replace Them with Monuments to Peace
Cesar Chelala
Attorney General William Barr’s Insomnia
Raphael Tsavkko Garcia
Is Bolsonaro Plotting a Self-Coup?
Mandy Smithberger
COVID-19 Means Good Times for the Pentagon
Joe Emersberger
On Pablo Celi, Ecuador’s super shady “Auditor General”
June 30, 2020
James Bovard
Bill Clinton’s Serbian War Atrocities Exposed in New Indictment
Bianca Sierra Wolff – Lisa Knox
ICE is Leaving Immigrants to Die in Detention, and Retaliating When They Speak Out
Don Fitz
Should NYC’s Wall Street Be Renamed “Eric Garner St.?”
Chris Hedges
My Student Comes Home
Richard C. Gross
Obamacare Vulnerable
John Feffer
The Hatchet Man’s Tale: Why Bolton Matters
Thomas Knapp
Afghanistan Bounties: Pot, Meet Kettle (and Turn Off the Stove!)
Charles Reitz
Anti-Racist Engagement in the Kansas Free State Struggle, 1854-64: Horace Greeley, German 48-ers, and the Civil War Journalism of Karl Marx, 1861-62
Howard Lisnoff
A Student Murdered in Cold Blood and a Kids’ Bike Ride Through Queens, New York
David Swanson
Hey Congress, Move the Money
Aparna Karthikeyan
Memories of Pox, Plague, and Pandemics in Tamil Nadu
John Kendall Hawkins
Democracy Chasers in a Badly Injured Nation
Binoy Kampmark
Wasteful, Secret and Vicious: the Absurd Prosecution of Witness K and Bernard Collaery
Norman Solomon
Ro Khanna and Barbara Lee Could Defy “the Madness of Militarism” as Co-Chairs of the Democratic Convention’s Biggest Delegation
Jon Hochschartner
Imagining a Vegan Superman
Arianna Amehae
ESPN to Follow “Somebody’s Daughter” in Bringing International Attention to the Missing and Murdered Indigenous Women Tragedy
CounterPunch News Service
An Osprey Forest in Humboldt County is Being Defended by Treesiters
June 29, 2020
Patrick Cockburn
The Blundering British Political Class has Shown the Same Incompetence in Both Fighting Wars and Coronavirus
Robert Hunziker
Arctic Heat Overwhelms Green Infighting Issues
Kathy Kelly
Battleground States
Eileen Appelbaum
The Pandemic Shows the Importance of Funding Early Childcare and Education Infrastructure
Gregory Elich
Will South Korea’s Moon Defy Trump and Improve Relations with North Korea?
Dean Baker
On the Recession, Stimulus and Economic Recovery
Sam Pizzigati
Defund the CEOs
Mitchel Cohen
Bolton and the Pandemic
Paul A. Passavant
Protest and the Post-Legitimation State
Ralph Nader
Congress Must Hold President Trump Accountable!
George Wuerthner
Missouri River Breaks: How BLM Neglect Threatens a Wild and Scenic River and National Monument
John Feffer
The De-Trumpification of America
Christopher Brauchli
Great Minds Think Alike: Bolsonaro and Trump
FacebookTwitterRedditEmail