Espionage Act of 1917

Espionage Act of 1917
Great Seal of the United States
Long title An Act to punish acts of interference with the foreign relations, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes.
Enacted by the 65th United States Congress
Effective June 15, 1917
Citations
Public law Pub.L. 65–24
Statutes at Large 40 Stat. 217
Legislative history
  • Introduced in the House as H.R. 291
  • Passed the House on May 4, 1917 (261–109)
  • Passed the Senate on May 14, 1917 (80–8)
  • Signed into law by President Woodrow Wilson on June 15, 1917
United States Supreme Court cases
Schenck v. United States

The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War) but is now found under Title 18, Crime. Specifically, it is 18 U.S.C. ch. 37 (18 U.S.C. § 792 et seq.)

It was intended to prohibit interference with military operations or recruitment, to prevent insubordination in the military, and to prevent the support of U.S. enemies during wartime. In 1919, the U.S. Supreme Court unanimously ruled through Schenck v. United States that the act did not violate the freedom of speech of those convicted under its provisions. The constitutionality of the law, its relationship to free speech, and the meaning of its language have been contested in court ever since.

Among those charged with offences under the Act are German-American socialist congressman and newspaper editor Victor Berger, labour leader and four time Socialist Party of America candidate, Eugene V. Debs, anarchists Emma Goldman and Alexander Berkman, former Watch Tower Bible & Tract Society president Joseph Franklin Rutherford, communists Julius and Ethel Rosenberg, Pentagon Papers whistleblower Daniel Ellsberg, Cablegate whistleblower Chelsea Manning, and NSA contractor and whistleblower Edward Snowden. Rutherford's conviction was overturned on appeal.[1] Although the most controversial sections of the Act—a set of amendments commonly called the Sedition Act of 1918—were repealed on March 3, 1921, the original Espionage Act was left intact.[2]

Enactment

The Espionage Act of 1917 was passed, along with the Trading with the Enemy Act, just after the United States entered World War I in April 1917. It was based on the Defense Secrets Act of 1911, especially the notions of obtaining or delivering information relating to "national defense" to a person who was not "entitled to have it", itself based on an earlier British Official Secrets Act. The Espionage Act law imposed much stiffer penalties than the 1911 law, including the death penalty.[3]

President Woodrow Wilson in his December 7, 1915 State of the Union address asked Congress for the legislation:[4]

There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue ...

I urge you to enact such laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. They are not many, but they are infinitely malignant, and the hand of our power should close over them at once. They have formed plots to destroy property, they have entered into conspiracies against the neutrality of the Government, they have sought to pry into every confidential transaction of the Government in order to serve interests alien to our own. It is possible to deal with these things very effectually. I need not suggest the terms in which they may be dealt with.

Congress moved slowly. Even after the U.S. broke diplomatic relations with Germany, when the Senate passed a version on February 20, 1916, the House did not vote before the then-current session of Congress ended. After the declaration of war in April 1917, both houses debated versions of the Wilson administration's drafts that included press censorship.[5] That provision aroused opposition, with critics charging it established a system of "prior restraint" and delegated unlimited power to the president.[6] After weeks of intermittent debate, the Senate removed the censorship provision by a one-vote margin, voting 39 to 38.[7] Wilson still insisted it was needed: "Authority to exercise censorship over the press....is absolutely necessary to the public safety", but signed the Act without the censorship provisions on June 15, 1917,[8] after Congress passed the act on the same day.[9]

Attorney General Thomas Watt Gregory supported passage of the act, but viewed it as a compromise. The President's Congressional rivals were proposing to remove responsibility for monitoring pro-German activity, whether espionage or some form of disloyalty, from the Department of Justice to the War Department and creating a form of courts-martial of doubtful constitutionality. The resulting Act was far more aggressive and restrictive than they wanted, but it silenced citizens opposed to the war.[10] Officials in the Justice Department who had little enthusiasm for the law nevertheless hoped that even without generating many prosecutions it would help quiet public calls for more government action against those thought to be insufficiently patriotic.[11] Wilson was denied language in the Act authorizing power to the executive branch for press censorship, but Congress did include a provision to block distribution of print materials through the Post Office.[3]

It made it a crime:

The Act also gave the Postmaster General authority to impound or to refuse to mail publications that he determined to be in violation of its prohibitions.[12]

The Act also forbids the transfer of any naval vessel equipped for combat to any nation engaged in a conflict in which the United States is neutral. Seemingly uncontroversial when the Act was passed, this later became a legal stumbling block for the administration of Franklin Delano Roosevelt, when he sought to provide military aid to Great Britain before the United States entered World War II.[13]

Amendments

The law was extended on May 16, 1918, by the Sedition Act of 1918—actually a set of amendments to the Espionage Act—which prohibited many forms of speech, including "any disloyal, profane, scurrilous, or abusive language about the form of government of the United States...or the flag of the United States, or the uniform of the Army or Navy".[10]

Because the Sedition Act was an informal name, court cases were brought under the name of the Espionage Act, whether the charges were based on the provisions of the Espionage Act or the provisions of the amendments known informally as the Sedition Act.

On March 3, 1921, the Sedition Act amendments were repealed, but many provisions of the Espionage Act remain, codified under U.S.C. Title 18, Part 1, Chapter 37.[14]

In 1933, after signals intelligence expert Herbert Yardley published a popular book about breaking Japanese codes, the Act was amended to prohibit the disclosure of foreign code or anything sent in code.[15] The Act was amended in 1940 to increase the penalties it imposed, and again in 1970.[16]

In the late 1940s, the U.S. Code was re-organized and much of Title 50 (War) was moved to Title 18 (Crime). The McCarran Internal Security Act added 18 U.S.C. § 793(e) in 1950 and 18 U.S.C. § 798 was added the same year.[17]

In 1961, Congressman Richard Poff succeeded after several attempts in removing language that restricted the Act's application to territory "within the jurisdiction of the United States, on the high seas, and within the United States" 18 U.S.C. § 791. He said the need for the Act to apply everywhere was prompted by the Scarbeck case, in which a State Department official was charged with yielding to blackmail threats in Poland.[18]

Proposed amendments

In 1989, Congressman James Traficant tried to amend 18 U.S.C. § 794 to broaden the application of the death penalty.[19] Senator Arlen Specter proposed a comparable expansion of the use of the death penalty the same year.[20] In 1994, Robert K. Dornan proposed the death penalty for the disclosure of a U.S. agent's identity.[21]

History

World War I

Blessed are the Peacemakers by George Bellows, The Masses 1917
Wikisource has original text related to this article:

Much of the Act's enforcement was left to the discretion of local United States Attorneys, so enforcement varied widely. For example, Socialist Kate Richards O'Hare gave the same speech in several states, but was convicted and sentenced to a prison term of five years for delivering her speech in North Dakota. Most enforcement activity occurred in the Western states where the Industrial Workers of the World was active.[22] Finally Gregory, a few weeks before the end of the war, instructed the U.S. Attorneys not to act without his approval.

A year after the Act's passage, Eugene V. Debs, Socialist Party presidential candidate in 1904, 1908, and 1912 was arrested and sentenced to 10 years in prison for making a speech that "obstructed recruiting". He ran for president again in 1920 from prison. President Warren G. Harding commuted his sentence in December 1921 when he had served nearly five years.[23]

In United States v. Motion Picture Film (1917), a federal court upheld the government's seizure of a film called The Spirit of '76 on the grounds that its depiction of cruelty on the part of British soldiers during the American Revolution would undermine support for America's wartime ally. The producer, Robert Goldstein, a Jew of German origins, was prosecuted under Title XI of the Act, and received a ten-year sentence plus a fine of $5000. The sentence was commuted on appeal to three years.[24]

Postmaster General Albert S. Burleson and those in his department played critical roles in the enforcement of the Act. He held his position because he was a Democratic party loyalist and close to both the President and the Attorney General. At a time when the Department of Justice numbered its investigators in the dozens, the Post Office had a nationwide network in place. The day after the Act became law, Burleson sent a secret memo to all postmasters ordering them to keep "close watch on ... matter which is calculated to interfere with the success of ... the government in conducting the war".[25] Postmasters in Savannah, Georgia, and Tampa, Florida, refused to mail the Jeffersonian, the mouthpiece of Tom Watson, a southern populist, an opponent of the draft, the war, and minority groups. When Watson sought an injunction against the postmaster, the federal judge who heard the case called his publication "poison" and denied his request. Government censors objected to the headline "Civil Liberty Dead".[26] In New York City, the postmaster refused to mail The Masses, a socialist monthly, citing the publication's "general tenor". The Masses was more successful in the courts, where Judge Learned Hand found the Act was applied so vaguely as to threaten "the tradition of English-speaking freedom". The editors were then prosecuted for obstructing the draft and the publication folded when denied access to the mails again.[27] Eventually, Burleson's energetic enforcement overreached when he targeted supporters of the administration. The President warned him to exercise "the utmost caution" d the dispute proved the end of their political friendship.[28]

In May 1918, sedition charges were laid under the Espionage Act against Watch Tower Bible and Tract Society president "Judge" Joseph Rutherford and seven other Watch Tower directors and officers over statements made in the society's book, The Finished Mystery, published a year earlier. The book had claimed that patriotism was a delusion and murder and the officers were charged with attempting to cause insubordination, disloyalty, refusal of duty in the armed forces and obstructing the recruitment and enlistment service of the U.S. while it was at war.[29] The book had been banned in Canada since February 1918 for what a Winnipeg newspaper described as "seditious and antiwar statements"[30] and described by Attorney General Gregory as dangerous propaganda.[31] On June 21 seven of the directors, including Rutherford, were sentenced to the maximum 20 years' imprisonment for each of four charges, to be served concurrently. They served nine months in the Atlanta Penitentiary before being released on bail at the order of Supreme Court Justice Louis Brandeis. In April 1919 an appeal court ruled they had not had the "intemperate and impartial trial of which they were entitled" and reversed their conviction.[32] In May 1920 the government announced that all charges had been dropped.[33]

Red Scare, Palmer Raids, mass arrests, deportations

The house of Attorney General Palmer after being bombed by anarchists in 1919

During the Red Scare of 1918–19, in response to the 1919 anarchist bombings aimed at prominent government officials and businessman, U.S. Attorney General A. Mitchell Palmer, supported by J. Edgar Hoover, then head of the Justice Department's Enemy Aliens Registration Section, used the Sedition Act of 1918, which extended the Espionage Act to cover a broader range of offenses, to deport several hundred foreign-born in the U.S., including Emma Goldman, to the Soviet Union on a ship the press called the "Soviet Ark".[3][34][35]

A version of Chafee's "Free Speech in War Times", the work that helped changed Justice Holmes' mind

Many of the jailed challenged their convictions based on the U.S. constitutional right to free speech. The Supreme Court disagreed. The Espionage Act limits on free speech were ruled constitutional in the United States Supreme Court case Schenck v. United States, 249 U.S. 47 in 1919. Schenck, an anti-war Socialist, had been convicted of violating the Act when he sent anti-draft pamphlets to men eligible for the draft. Although Supreme Court Justice Oliver Wendell Holmes joined the Court majority in upholding Schenck's conviction in 1919, he also introduced the theory that punishment in such cases is limited to political expression that constitutes a "clear and present danger" to the government action at issue. Holmes' opinion is also the origin of the notion that speech equivalent to "falsely shouting fire in a crowded theater" is not protected by the First Amendment.

Justice Holmes began to doubt his decision due to criticism received from free speech advocates. He also met the Harvard Law professor Zechariah Chafee and discussed his criticism of Schenck.[35][36]

Later in 1919, in Abrams v. United States, the Supreme Court upheld the conviction of a man who distributed circulars in opposition to American intervention in Russia following the Russian Revolution. The concept of bad tendency was used to justify the restriction of speech. The defendant was deported. Justices Holmes and Brandeis, however, dissented, with Holmes arguing that "nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so."[35][37]

In March 1919, President Wilson, at the suggestion of Attorney General Thomas Watt Gregory, pardoned or commuted the sentences of some 200 prisoners convicted under the Espionage Act or the Sedition Act.[38] By the end of 1920, the Red Scare had faded, Palmer left government, and the Espionage Act fell into relative disuse.

World War II

Prosecutions under the Act were far less numerous during World War II than they had been during World War I. Associate Justice Frank Murphy noted in 1944 in Hartzel v. United States that "For the first time during the course of the present war, we are confronted with a prosecution under the Espionage Act of 1917." Hartzel, a World War I veteran, had distributed anti-war pamphlets to associations and business groups. The court's majority found that his materials, though comprising "vicious and unreasoning attacks on one of our military allies, flagrant appeals to false and sinister racial theories, and gross libels of the President", did not urge mutiny or any of the other specific actions detailed in the Act, and that he had targeted molders of public opinion, not members of the armed forces or potential military recruits. The court overturned his conviction in a 5–4 decision. The four dissenting justices declined to "intrude on the historic function of the jury" and would have upheld the conviction.[39] In Gorin v. United States (early 1941), the Supreme Court ruled on many constitutional questions surrounding the act.[40]

The Act was used in 1942 to deny a mailing permit to Charles Coughlin's weekly Social Justice, effectively ending its distribution to subscribers. It was part of Attorney General Francis Biddle's attempt to close down what he called "vermin publications".[41][42][43] The same year, a front page story in the Chicago Tribune implied that the U.S. had broken Japanese codes, which might have prompted the Japanese to change their codes and destroy any advantage the U.S. had gained through successful cryptanalysis. The newspaper was brought before a grand jury, but proceedings were halted because of government reluctance to present a jury with highly secret information necessary to prosecute the publishers as well as concern that a trial would attract more attention to the case.[44]

In 1945, six associates of Amerasia magazine, a journal of Far Eastern affairs, came under suspicion after publishing articles that bore similarity to Office of Strategic Services reports. The government proposed using the Espionage Act against them but later softened its approach, changing the charges to Embezzlement of Government Property (now 18 U.S.C. § 641). A grand jury cleared three of the associates, two associates paid small fines, and charges against the sixth man were dropped. Senator Joseph McCarthy believed the failure to aggressively prosecute the defendants was a communist conspiracy and according to Kleht and Radosh, the case helped build his notoriety.[45]

Mid-20th century Soviet spies

Navy employee Hafis Salich sold Soviet agent Mihail Gorin information regarding Japanese activities in the late 1930s. Gorin v. United States was cited in many later espionage cases for its discussion of the charge of "vagueness" argument made against the terminology used in certain portions of the law, such as what constitutes "national defense" information.

Later in the 1940s, several incidents prompted the government to increase its investigations into Soviet espionage. These included the Venona decryptions, the Elizabeth Bentley case, the atomic spies cases, the First Lightning Soviet nuke test, and others. Many suspects were surveilled, but never prosecuted and the investigations dropped, as can been seen in the FBI Silvermaster Files. However, there were also many successful prosecutions and convictions under the Act.

In August 1950, Julius and Ethel Rosenberg were indicted under Title 50, sections 32a and 34, in connection with giving nuclear secrets to the Soviet Union. Anatoli Yakovlev was indicted as well. In 1951, Morton Sobell and David Greenglass were indicted. After a controversial trial in 1951, the Rosenbergs were sentenced to death. The sentence was carried out in 1953.[46][47][48] In the late 1950s, several members of the Soble spy ring, including Robert Soblen, and Jack and Myra Soble, were prosecuted for espionage. In the mid-1960s, the act was used against James Mintkenbaugh and Robert Lee Johnson, who sold information to the Soviets while working for the U.S. Army in Berlin.[49][50]

1948 code revision

In 1948, some portions of the United States Code were reorganized. Much of Title 50 (War and National Defense) was moved to Title 18 (Crimes and Criminal Procedure). Thus Title 50 Chapter 4, Espionage, (Sections 31–39), became Title 18, 794 and following. As a result, certain older cases, such as the Rosenberg case, are now listed under Title 50, while newer cases are often listed under Title 18.[46][51]

1950 McCarran Internal Security Act

In 1950, during the McCarthy Period, Congress passed the McCarran Internal Security Act over President Harry S. Truman's veto. It modified a large body of law, including espionage law. One addition was 793(e), which had almost exactly the same language as 793(d). According to Edgar and Schmidt, the added section potentially removes the "intent" to harm or aid requirement and may make "mere retention" of information a crime no matter what the intent, covering even former government officials writing their memoirs. They also describe McCarran saying that this portion was intended directly to respond to the case of Alger Hiss and the pumpkin papers.[17][52][53]

Judicial review, 1960s and 1970s

Brandenburg

Main article: Brandenburg v. Ohio

Court decisions of this era changed the standard for enforcing some provisions of the Espionage Act. Though not a case involving charges under the Act, Brandenburg v. Ohio (1969) changed the "clear and present danger" test derived from Schenck to the "imminent lawless action" test, a considerably stricter test of the inflammatory nature of speech.[54]

Pentagon Papers

In June 1971, Daniel Ellsberg and Anthony Russo were charged with a felony under the Espionage Act of 1917, because they lacked legal authority to publish classified documents that came to be known as the Pentagon Papers.[55] The Supreme Court in New York Times Co. v. United States found that the government had not made a successful case for prior restraint of Free Speech, but a majority of the justices ruled that the government could still prosecute the Times and the Post for violating the Espionage Act in publishing the documents. Ellsberg and Russo were not acquitted of violating the Espionage Act, but were freed due to a mistrial based on irregularities in the government's case.[56]

The divided Supreme Court had denied the government's request to restrain the press. In their opinions the justices expressed varying degrees of support for the First Amendment claims of the press against the government's "heavy burden of proof" in establishing that the publisher "has reason to believe" the material published "could be used to the injury of the United States or to the advantage of any foreign nation".

The case prompted Harold Edgar and Benno C. Schmidt, Jr. to write an article on espionage law in the 1973 Columbia Law Review. Their article was entitled "The Espionage Statutes and Publication of Defense Information". Essentially they found the law to be poorly written and vague, with parts of it probably unconstitutional. Their article became widely cited in books and in future court arguments on Espionage cases.[57]

United States v. Dedeyan in 1978 was the first prosecution under 793(f)(2) (Dedeyan 'failed to report' that information had been disclosed). The courts relied on Gorin v. United States (1941) for precedent. The ruling touched on several constitutional questions including vagueness of the law and whether the information was "related to national defense". The defendant received a 3-year sentence.[58][59]

In 1979–80, Truong Dinh Hung (aka David Truong) and Ronald Louis Humphrey were convicted under 793(a), (c), and (e) as well as several other laws. The ruling discussed several constitutional questions regarding espionage law, "vagueness", the difference between classified information and "national defense information", wiretapping and the Fourth Amendment. It also commented on the notion of bad faith (scienter) being a requirement for conviction even under 793(e); an "honest mistake" was said not to be a violation.[59][60]

1980s

Alfred Zehe, a scientist from East Germany, was arrested in Boston in 1983 after being caught in a government-run sting operation in which he had reviewed classified U.S. government documents in Mexico and East Germany. His attorneys contended without success that the indictment was invalid, arguing that the Espionage Act does not cover the activities of a foreign citizen outside the United States.[61][62] Zehe then pleaded guilty and was sentenced to 8 years in prison. He was released in June 1985 as part of an exchange of four East Europeans held by the U.S. for 25 people held in Poland and East Germany, none of them American.[63]

One of Zehe's defense attorneys claimed his client was prosecuted as part of "the perpetuation of the 'national-security state' by over-classifying documents that there is no reason to keep secret, other than devotion to the cult of secrecy for its own sake".[64]

The media dubbed 1985 "Year of the spy". U.S. Navy civilian Jonathan Pollard was charged with 18 U.S.C. § 794(c), for selling classified information to Israel. His 1986 plea bargain did not get him out of a life sentence, after a 'victim impact statement' including a statement by Caspar Weinberger.[65] Larry Wu-Tai Chin, at CIA, was charged with 18 U.S.C. § 794(c) for selling info to China.[66] Ronald Pelton was dinged for 18 U.S.C. § 794(a), 794(c), & 798(a), for selling out to the Soviets, and ruining Operation Ivy Bells.[67] Edward Lee Howard was an ex-Peace Corps and ex-CIA agent charged with 17 U.S.C. § 794(c) for allegedly dealing with the Soviets. The FBI's website says the 1980s was the "decade of the spy", with dozens of arrests.[68]

Seymour Hersh wrote an article entitled "The Traitor" arguing against Pollard's release.[69]

Morison

Samuel Loring Morison was a government security analyst who worked on the side for Jane's, a British military and defense publisher. He was arrested on October 1, 1984,[70] though investigators never demonstrated any intent to provide information to a hostile intelligence service. Morison told investigators that he sent classified satellite photographs to Jane's because the "public should be aware of what was going on on the other side", meaning that the Soviets' new nuclear-powered aircraft carrier would transform the USSR's military capabilities. He said that "if the American people knew what the Soviets were doing, they would increase the defense budget." British intelligence sources thought his motives were patriotic, but American prosecutors emphasized Morison's personal economic gain and complaints about his government job.[71]

The prosecution of Morison was used as part of a wider campaign against leaks of information as a "test case" for applying the Act to cover the disclosure of information to the press. A March 1984 government report had noted that "the unauthorized publication of classified information is a routine daily occurrence in the U.S." but that the applicability of the Espionage Act to such disclosures "is not entirely clear".[72] Time said that the administration, if it failed to convict Morison, would seek additional legislation and described the ongoing conflict: "The Government does need to protect military secrets, the public does need information to judge defense policies, and the line between the two is surpassingly difficult to draw."[72]

On October 17, 1985, Morison was convicted in Federal Court on two counts of espionage and two counts of theft of government property.[72] He was sentenced to two years in prison on December 4, 1985.[73] The Supreme Court declined to hear his appeal in 1988.[74] Morison became "the only [American] government official ever convicted for giving classified information to the press" up to that time.[75] Following a 1998 appeal for a pardon on the part of Senator Daniel Patrick Moynihan, President Bill Clinton pardoned Morison on January 20, 2001, the last day of his presidency,[75] despite the CIA's opposition to the pardon.[74]

The successful prosecution of Morison was used to warn against the publication of leaked information. In May 1986, CIA Director William Casey, without citing specific violations of law, threatened to prosecute five news organizations–The Washington Post, The Washington Times, The New York Times, Time and Newsweek.[76]

Soviet spies, late 20th century

Christopher John Boyce of TRW, and his accomplice Andrew Daulton Lee, sold out to the Soviets and went to prison in the 1970s.

In the 1980s, several members of the Walker spy ring were prosecuted and convicted of espionage for the Soviets.

In 1980, David Henry Barnett was the first active CIA officer to be convicted under the act.

In 1994, CIA officer Aldrich Ames was convicted under 18 U.S.C. § 794(c) of spying for the Russians; Ames had revealed the identities of several U.S. sources in the USSR to the KGB, who were then executed.[77]

FBI agent Earl Edwin Pitts was arrested in 1996 under 18 U.S.C. § 794(a) and 18 U.S.C. § 794(c) of spying for the Soviet Union and later for the Russian Federation.[78][79][80][81]

In 1997, senior CIA officer Harold James Nicholson was convicted of espionage for the Russians.

In 1998, NSA contractor David Sheldon Boone was charged with having handed over a 600-page technical manual to the Soviets c. 1988-1991 (18 U.S.C. § 794(a)).

In 2000, FBI agent Robert Hanssen was convicted under the Act of spying for the Soviets in the 1980s and Russia in the 1990s.

Other spies of the 1990s

*Name Agency Foreign party.[82]
Brown, Joseph Garfiel former Airman Selling info to the Philippines
Carney, Jeffrey M Air Force East Germany
Clark, James Michael, Kurt Allen Stand and Therese Marie Squillacot Govt contractors East Germany
Charlton, John Douglas Lockheed Sold info to an undercover FBI agent posing as a foreign agent
Gregory, Jeffery Eugen Army Hungary and Czechoslovakia
Groat, Douglas Frederick CIA Original espionage charges dropped to avoid disclosure at trial.
Faget, Mariano INS Cuba
The Cuban Five (Hernández, Guerrero, Labañino, González, and González) Cuba
Hamilton, Frederick Christopher DIA Ecuador.
Jenott, Eric Army charged with Espionage but acquitted.
Jenott, Eric State Department passing classified info to West African journalist Dominic Ntube
Kim, Robert Chaegu Navy South Korea
Lalas, Steven John State Greece
Lee, Peter LANL China (discussing hohlraums)
Lessenthien, Kurt Navy Russia

1990s critiques

In the 1990s, Senator Daniel Patrick Moynihan deplored the "culture of secrecy" made possible by the Espionage Act, noting the tendency of bureaucracies to enlarge their powers by increasing the scope of what is held "secret".[83]

In the late 1990s, Wen Ho Lee of Los Alamos National Laboratory (LANL) was indicted under the Act. He and other national security professionals later said he was a "scapegoat" in the government's quest to determine if information about the W88 nuclear warhead had been transferred to China. Lee had made backup copies at LANL of his nuclear weapons simulations code to protect it in case of a system crash. The code was marked PARD, sensitive but not classified. As part of a plea bargain, he pled guilty to one count under the Espionage Act. The judge apologized to him for having believed the government. Lee later won more than a million dollars in a lawsuit against the government and several newspapers for their mistreatment of him.[84]

21st century

In 2001, retired Army Reserve Colonel George Trofimoff, the most senior U.S. military officer to be indicted under the Act, was convicted of conducting espionage for the Soviets in the 1970s–1990s.[85]

Kenneth Wayne Ford Jr. was indicted under 18 U.S.C. § 793(e) for allegedly having a box of documents in his house after he left NSA employment around 2004. He was sentenced to six years in prison in 2006.[86]

In 2005, Pentagon Iran expert Lawrence Franklin, along with AIPAC lobbyists Rosen and Weissman were indicted under the Act. Franklin pleaded guilty to conspiracy to disclose national defense information to the lobbyists and an Israeli government official.[87] Franklin was sentenced to more than 12 years in prison, but the sentence was later reduced to 10 months of home confinement.[88]

Under the Obama administration, seven Espionage Act prosecutions have been related not to traditional espionage but to either withholding information or communicating with members of the media. Out of a total eleven prosecutions under the Espionage Act against government officials accused of providing classified information to the media, seven have occurred since Obama took office.[89] "Leaks related to national security can put people at risk," the President said at a news conference in 2013. "They can put men and women in uniform that I've sent into the battlefield at risk. I don't think the American people would expect me, as commander in chief, not to be concerned about information that might compromise their missions or might get them killed."[90]

Jeffrey Alexander Sterling, a former CIA agent was indicted under the Act in January 2011 for alleged unauthorized disclosure of national defense information to James Risen, a New York Times reporter, in 2003 regarding his book State of War. The indictment described his motive as revenge for the CIA's refusal to allow him to publish his memoirs and its refusal to settle his racial discrimination lawsuit against the Agency. Others have described him as telling Risen about a backfired CIA plot against Iran in the 1990s.[91]

In April 2010, Thomas Andrews Drake, an official with the National Security Agency (NSA), was indicted under 18 U.S.C. § 793(e) for alleged willful retention of national defense information. The case arose from investigations into his communications with Siobhan Gorman of the Baltimore Sun and Diane Roark of the House Intelligence Committee as part of his attempt to blow the whistle on several issues including the NSA's Trailblazer project.[92][93][94][95][96] Considering the prosecution of Drake, investigative journalist Jane Mayer wrote that "Because reporters often retain unauthorized defense documents, Drake's conviction would establish a legal precedent making it possible to prosecute journalists as spies."[97]

Bradley (Later Chelsea) Manning, US Army Private First Class convicted in July 2013 on six counts of violating the Espionage Act.[98]

In May 2010, Shamai K. Leibowitz, a translator for the FBI, admitted sharing information with a blogger and pleaded guilty under 18 U.S.C. § 798(a)(3) to one count of disclosure of classified information. As part of a plea bargain, he was sentenced to 20 months in prison.[99][100]

In August 2010, Stephen Jin-Woo Kim, a contractor for the State Department and a specialist in nuclear proliferation, was indicted under 18 U.S.C. § 793(d) for alleged disclosure in June 2009 of national defense information to reporter James Rosen of Fox News, related to North Korea's plans to test a nuclear weapon.[101][102]

In 2010, Chelsea (formerly Bradley) Manning, the United States Army Private First Class accused of the largest leak of state secrets in U.S. history, was charged under Article 134 of the Uniform Code of Military Justice, which incorporates parts of the Espionage Act 18 U.S.C. § 793(e). At the time, critics worried that the broad language of the Act could make news organizations, and anyone who reported, printed or disseminated information from WikiLeaks, subject to prosecution, although former prosecutors pushed back, citing Supreme Court precedent expanding First Amendment protections.[103] On July 30, 2013, following a judge-only trial by court-martial lasting eight weeks, Army judge Colonel Denise Lind convicted Manning on six counts of violating the Espionage Act, among other infractions.[98]

In January 2012, John Kiriakou, former CIA officer and later Democratic staffer on the Senate Foreign Relations Committee, was charged under the Act with leaking information to journalists about the identity of undercover agents, including one who was allegedly involved in waterboarding interrogations of al-Qaeda logistics chief Abu Zubaydah.[104][105] Kiriakou is alleged to have also disclosed an investigative technique used to capture Zubaydah in Pakistan in 2002.[106]

In June 2013, Edward Snowden was charged under the Espionage Act after releasing documents exposing the NSA's PRISM Surveillance Program. Specifically, he was charged with "unauthorized communication of national defense information" and "willful communication of classified intelligence with an unauthorized person".[107]

Criticism

Numerous people have criticized the use of the Espionage Act against national security leakers. A 2015 study by the PEN American Center found that almost all of the non-government representatives they interviewed—including activists, lawyers, journalists and whistleblowers—"thought the Espionage Act had been used inappropriately in leak cases that have a public interest component." PEN wrote, "experts described it as 'too blunt an instrument,' 'aggressive, broad and suppressive,' a 'tool of intimidation, 'chilling of free speech,' and a 'poor vehicle for prosecuting leakers and whistleblowers.'"[108]

Pentagon Papers whistleblower Daniel Ellsberg said, "the current state of whistleblowing prosecutions under the Espionage Act makes a truly fair trial wholly unavailable to an American who has exposed classified wrongdoing," and that "legal scholars have strongly argued that the US supreme court – which has never yet addressed the constitutionality of applying the Espionage Act to leaks to the American public – should find the use of it overbroad and unconstitutional in the absence of a public interest defense."[109] Professor at American University Washington College of Law and national security law expert Stephen Vladeck has said that the law “lacks the hallmarks of a carefully and precisely defined statutory restriction on speech.”[108] Trevor Timm, executive director of the Freedom of the Press Foundation, said, “basically any information the whistleblower or source would want to bring up at trial to show that they are not guilty of violating the Espionage Act the jury would never hear. It’s almost a certainty that because the law is so broadly written that they would be convicted no matter what.”[108] Attorney and former whistleblower Jesselyn Radack notes that the law was enacted "35 years before the word 'classification' entered the government's lexicon" and believes that "under the Espionage Act, no prosecution of a non-spy can be fair or just."[110] She added that mounting a legal defense to the Espionage Act is estimated to "cost $1 million to $3 million."[110]

See also

References

  1. ↑ Rogerson, Alan (1969), Millions Now Living Will Never Die, Constable, London, ISBN 0-09-455940-6, full text at
  2. ↑ Vaughn, Stephen L. (ed.) (2007), Encyclopedia of American Journalism, Routledge, London, ISBN 0415969506, p. 155.
  3. 1 2 3 Timothy L. Ericson (2005). "Building Our Own "Iron Curtain": The Emergence of Secrecy in American Government". American Archivist 68. Retrieved 2011-04-11.
  4. ↑ Moynihan, Secrecy. 89
  5. ↑ Moynihan, Secrecy, 90–92
  6. ↑ Harold Edgar and Benno C. Schmidt, Jr., "The Espionage Statutes and the Publication of Defense Information", Columbia Law Review. v. 73. no. 5, May 1973, 950–951
  7. ↑ Moynihan, Secrecy, 92–95
  8. ↑ Moynihan, Secrecy, 96
  9. ↑ "History.com: This Day in History — June 15, 1917: U.S. Congress passes Espionage Act". History.com. Retrieved 29 December 2012.
  10. 1 2 [[David M. Kennedy (historian)|]] (2004). Over Here: The First World War and American Society. Oxford University Press. ISBN 0-19-517399-6.
  11. ↑ Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (New York: W. W. Norton & Company, 2004), 231–232
  12. ↑ Ann Hagedorn, Savage Peace: Hope and Fear in America, 1919 (New York: Simon & Schuster, 2007), 29
  13. ↑ Jean Edward Smith, FDR (New York: Random House, 2007), 467, 755n54
  14. ↑ Cornell Law School: Title 18, Part 1, Chapter 37, accessed December 4, 2010
  15. ↑ Moynihan, Secrecy, 97; Herbert Yardley, The American Black Chamber (Bobbs-Merrill, 1931)
  16. ↑ C. William Michaels, No Greater Threat: America after September 11 and the Rise of a National Security State (Algora Publishing, 2002), 21, available online, accessed December 1, 2010
  17. 1 2 Harold Edgar & Benno C. Schmidt, Jr. (1973). "The Espionage Statutes and Publication of Defense Information". 73 Columbia Law Review 929, 940. Retrieved 2011-04-11. as referenced in Ellis 2006 and Alson 2008
  18. ↑ Congressional Record, 87th, 1961, p 10668
  19. ↑ James Traficant, Civilian Espionage Penalties Amendments Act 1989 2 22, fas.org
  20. ↑ National Defense Authorization Act for Fiscal Years 1990 AND 1991, Arlen Spector, Jul 31, 1989, fas.org
  21. ↑ H.R.4060 103rd congress, thomas.loc.gov
  22. ↑ Kennedy, Over Here, 83
  23. ↑ "Harding Frees Debs and 23 Others Held for War Violations". The New York Times. December 24, 1921. Retrieved 2010-07-31. Announcement was made at the White House late this afternoon that President Harding had commuted the sentences of twenty-four so-called political prisoners, including Eugene V. Debs, who were convicted under the Espionage act and ...
  24. ↑ Manchel, Frank (1990). Film Study: An Analytical Bibliography. Fairleigh Dickinson University Press. p. 223. ISBN 0-8386-3414-1.
  25. ↑ Christopher Cappozolla, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (New York: Oxford University Press, 2008), 151–152
  26. ↑ Paxson, Frederic (1939). America At War 1917–1918. Houghton Mifflin Company.
  27. ↑ Capozzola, Uncle Sam Wants You, 153–155
  28. ↑ Capozzola, Uncle Sam Wants You, 159
  29. ↑ Rogerson, Alan (1969). Millions Now Living Will Never Die. Constable, London. p. 42. ISBN 0-09-455940-6.
  30. ↑ Macmillan, A.H. (1957). Faith on the March. Prentice-Hall. p. 85. Archive.org
  31. ↑ Macmillan, A.H. (1957). Faith on the March. Prentice-Hall. p. 89. Archive.org
  32. ↑ Penton, M.J. (1997). Apocalypse Delayed. University of Toronto Press. p. 56. ISBN 978-0-8020-7973-2.
  33. ↑ Rogerson, Alan (1969). Millions Now Living Will Never Die. Constable, London. p. 44. ISBN 0-09-455940-6.
  34. ↑ A. Mitchell Palmer, “The Case Against the ‘Reds,'” Forum 63 (1920): 173–185. quoted in "Attorney General A. Mitchell Palmer Makes "The Case against the Reds"". History Matters, George Mason University. Retrieved 2011-03-25.
  35. 1 2 3 Christopher M. Finan (2007). From the Palmer Raids to the Patriot Act: a history of the fight for free speech in America. Beacon Press. pp. 27–37. ISBN 978-0-8070-4428-5. Retrieved 2011-03-25.
  36. ↑ Chafee's treatise Free Speech in the United States included a lengthy attack on the Schenck decision. Zechariah Chafee, Free Speech in the United States (New York: Harcourt, Brace 1920)
  37. ↑ William E. Leuchtenburg, The Perils of Prosperity, 1914–32 (Chicago: University of Chicago Press, 1958), 43
  38. ↑ Stone, Perilous Times, 191n
  39. ↑ U.S. Supreme Court Center: Hartzel v. United States, accessed March 14, 2011
  40. ↑ U.S. Supreme Court Center: Gorin v. United States, accessed March 14, 2011
  41. ↑ "Mails Barred to "Social Justice"". Pittsburgh Post-Gazette (Pittsburgh, Pennsylvania). 15 April 1942. pp. 1–2. Retrieved 1 January 2010.
  42. ↑ Stone, Goeffrey R. (2004). "Free Speech in World War II: When are you going to indict the seditionists?". International Journal of Constitutional Law.
  43. ↑ "The Press: Coughlin Quits". Time. 1942-05-18. Retrieved 2011-03-13.
  44. ↑ Gabriel Schoenfeld (March 2006). "Has the "New York Times" Violated the Espionage Act?". Commentary Magazine. Retrieved 2011-04-11.
  45. ↑ INVESTIGATIONS: The Strange Case of Amerasia, Time magazine, June 12, 1950. See also The Amerasia Spy Case: Prelude to McCarthyism by Harvey Klehr, Ronald Radosh, UNC Press Books, 1996. See also U.S. Supreme Court Service v. Dulles, 354 U.S. 363 (1957), justia.com
  46. 1 2 Doug Linder. "Rosenberg v United States". umkc.edu. Retrieved 2011-03-19.
  47. ↑ "FBI #8212; The Atom Spy Case". fbi.gov. Retrieved 2011-03-19.
  48. ↑ "Atom Spy Case". eyespymag.com. Retrieved 2011-03-19.
  49. ↑ "Espionage: The Spy Who Skipped". Time. 1962-07-06. Retrieved 2011-03-19.
  50. ↑ "Espionage: The Spy Who Broke Told". Time. 1965-04-16. Retrieved 2011-03-19.
  51. ↑ U.S. Congress. "United States Code Title 50". U.S. House of Representatives. Retrieved 2011-03-19.
  52. ↑ 4th circuit U.S. district courts. "U.S. v. Ford, Appeal" (PDF). uscourts.gov (decided August 4, 2008). Retrieved 2011-04-10.
  53. ↑ WHITE, J., Concurring Opinion, SUPREME COURT OF THE UNITED STATES (1971). "New York Times Co. v. United States (No. 1873)". cornell.edu. Retrieved 2011-04-10.
  54. ↑ Text of Brandenburg v. Ohio, 395 U.S. 444, 447 (U.S. 1969) is available from:  Cornell Legal Information Institute 
  55. ↑ "The Pentagon Papers Case". Retrieved 2005-12-05.
  56. ↑ Correll, John T. "The Pentagon Papers" Air Force Magazine, February 2007.
  57. ↑ The Edgar & Schmidt 1973 CLR article has been cited, for example, in the Thomas Andrews Drake case of 2010. The article is available online at https://fas.org/sgp/library/
  58. ↑ U.S. v Dedeyan 1978
  59. 1 2 U.S. District Court, Judge T. S. Ellis III (2006). "Memorandum Opinion, U.S. v Rosen & Weissman" (PDF). Retrieved 2011-04-11.
  60. ↑ U.S. v. Truong, 1980
  61. ↑ The New York Times: "East German Enters Guilty Plea to Buying Secret U.S. Documents", February 25, 1985, accessed December 8, 2010
  62. ↑ United States v. Zehe, 601 F.Supp. 196 (D. Mass 1985); Kent College of Law: United States v. Zehe, January 29, 1985, accessed December 8, 2010
  63. ↑ The New York Times: Milt Freudenheim and Henry Giniger, "Free to Spy Another Day?", June 16, 1985, accessed December 8, 2010; Los Angeles Times: "U.S. Swaps 4 Red Spies for 25 Held as Western Agents", June 11, 1985, accessed December 8, 2010
  64. ↑ Boston Phoenix: Harvey A. Silvergate, "Freedom Watch: The Real Bob Mueller", July 12–19, 2001, accessed December 8, 2010
  65. ↑ http://www.jonathanpollard.org/2010/110210.htm
  66. ↑ http://law.justia.com/cases/federal/appellate-courts/F2/848/55/291630/
  67. ↑ http://law.justia.com/cases/federal/appellate-courts/F2/835/1067/296623/
  68. ↑ http://www.fbi.gov/about-us/history/famous-cases/the-year-of-the-spy
  69. ↑ Hersh, Seymour (January 18, 1999). "The Traitor". The New Yorker. Archived from the original on 2008-01-21.
  70. ↑ The New York Times: Stephen Engelberg, "Spy Photos' Sale Leads to Arrest", October 3, 1984, accessed March 11, 2011
  71. ↑ Time: Alessandra Stanley, "Spy vs. Spy Saga", October 15, 1984, accessed March 11, 2011
  72. 1 2 3 Time: Anne Constable, George C. Church, "Plugging the Leak of Secrets", January 28, 1985, accessed March 11, 2011
  73. ↑ The New York Times: Michael Wright and Caroline Rand Herron, "Two Years for Morison", December 8, 1985, accessed March 11, 2011
  74. 1 2 The New York Times: James Risen, "Clinton Did Not Consult C.I.A. Chief on Pardon, Official Says", February 17, 2001, accessed March 11, 2011
  75. 1 2 The New York Times: Anthony Lewis, "Abroad at Home; The Pardons in Perspective", March 3, 2001, accessed March 11, 2011
  76. ↑ Time: James Kelly, et al., " Press: Shifting the Attack on Leaks", May 19, 1986, accessed March 11, 2011
  77. ↑ "A Spy Ring Goes to Court". Time. 2005-04-18. Retrieved 2011-03-19.
  78. ↑ http://www.hanford.gov/oci/maindocs/ci_r_docs/earlpitts.pdf
  79. ↑ https://fas.org/irp/offdocs/pitts_nr.htm
  80. ↑ "FBI Affidavit for Arrest of David Sheldon Boone". jya.com. 1998. Retrieved 2011-03-19.
  81. ↑ "Drop the Burger". Time. 1981-09-07. Retrieved 2011-03-19.
  82. ↑ http://hqinet001.hqmc.usmc.mil/pp%26o/PS/pss/Espionage_Cases_75-04.pdf
  83. ↑ Moynihan, Daniel (1999). Secrecy: The American Experience. Yale University Press. p. 155. ISBN 978-0-300-08079-7.; Vaughn, Stephen (July 2007). Encyclopedia of American Journalism. Taylor & Francis, Inc. p. 155. ISBN 978-0-415-96950-5.
  84. ↑ Wen Ho Lee, My Country Versus Me: The First-Hand Account by the Los Alamos Scientist who was Falsely Accused of being a Spy (Hyperion, 2002), pp. ??
  85. ↑ Green, Robert (5 June 2001). "Ex-Colonel on Trial for KGB Spying". ABC. Retrieved 14 July 2014.
  86. ↑ Andrew Kreig (24 October 2010). "Kenneth W. Ford, Jr.". justice-integrity.org. Retrieved 2011-03-24.
  87. ↑ The New York Times: Eric Lichtblau, "Pentagon Analyst Admits Sharing Secret Data", October 6, 2005, accessed March 13, 2001
  88. ↑ The Washington Post: "Sentence Reduced in PentagonCase", June 12, 2009, accessed March 13, 2011
  89. ↑ Tapper, Jake. "CNN's Tapper: Obama has used Espionage Act more than all previous administrations". Politifact.com. Retrieved 13 July 2014.
  90. ↑ Wilson, Scott (16 May 2013). "Obama: 'No apologies' for leaks investigation". The Washington Post. Retrieved 13 July 2014.
  91. ↑ Pierre Thomas; et al. (2011-06-01). "Former CIA Agent Jeffrey Sterling Arrested, Accused of Leaking to Reporter as Revenge". ABC News. Retrieved 2011-03-12.
  92. ↑ Scott Shane (April 15, 2010). "Former N.S.A. Official Is Charged in Leaks Case". The New York Times. Retrieved April 17, 2010.; "Obama's Justice Department indicts NSA whistleblower". Agence France-Presse. April 15, 2010. Retrieved Apr 17, 2010.
  93. ↑ "Former NSA Senior Executive Charged with Illegally Retaining Classified Information, Obstructing Justice and Making False Statements". Justice News (United States Department of Justice). April 15, 2010. Retrieved April 17, 2010.
  94. ↑ Greg Miller, Spencer S. Hsu and Ellen Nakashima, with Carol D. Leonnig, Howard Kurtz and staff researcher Julie Tate (April 16, 2010). "Former NSA official allegedly leaked material to media". The Washington Post. Retrieved April 17, 2010.
  95. ↑ Ellen Nakashima, with Greg Miller & Julie Tate (2010-07-14). "Former NSA executive Thomas A. Drake may pay high price for media leak". The Washington Post. Retrieved 2011-01-11.
  96. ↑ United States v. Thomas A Drake. Criminal Indictment of Thomas A Drake, filed April 14, 2010, U.S. District Court, District of Maryland, Northern Division. This is a PDF of the criminal indictment itself, provided via jdsupra.com, in an upload from Justia.com. Accessed April 17, 2010.
  97. ↑ The Secret Sharer, Jane Mayer, The New Yorker, May 23, 2011, retrieved 2011 May 16
  98. 1 2 Charlie Savage, "Manning Acquitted of Aiding the Enemy", The New York Times, July 30, 2013.
  99. ↑ Maria Glod (2010-05-25). "Former FBI employee sentenced for leaking classified papers". washingtonpost.com. Retrieved 2011-03-01.
  100. ↑ Steven Aftergood (May 25, 2010). "Jail Sentence Imposed in Leak Case". Federation of American Scientists, fas.org. Retrieved 2011-03-13. See link to judgment within the fas.org page as well.
  101. ↑ Newsweek: Mark Hosenball, "Justice Department Indicts Contractor in Alleged Leak", August 8, 2010, retrieved March 12, 2011; The Washington Post: Charlie Savage, "State Dept. contractor charged in leak to news organization", August 8, 2010, retrieved March 12, 2011
  102. ↑ Indictment as to Stephen Jin-Woo Kim
  103. ↑ ABC News: Devin Dwyer, "Espionage Act Presents Challenges for WikiLeaks Indictment", December 13, 2010, accessed March 12, 2011
  104. ↑ Ken Dilanian, "Ex-CIA officer charged with disclosing classified information", Los Angeles Times, January 24, 2012.
  105. ↑ Jerry Seper, "Ex-CIA officer charged in leak case", The Washington Times, January 23, 2012.
  106. ↑ Evan Perez, "Charges Brought in CIA Leak", The Wall Street Journal, January 24, 2012.
  107. ↑ Peter Finn and Sari Horwitz (21 June 2013). "U.S. charges Snowden with espionage". Washington Post. Retrieved 22 June 2013.
  108. 1 2 3 "Secret Sources: Whistleblowers, National Security and Free Expression" (PDF). PEN American Center. November 10, 2015. p. 19. Retrieved November 25, 2015.
  109. ↑ "Daniel Ellsberg: Snowden would not get a fair trial – and Kerry is wrong". the Guardian. Retrieved 2015-11-26.
  110. 1 2 Radack, Jesselyn. "Jesselyn Radack: Why Edward Snowden Wouldn't Get a Fair Trial". Wall Street Journal. ISSN 0099-9660. Retrieved 2015-11-26.

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