What does history say about Espionage Act, snooping on journalists?

jkidd@beaufortgazette.comJune 3, 2013 

Pressure from both side of the aisle seems to be mounting on Attorney General Eric Holder, and it remains unclear if he perjured himself before Congress last month when he told the House Judiciary Committee:

In regard to potential prosecution of the press for the disclosure of material — this is not something I’ve ever been involved in, heard of, or would think would be wise policy.

Since making that statement, it has come to light that his signature was on a request to subpoena personal and business communications from Fox News reporter James Rosen. The request, made before Holder’s May 15 testimony, required the Department of Justice to show probable cause that Rosen had committed a crime and asserted he was a flight risk — language suggestive of the department’s intent to prosecute, though it has not brought charges against Rosen.

There seems to be only three possibilities regarding Holder’s testimony: Holder was being honest but was derelict in scrutinizing a request with huge Constitutional implications; the Justice Department had no intention of prosecuting Rosen but snooped around in his business as if it would; or Holder was flat-out lying and the department absolutely intended to build a case against Rosen.

Each of the three has serious Constitutional and political ramficiations. I’d like to concentrate on a historical perspective of the latter two. The Justice Department has justified its actions regarding the correspondence and phone records of Rosen, Associated Press reporters and other journalists by citing the Espionage Act of 1917.

The New Yorker's Ryan Lizza reported May 24 that DOJ officials sought to keep the search warrant for Rosen's emails secret so that it could continue to monitor them at length. Indeed, Holder’s Justice Department and the Obama administration has used the Espionage Act six times to bring cases against government officials for leaks to the media, twice as many as their predecessors combined.

A recent column by journalist Michael Barone suggests Rosen might have indeed violated the Espionage Act, but hastened to add: “It sounds like this law criminalizes a lot of journalism.”

Barone continued:

The Espionage Act was passed with bipartisan support in a Democratic Congress and strongly supported by Democratic President Woodrow Wilson. Wilson wanted even more. “Authority to exercise censorship over the press is absolutely necessary,” he wrote a senator. He got that authority in May 1918 when Congress passed the Sedition Act criminalizing, among other things, “abusive language” about the government.

The Obama administration notwithstanding, most presidents and attorneys general have used the law sparingly. But it has been used — and used against journalists and commentators.

Wilson’s Justice Department successfully prosecuted Socialist Eugene Debs, a frequent presidential candidate, for making statements against the World War I effort. The Wilson administration also barred socialist newspapers from the mails, jailed a filmmaker for making a movie about the Revolutionary War and prosecuted a minister who claimed Jesus was a pacifist, Barone reported.

Other cases included a German-American socialist congressman and newspaper editor Victor Berger; former Watch Tower Bible & Tract Society president Joseph Franklin Rutherford; communists Julius and Ethel Rosenberg; Pentagon Papers whistleblower Daniel Ellsberg; and alleged Wikileaks conspirator Bradley Manning, according to a Wikipedia article about the act. (Incidentally, Manning’s court-martial trial on 12 of the 22 counts to which he has not already pleaded guilty is to begin today, June 3.)

The most controversial sections of the act, including the original section 3, under which Rutherford was convicted, were repealed in 1921. The same year, a Republican Congress allowed the expiration of the Sedition Act — a companion law to which Barone referred, passed in 1919 to give the Espionage Act sharper teeth.

Many consider the World War I-era law Constitutionally dubious, but attempts to squelch free speech are almost as old as the Constitution itself.

Indeed, the U.S. naval skirmish with France following the latter’s revolution in the late 1700s — which, like current actions in the Middle East, was an undeclared war — prompted passage of the Alien and Sedition Acts, signed into law by Federalist John Adams in 1798.

Among the 25 people arrested under the act was Benjamin Franklin Bache, editor of the Aurora newspaper, which was an advocate for the opposition Democratic-Republican party. Bache had accused George Washington of incompetence and financial irregularities, and “the blind, bald, crippled, toothless, querulous Adams” of nepotism and monarchical ambition, according to the 1951 book “The Alien and Sedition Acts” by John C. Miller. Incidentally, Bache was arrested for his activities, but he died in prison of yellow fever before trial.

Adams’ political opponents didn’t take the Constitutional usurpation lying down. In fact, Vice President Thomas Jefferson of the Democratic-Republican Party and James Madison, a former Federalist and father of the U.S. Constitution, authored the Kentucky and Virginia Resolutions, which laid out the case for nullification and interposition.

One distinction between the clearly unconstitutional Alien and Sedition Acts of 1798 and the Espionage Act the early 20th century is that the former punished speech in any form, including clear assertions of opinion. The latter at least required some proof of the act of subterfuge — actual spying or the abetting of spies.

That said, an article in the Guardian suggests Rosen’s receipt of information from State Department adviser Stephen Kim about North Korea’s nuclear intentions was far less sinister than the administration has implied:

Kim did not obtain unauthorized access to classified information, nor steal documents, nor sell secrets, nor pass them to an enemy of the U.S. Instead, the DOJ alleges that he merely communicated this innocuous information to a journalist — something done every day in Washington —and, for that, this arms expert and long-time government employee faces more than a decade in prison for “espionage.”

In this light, it puts the administration in the unenviable position of defending itself against charges of pushing the bounds of legality to squelch critics and critical reporting. If he is believable on no other point regarding the monitoring of journalists’ correspondence, Holder at least had this right: Even if it’s legal, it’s not wise policy.

Follow editor Jeff Kidd on Twitter at twitter.com/insidepages.

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