Espionage Act of 1917
Encyclopedia
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. §792 et seq.
It originally prohibited any attempt to interfere with military operations, to support U.S. enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment. In 1919, the U.S. Supreme Court unanimously ruled in 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 the law's language have been contested in court ever since.
, 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.
President Woodrow Wilson
in his December 7, 1915, State of the Union address asked Congress for the legislation:
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 for the session Congress ended. After the declaration of war in April 1916, both houses debated versions of the Wilson administration's drafts that included press censorship. That provision aroused opposition, with critics charging it established a system of "prior restraint" and delegated unlimited power to the president. After weeks of intermittent debate, the Senate removed the censorship provision by a one-vote margin, voting 39 to 38. 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.
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 disarmed critics of their conduct of the war on the home front. 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. Wilson also wanted to include the ability for the executive branch to practice censorship in the bill, but Congress voted this down as well.
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.
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.
–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".
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.
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. The Act was amended in 1940 to increase the penalties it imposed, and again in 1970.
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 in 1950 and was added the same year.
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" . He said the need for the Act apply everywhere was prompted by the Scarbeck
case, a State Department official charged with yielding to blackmail threats in Poland.
s, 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 5 years for delivering her speech in North Dakota. Most enforcement activity occurred in the Western states where the I.W.W.
was active. 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 5 years.
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 five thousand dollars. The sentence was commuted on appeal to 3 years.
The poet e.e. Cummings, while serving as a volunteer in the Norton-Harjes Ambulance Corps in France, was arrested on September 21, 1917. Cummings had spoken openly of his lack of hatred for the Germans. He spent three and a half months in a military detention camp and wrote of his experiences in his novel The Enormous Room
. According to the novelist William Slater Brown
who was arrested along with E. E. Cummings:
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". 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".
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. Eventually, Burleson's energetic enforcement overreached when he targeted supporters of the administration. The President warned him to exercise "the utmost caution" in his censorship efforts, and the dispute proved the end of their political friendship.
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
, a 1918 amendment to the Espionage Act, to deport several hundred foreign citizens, including Emma Goldman
, many to the Soviet Union on a ship the press called the "Soviet Ark".
, 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 "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.
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, arguing that "a silly leaflet by an unknown man" could not be construed as a consequential threat.
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. By the end of 1920 the Red Scare had faded, Palmer left government, and the Espionage Act fell into relative disuse. The NCLB took as its new name the American Civil Liberties Union
.
(early 1941), the Supreme Court ruled on many constitutional questions surrounding the act. See also the section below on Soviet Spies.
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".
In 1942, 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 any advantage the U.S. had gained. The case was dropped to avoid bringing more attention to the case, among other reasons.
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.
In 1945 associates of Amerasia
magazine, Jaffe, Larsen, Roth, Mitchell, Gayn, and Service, came under suspicion after they published articles that bore similarity to OSS
reports. Dozens of FBI agents were put on the case. At first, the government wanted to use the Espionage Act against them. The government later softened it's approach; the charges were changed to Embezzlement of Government Property (Now ). The Grand Jury cleared Mitchell, Gayn, and Service. Jaffe and Larsen paid small fines, and Roth's charges were dropped. Some, however, believed the failure to aggressively prosecute the defendants was a communist conspiracy. This included senator Joseph McCarthy
. According to Kleht and Radosh, the case helped build his notoriety.
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 File
s. 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 his 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.
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.
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, 792 and following. This is why certain older cases, such as the Rosenberg
case, are listed under Title 50, while newer cases are often listed under Title 18.
In 1950, during the McCarthy Period
, Congress passed the McCarran Internal Security Act
over President Truman's veto. It modified a large body of law, including espionage law. One addition was , which had almost exactly the same language as . 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 mater 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.
(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.
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
. 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.
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.
United States v. Dedeyan in 1978 was the first prosecution under (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.
In 1979–80, Truong and 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.
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. 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.
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".
The media dubbed 1985 'Year of the spy'. Navy man Jonathan Pollard
was charged with , for selling info 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
. Larry Wu-Tai Chin
, at CIA, was charged with for selling info to China. Ronald Pelton
was dinged for , , & , for selling out to the Soviets, and ruining Operation Ivy Bells
. Edward Lee Howard
was an ex-Peace Corps and ex-CIA agent charged with for allegedly dealing with the Soviets.
The FBI's website says the 1980s was the 'decade of the spy', with dozens of arrests.
The Pollard case
would become controversial and a political issue between Israel and the U.S. Years later notables such as Henry Kissinger
, George Schultz, Michael Mukasey, and Dennis DeConcini
requested commutation of the Pollard life sentence, while Seymour Hersh
wrote an article entitled 'The Traitor' arguing against release.
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. 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. Prosecutors emphasized personal economic gain and Morison's complaints about his government job.
The Reagan administration, as part of a wider campaign against leaks of information, used the prosecution of Morison 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". 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."
On October 17, 1985, Morison was convicted in Federal Court on two counts of espionage and two counts of theft of government property. He was sentenced to two years in prison on on December 4, 1985. The Supreme Court declined to hear his appeal in 1988. Morison became "the only [American] government official ever convicted for giving classified information to the press" up to that time. Following a 1998 appeal for a pardon on the part of Senator Daniel Patrick Moynihan
, President Clinton
pardoned Morison on January 20, 2001, the last day of his presidency, despite the CIA's opposition to the pardon.
The Reagan administration used its successful prosecution of Morison 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.
and Christopher John Boyce
, both of TRW
, sold out to the Soviets and went to prison in the 70s. Several members of the Walker spy ring were prosecuted for their activities in the 80s. David Henry Barnett
was the first CIA officer to be convicted under the act. NSA agent David Sheldon Boone
was charged for giving a 600-page technical manual to the Soviets circa 1988-1991 . FBI agent Robert Hanssen
was convicted under the Act for spying for the Soviets in the 1980s and Russia in the 1990s. Another FBI agent, Earl Edwin Pitts
, was arrested in 1996 under and for spying for the Soviet Union and later for the Russian Federation.
CIA agent Aldrich Ames
was convicted under in the 1990s for spying for the Soviets. Ames revealed their identities of several U.S. sources to Soviet authorities, who then executed them.
deplored the "culture of secrecy" made possible by the Act, noting the tendency of bureaucracies to enlarge their powers by increasing the scope of what is held "secret".
In the late 1990s, Dr. 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. Dr. 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 a more than a million dollars in a lawsuit against the government and several newspapers for their mistreatment of him.
, were indicted under the act. Franklin pleaded guilty to conspiracy to disclose national defense information to the lobbyists and an Israeli government official. Franklin was sentenced to more than 12 years in prison, but the sentence was later reduced to 10 months of home confinement and community service. In 2007 the trial became the first to successfully use the controversial silent witness rule
. The charges against Rosen and Weissman were dropped in 2009.
Many prosecutions in the early twenty-first century related not to traditional espionage
but to either "withholding" information or communicating with members of the media. There were five such prosecutions in 2010.
Kenneth Wayne Ford Jr. was indicted under the Espionage Act 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.
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.
In April 2010, Thomas Andrews Drake
, an official with the National Security Agency
(NSA), was indicted under the Act 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. 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."
In May 2010, Shamai K. Leibowitz, a translator for the FBI
, admitted sharing information with a blogger and plead guilty to one count of disclosure of classified information . As part of a plea bargain, he was sentenced to 20 months in prison.
In August 2010, Stephen Jin-Woo Kim
, a contractor for the State Department
and a specialist in nuclear proliferation, was indicted under the Act for alleged disclosure of national defense information in June 2009 to reporter James Rosen
of Fox News, related to North Korea's plans to test a nuclear weapon.
In 2010, Bradley Manning, an Army private who allegedly leaked information including the United States diplomatic cables leak
to Julian Assange and Wikileaks
, was charged under the Espionage Act . The charge is technically under Article 134 of the UCMJ (Uniform Code of Military Justice) which incorporates parts of the U.S. Code.
In November 2010, anticipating the possible indictment of WikiLeaks
founder Julian Assange
under the Act, critics of that legal strategy said that the broad language of the Act could make news organizations and anyone who reported, printed, or disseminated information from Wikileaks subject to prosecution as well. In 2011, an unknown person in Cambridge, Massachusettes, had received a subpoena regarding the Espionage Act's "conspiracy" clause , as well as the federal embezzlement law , a statute used in some other Espionage Act-related cases. Greenwald says this is "probably" related to wikileaks. A grand jury has begun meeting in Alexandria, Virginia, to hear evidence and decide whether an indictment should be brought.
Related law
Related persons
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
. 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. §792 et seq.
It originally prohibited any attempt to interfere with military operations, to support U.S. enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment. In 1919, the U.S. Supreme Court unanimously ruled in Schenck v. United States
Schenck v. United States
Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...
that the act did not violate the freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
of those convicted under its provisions. The constitutionality of the law, its relationship to free speech, and the meaning of the law's language have been contested in court ever since.
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 1911Defense Secrets Act of 1911
The Defense Secrets Act of 1911 was one of the first laws in the United States specifically criminializing the disclosure of government secrets. It was based in part on the British Official Secrets Act and criminalized obtaining or delivering "information respecting the national defense, to which...
, 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
Official Secrets Act
The Official Secrets Act is a stock short title used in the United Kingdom, Ireland, India and Malaysia and formerly in New Zealand for legislation that provides for the protection of state secrets and official information, mainly related to national security.-United Kingdom:*The Official Secrets...
. The Espionage Act law imposed much stiffer penalties than the 1911 law, including the death penalty.
President Woodrow Wilson
Woodrow Wilson
Thomas Woodrow Wilson was the 28th President of the United States, from 1913 to 1921. A leader of the Progressive Movement, he served as President of Princeton University from 1902 to 1910, and then as the Governor of New Jersey from 1911 to 1913...
in his December 7, 1915, State of the Union address asked Congress for the legislation:
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 for the session Congress ended. After the declaration of war in April 1916, both houses debated versions of the Wilson administration's drafts that included press censorship. That provision aroused opposition, with critics charging it established a system of "prior restraint" and delegated unlimited power to the president. After weeks of intermittent debate, the Senate removed the censorship provision by a one-vote margin, voting 39 to 38. 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.
Attorney General Thomas Watt Gregory
Thomas Watt Gregory
Thomas Watt Gregory was an American attorney and Cabinet Secretary.-Biography:Born in Crawfordsville, Mississippi, he graduated from The Webb School in Bell Buckle, TN in 1881, Southwestern Presbyterian University in 1883, and was a special student at the University of Virginia...
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
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
to the War Department
United States Department of War
The United States Department of War, also called the War Department , was the United States Cabinet department originally responsible for the operation and maintenance of the United States Army...
and creating a form of courts-martial of doubtful constitutionality. The resulting Act was far more aggressive and restrictive than they wanted, but it disarmed critics of their conduct of the war on the home front. 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. Wilson also wanted to include the ability for the executive branch to practice censorship in the bill, but Congress voted this down as well.
It made it a crime:
- To convey information with intent to interfere with the operation or success of the armed forces of the United StatesUnited States armed forcesThe United States Armed Forces are the military forces of the United States. They consist of the Army, Navy, Marine Corps, Air Force, and Coast Guard.The United States has a strong tradition of civilian control of the military...
or to promote the success of its enemies. This was punishable by death or by imprisonment for not more than 30 years or both.
- To convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. This was punishable by a maximum fine of $10,000 or by imprisonment for not more than 20 years or both.
The Act also gave the Postmaster General
United States Postmaster General
The United States Postmaster General is the Chief Executive Officer of the United States Postal Service. The office, in one form or another, is older than both the United States Constitution and the United States Declaration of Independence...
authority to impound or to refuse to mail publications that he determined to be in violation of its prohibitions.
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.
Amendments
The law was extended on May 16, 1918, by the Sedition Act of 1918Sedition Act of 1918
The Sedition Act of 1918 was an Act of the United States Congress that extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds...
–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".
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.
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
Title 18, Part 1, Chapter 37.
In 1933, after signals intelligence expert Herbert Yardley
Herbert Yardley
Herbert Osborne Yardley was an American cryptologist best known for his book The American Black Chamber . The title of the book refers to the Cipher Bureau, the cryptographic organization of which Yardley was the founder and head...
published a popular book about breaking Japanese codes, the Act was amended to prohibit the disclosure of foreign code or anything sent in code. The Act was amended in 1940 to increase the penalties it imposed, and again in 1970.
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
McCarran Internal Security Act
The Internal Security Act of 1950, , also known as the Subversive Activities Control Act or the McCarran Act, after Senator Pat McCarran , is a United States federal law of the McCarthy era. It was passed over President Harry Truman's veto...
added in 1950 and was added the same year.
In 1961, Congressman Richard Poff
Richard Harding Poff
Richard Harding Poff was an American politician and judge. He was first elected to the United States House of Representatives in 1952, representing Virginia's Sixth District...
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" . He said the need for the Act apply everywhere was prompted by the Scarbeck
Irvin C. Scarbeck
Irving C. Scarbeck was a U.S. State Department official who was convicted of giving information to Polish UB during the Cold War, after he became involved in a romantic affair with a Polish woman and was blackmailed by Polish intelligence agents. His case was the first prosecution under Title 50...
case, a State Department official charged with yielding to blackmail threats in Poland.
Proposed amendments
In 1989, Congressman James Trafficant tried to amend to broaden the application of the death penalty. Senator Arlen Spector proposed a comparable expansion of the use of the death penalty the same year. In 1994, Robert K. Dornan proposed the death penalty for the disclosure of a U.S. agent's identity.World War I
Much of the Act's enforcement was left to the discretion of local United States AttorneyUnited States Attorney
United States Attorneys represent the United States federal government in United States district court and United States court of appeals. There are 93 U.S. Attorneys stationed throughout the United States, Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands...
s, so enforcement varied widely. For example, Socialist Kate Richards O'Hare
Kate Richards O'Hare
Kate Richards O'Hare was an American Socialist Party activist, editor, and orator best known for her controversial imprisonment during World War I.-Biography:...
gave the same speech in several states, but was convicted and sentenced to a prison term of 5 years for delivering her speech in North Dakota. Most enforcement activity occurred in the Western states where the I.W.W.
Industrial Workers of the World
The Industrial Workers of the World is an international union. At its peak in 1923, the organization claimed some 100,000 members in good standing, and could marshal the support of perhaps 300,000 workers. Its membership declined dramatically after a 1924 split brought on by internal conflict...
was active. 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
Eugene V. Debs
Eugene Victor Debs was an American union leader, one of the founding members of the International Labor Union and the Industrial Workers of the World , and several times the candidate of the Socialist Party of America for President of the United States...
, Socialist Party
Socialist Party of America
The Socialist Party of America was a multi-tendency democratic-socialist political party in the United States, formed in 1901 by a merger between the three-year-old Social Democratic Party of America and disaffected elements of the Socialist Labor Party which had split from the main organization...
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
Warren G. Harding
Warren Gamaliel Harding was the 29th President of the United States . A Republican from Ohio, Harding was an influential self-made newspaper publisher. He served in the Ohio Senate , as the 28th Lieutenant Governor of Ohio and as a U.S. Senator...
commuted his sentence in December 1921 when he had served nearly 5 years.
In United States v. Motion Picture Film (1917), a federal court upheld the government's seizure of a film called "The Spirit of '76
The Spirit of '76 (1917 film)
The Spirit of '76 was a silent film directed by Frank Montgomery that depicted the early history of the United States. It is considered a lost film as no prints are known to survive.-Production:...
" 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 five thousand dollars. The sentence was commuted on appeal to 3 years.
The poet e.e. Cummings, while serving as a volunteer in the Norton-Harjes Ambulance Corps in France, was arrested on September 21, 1917. Cummings had spoken openly of his lack of hatred for the Germans. He spent three and a half months in a military detention camp and wrote of his experiences in his novel The Enormous Room
The Enormous Room
The Enormous Room is a 1922 autobiographical novel by the poet and novelist E. E. Cummings about his temporary imprisonment in France during World War I....
. According to the novelist William Slater Brown
William Slater Brown
William Slater Brown was an American novelist, biographer and translator of French literature. Most notably, he was a friend of the poet E. E...
who was arrested along with E. E. Cummings:
It was not those dumb, jejune letters of mine that got us into trouble. It was the fact that C. and I knew all about the violent mutinies in the French Army a few months before Cummings and I reached the front. We learned all about them from the poilus. The French did everything, naturally, to suppress the news.
Postmaster General Albert S. Burleson
Albert S. Burleson
Albert Sidney Burleson was a United States Postmaster General and Congressman. Born in San Marcos, Texas, he came from a wealthy Southern family. His father, Edward Burleson, Jr., was a Confederate officer. His grandfather, Edward Burleson, was a soldier and statesman in the Republic of Texas and...
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". Postmasters in Savannah, Georgia
Savannah, Georgia
Savannah is the largest city and the county seat of Chatham County, in the U.S. state of Georgia. Established in 1733, the city of Savannah was the colonial capital of the Province of Georgia and later the first state capital of Georgia. Today Savannah is an industrial center and an important...
, and Tampa, Florida
Tampa, Florida
Tampa is a city in the U.S. state of Florida. It serves as the county seat for Hillsborough County. Tampa is located on the west coast of Florida. The population of Tampa in 2010 was 335,709....
, refused to mail the Jeffersonian, the mouthpiece of Tom Watson
Thomas E. Watson
Thomas Edward "Tom" Watson was an American politician, newspaper editor, and writer from Georgia. In the 1890s Watson championed poor farmers as a leader of the Populist Party, articulating an agrarian political viewpoint while attacking business, bankers, railroads, Democratic President Grover...
, 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".
In New York City, the postmaster refused to mail The Masses
The Masses
The Masses was a graphically innovative magazine of socialist politics published monthly in the U.S. from 1911 until 1917, when Federal prosecutors brought charges against its editors for conspiring to obstruct conscription. It was succeeded by The Liberator and then later The New Masses...
, a socialist monthly, citing the publication's "general tenor". The Masses was more successful in the courts, where Judge Learned Hand
Learned Hand
Billings Learned Hand was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit...
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. Eventually, Burleson's energetic enforcement overreached when he targeted supporters of the administration. The President warned him to exercise "the utmost caution" in his censorship efforts, and the dispute proved the end of their political friendship.
Red Scare, Palmer Raids, mass arrests, deportations
First Red Scare
In American history, the First Red Scare of 1919–1920 was marked by a widespread fear of Bolshevism and anarchism. Concerns over the effects of radical political agitation in American society and alleged spread in the American labor movement fueled the paranoia that defined the period.The First Red...
of 1918–19, in response to the 1919 anarchist bombings
1919 United States anarchist bombings
The 1919 United States anarchist bombings were a series of bombings and attempted bombings carried out by anarchist followers of Luigi Galleani from April through June 1919...
aimed at prominent government officials and businessman, U.S. Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
A. Mitchell Palmer, supported by J. Edgar Hoover
J. Edgar Hoover
John Edgar Hoover was the first Director of the Federal Bureau of Investigation of the United States. Appointed director of the Bureau of Investigation—predecessor to the FBI—in 1924, he was instrumental in founding the FBI in 1935, where he remained director until his death in 1972...
, then head of the Justice Department's Enemy Aliens Registration Section, used the Sedition Act
Sedition Act
Sedition Act may refer to:*Alien and Sedition Acts, including the Sedition Act of 1798, laws passed by the United States Congress*Sedition Act 1661, an English statute that largely relates to treason...
, a 1918 amendment to the Espionage Act, to deport several hundred foreign citizens, including Emma Goldman
Emma Goldman
Emma Goldman was an anarchist known for her political activism, writing and speeches. She played a pivotal role in the development of anarchist political philosophy in North America and Europe in the first half of the twentieth century....
, many to the Soviet Union on a ship the press called the "Soviet Ark".
Schenck v. United States and the Red Scare
Many of the jailed challenged their convictions based on their 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 StatesSchenck v. United States
Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...
, 249 U.S. 47
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
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
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
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
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...
" to the government action at issue. Holmes' opinion is also the origin of the notion that speech equivalent to "Shouting fire in a crowded theater
Shouting fire in a crowded theater
"Shouting fire in a crowded theatre" is a popular metaphor and frequent paraphrasing of Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919...
" 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
Zechariah Chafee
Zechariah Chafee, Jr. was an American judicial philosopher and civil libertarian. An advocate for free speech, he was described by Senator Joseph McCarthy as "dangerous" to the United States...
and discussed his criticism of Schenck.
Later in 1919, in Abrams v. United States
Abrams v. United States
Abrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...
, 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, arguing that "a silly leaflet by an unknown man" could not be construed as a consequential threat.
In March 1919 President Wilson, at the suggestion of Attorney General Thomas Watt Gregory
Thomas Watt Gregory
Thomas Watt Gregory was an American attorney and Cabinet Secretary.-Biography:Born in Crawfordsville, Mississippi, he graduated from The Webb School in Bell Buckle, TN in 1881, Southwestern Presbyterian University in 1883, and was a special student at the University of Virginia...
pardoned or commuted the sentences of some 200 prisoners convicted under the Espionage Act or the Sedition Act. By the end of 1920 the Red Scare had faded, Palmer left government, and the Espionage Act fell into relative disuse. The NCLB took as its new name the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
.
World War II
In Gorin v. United StatesGorin v. United States
Gorin v. United States and Salich v. United States was a supreme court case decided in 1941 in the United States. It involved the Espionage Act and it's use against Mihail Gorin, an intelligence agent from the Soviet Union, and Hafis Salich, a Navy employee who sold to Gorin information on Japanese...
(early 1941), the Supreme Court ruled on many constitutional questions surrounding the act. See also the section below on Soviet Spies.
The Act was used in 1942 to deny a mailing permit to Charles Coughlin's
Charles Coughlin
Father Charles Edward Coughlin was a controversial Roman Catholic priest at Royal Oak, Michigan's National Shrine of the Little Flower church. He was one of the first political leaders to use radio to reach a mass audience, as more than thirty million tuned to his weekly broadcasts during the...
weekly Social Justice
Social Justice (periodical)
Social Justice was a periodical published by Father Coughlin in the 1930s and early 1940s. It was controversial for printing antisemitic polemics such as The Protocols of the Elders of Zion. Coughlin claimed that Marxist atheism in Europe was a Jewish plot against America...
, effectively ending its distribution to subscribers. It was part of Attorney General Francis Biddle
Francis Biddle
Francis Beverley Biddle was an American lawyer and judge who was Attorney General of the United States during World War II and who served as the primary American judge during the postwar Nuremberg trials....
's attempt to close down what he called "vermin publications".
In 1942, 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 any advantage the U.S. had gained. The case was dropped to avoid bringing more attention to the case, among other reasons.
Prosecutions under the Act were far less numerous during World War II than they had been during World War I. Associate Justice Frank Murphy
Frank Murphy
William Francis Murphy was a politician and jurist from Michigan. He served as First Assistant U.S. District Attorney, Eastern Michigan District , Recorder's Court Judge, Detroit . Mayor of Detroit , the last Governor-General of the Philippines , U.S...
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.
In 1945 associates of Amerasia
Amerasia
Amerasia was a journal of Far Eastern affairs best known for the 1940s "Amerasia Affair" in which several of its staff and their contacts were suspected of espionage and charged with unauthorized possession of government documents.-Publication:...
magazine, Jaffe, Larsen, Roth, Mitchell, Gayn, and Service, came under suspicion after they published articles that bore similarity to OSS
OSS
-Science and technology:* Open-source software* Open Sound System, a standard interface for making and capturing sound in Unix operating systems* Open Search Server, search engine software...
reports. Dozens of FBI agents were put on the case. At first, the government wanted to use the Espionage Act against them. The government later softened it's approach; the charges were changed to Embezzlement of Government Property (Now ). The Grand Jury cleared Mitchell, Gayn, and Service. Jaffe and Larsen paid small fines, and Roth's charges were dropped. Some, however, believed the failure to aggressively prosecute the defendants was a communist conspiracy. This included senator Joseph McCarthy
Joseph McCarthy
Joseph Raymond "Joe" McCarthy was an American politician who served as a Republican U.S. Senator from the state of Wisconsin from 1947 until his death in 1957...
. According to Kleht and Radosh, the case helped build his notoriety.
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 StatesGorin v. United States
Gorin v. United States and Salich v. United States was a supreme court case decided in 1941 in the United States. It involved the Espionage Act and it's use against Mihail Gorin, an intelligence agent from the Soviet Union, and Hafis Salich, a Navy employee who sold to Gorin information on Japanese...
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
Elizabeth Bentley
Elizabeth Terrill Bentley was an American spy for the Soviet Union from 1938 until 1945. In 1945 she defected from the Communist Party and Soviet intelligence and became an informer for the U.S. She exposed two networks of spies, ultimately naming over 80 Americans who had engaged in espionage for...
case, the atomic spies
Atomic Spies
Atomic Spies and Atom Spies are terms that refer to various people in the United States, Great Britain, and Canada who are thought to have illicitly given information about nuclear weapons production or design to the Soviet Union during World War II and the early Cold War...
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 File
FBI Silvermaster File
The FBI’s Silvermaster file is a 162-volume compendium of some 26,000 pages of documents relating to the Bureau’s investigation of Communist penetration of the Federal government during the Cold War....
s. However there were also many successful prosecutions and convictions under the Act.
In August 1950, Julius and Ethel Rosenberg
Julius and Ethel Rosenberg
Ethel Greenglass Rosenberg and Julius Rosenberg were American communists who were convicted and executed in 1953 for conspiracy to commit espionage during a time of war. The charges related to their passing information about the atomic bomb to the Soviet Union...
were indicted under Title 50, sections 32a and 34, in connection with his giving nuclear secrets to the Soviet Union. Anatoli Yakovlev was indicted as well. In 1951 Morton Sobell
Morton Sobell
Morton Sobell is a former spy for the Soviet Union. Sobell was an American engineer working for General Electric and Reeves Electronics on military and government contracts. He was found guilty of spying for the Soviets , and sentenced to 30 years in prison...
and David Greenglass
David Greenglass
David Greenglass was an atomic spy for the Soviet Union who worked in the Manhattan project. He was the brother of Ethel Rosenberg.-Biography:...
were indicted. After a controversial trial in 1951, the Rosenbergs were sentenced to death. The sentence was carried out in 1953.
In the late 1950s, several members of the Soble spy ring, including Robert Soblen
Robert Soblen
Dr. Robert Soblen , was a prominent member of the pro-Trotsky Left Opposition in Germany in the 1930s. He moved to the United States in 1941 with his brother Jack Soble, and was arrested in 1960 as a Soviet spy. Convicted and sentenced to life in prison, he fled the U.S...
, and Jack
Jack Soble
Jack Soble Jack Soble (birth name:Abromas Sobolevicius, sometimes used Abraham Sobolevicius or Adolph Senin) Jack Soble (birth name:Abromas Sobolevicius, sometimes used Abraham Sobolevicius or Adolph Senin) (born May 15, 1903 in Vilkaviskis, Lithuania - ?, but possibly (1897-1974) was a Jewish...
and Myra Soble
Myra Soble
Myra Soble together with her husband Jack Soble was tried and jailed for her involvement in the Soble spy ring.Myra Soble , was born on March 18, 1904, in Nikloaev, Ukraine, Russia. She was the wife of Jack Soble. Myra and Jack were married on November 24, 1927, in Moscow...
, 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.
1948 code revision and the 1950 McCarran Internal Security Act
In 1948 some portions of the United States CodeUnited States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
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, 792 and following. This is why certain older cases, such as the Rosenberg
Julius and Ethel Rosenberg
Ethel Greenglass Rosenberg and Julius Rosenberg were American communists who were convicted and executed in 1953 for conspiracy to commit espionage during a time of war. The charges related to their passing information about the atomic bomb to the Soviet Union...
case, are listed under Title 50, while newer cases are often listed under Title 18.
In 1950, during the McCarthy Period
McCarthyism
McCarthyism is the practice of making accusations of disloyalty, subversion, or treason without proper regard for evidence. The term has its origins in the period in the United States known as the Second Red Scare, lasting roughly from the late 1940s to the late 1950s and characterized by...
, Congress passed the McCarran Internal Security Act
McCarran Internal Security Act
The Internal Security Act of 1950, , also known as the Subversive Activities Control Act or the McCarran Act, after Senator Pat McCarran , is a United States federal law of the McCarthy era. It was passed over President Harry Truman's veto...
over President Truman's veto. It modified a large body of law, including espionage law. One addition was , which had almost exactly the same language as . 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 mater 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
Alger Hiss
Alger Hiss was an American lawyer, government official, author, and lecturer. He was involved in the establishment of the United Nations both as a U.S. State Department and U.N. official...
and the pumpkin papers.
Brandenburg
Court decisions of this era changed the standard for enforcing some provisions of the Espionage Act. Thought not a case involving charges under the Act, Brandenburg v. OhioBrandenburg v. Ohio
Brandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...
(1969) changed the "clear and present danger" test derived from Schenck to the "imminent lawless action
Imminent lawless action
"Imminent lawless action" is a standard currently used, and that was established by the United States Supreme Court in Brandenburg v. Ohio , for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v....
" test, a considerably stricter test of the inflammatory nature of speech.
Pentagon Papers
In June 1971, Daniel EllsbergDaniel Ellsberg
Daniel Ellsberg, PhD, is a former United States military analyst who, while employed by the RAND Corporation, precipitated a national political controversy in 1971 when he released the Pentagon Papers, a top-secret Pentagon study of U.S. government decision-making in relation to the Vietnam War,...
and Anthony Russo
Anthony Russo (whistleblower)
Anthony J. "Tony" Russo, Jr. was an American researcher who assisted Daniel Ellsberg, his friend and former colleague at the RAND Corporation, in copying the Pentagon Papers.-Early life:...
were charged with a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
under the Espionage Act of 1917, because they lacked legal authority to publish classified documents that came to be known as the Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
. The Supreme Court in New York Times Co. v. United States
New York Times Co. v. United States
New York Times Co. v. United States, 403 U.S. 713 , was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.President Richard Nixon had...
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.
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.
United States v. Dedeyan in 1978 was the first prosecution under (Dedeyan 'failed to report' that information had been disclosed). The courts relied on Gorin v. United States
Gorin v. United States
Gorin v. United States and Salich v. United States was a supreme court case decided in 1941 in the United States. It involved the Espionage Act and it's use against Mihail Gorin, an intelligence agent from the Soviet Union, and Hafis Salich, a Navy employee who sold to Gorin information on Japanese...
(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.
In 1979–80, Truong and 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
Scienter
Scienter is a legal term that refers to intent or knowledge of wrongdoing. This means that an offending party has knowledge of the "wrongness" of an act or event prior to committing it. For example, if a man sells a car to his friend with brakes that do not work, and he does not know about the...
) being a requirement for conviction even under 793(e); an "honest mistake" was said not to be a violation.
Reagan administration
Alfred ZeheAlfred Zehe
Alfred Zehe is a physicist, professor and author. After American authorities charged him with spying for the East German government in 1983, he became part of a high-profile prisoner exchange between the U.S. and the Soviet Union....
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. 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.
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".
The media dubbed 1985 'Year of the spy'. Navy man Jonathan Pollard
Jonathan Pollard
Jonathan Jay Pollard worked as a civilian intelligence analyst before being convicted of spying for Israel. He received a life sentence in 1987....
was charged with , for selling info 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
Caspar Weinberger
Caspar Willard "Cap" Weinberger , was an American politician, vice president and general counsel of Bechtel Corporation, and Secretary of Defense under President Ronald Reagan from January 21, 1981, until November 23, 1987, making him the third longest-serving defense secretary to date, after...
. Larry Wu-Tai Chin
Larry Wu-Tai Chin
Larry Wu-tai Chin was a former Chinese language translator working for the CIA's Foreign Broadcast Information Service...
, at CIA, was charged with for selling info to China. Ronald Pelton
Ronald Pelton
Ronald William Pelton was an National Security Agency intelligence analyst who was convicted in 1986 of spying for and selling secrets to the Soviet Union. He reportedly has a photographic memory as he passed no documents to the Soviets...
was dinged for , , & , for selling out to the Soviets, and ruining Operation Ivy Bells
Operation Ivy Bells
Operation Ivy Bells was a joint United States Navy, CIA and National Security Agency mission whose objective was to place wire taps on Soviet underwater communication lines during the Cold War.-History:...
. Edward Lee Howard
Edward Lee Howard
Edward Lee Victor Howard was a CIA case officer who defected to the Soviet Union....
was an ex-Peace Corps and ex-CIA agent charged with for allegedly dealing with the Soviets.
The FBI's website says the 1980s was the 'decade of the spy', with dozens of arrests.
The Pollard case
Jonathan Pollard
Jonathan Jay Pollard worked as a civilian intelligence analyst before being convicted of spying for Israel. He received a life sentence in 1987....
would become controversial and a political issue between Israel and the U.S. Years later notables such as Henry Kissinger
Henry Kissinger
Heinz Alfred "Henry" Kissinger is a German-born American academic, political scientist, diplomat, and businessman. He is a recipient of the Nobel Peace Prize. He served as National Security Advisor and later concurrently as Secretary of State in the administrations of Presidents Richard Nixon and...
, George Schultz, Michael Mukasey, and Dennis DeConcini
Dennis DeConcini
Dennis Webster DeConcini is a former Democratic U.S. Senator from Arizona. Son of former Arizona Supreme Court Judge Evo Anton DeConcini, he represented Arizona in the United States Senate from 1977 until 1995....
requested commutation of the Pollard life sentence, while Seymour Hersh
Seymour Hersh
Seymour Myron Hersh is an American Pulitzer Prize-winning investigative journalist and author based in Washington, D.C. He is a regular contributor to The New Yorker magazine on military and security matters...
wrote an article entitled 'The Traitor' arguing against release.
Morison
Samuel Loring MorisonSamuel Loring Morison
Samuel Loring Morison is a former American intelligence professional, who was convicted of espionage and theft of government property in 1985, and pardoned in 2001...
was a government security analyst who worked on the side for Jane's
Jane's Information Group
Jane's Information Group is a publishing company specializing in transportation and military topics.-History:It was founded by Fred T...
, a British military and defense publisher. He was arrested on October 1, 1984. 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. Prosecutors emphasized personal economic gain and Morison's complaints about his government job.
The Reagan administration, as part of a wider campaign against leaks of information, used the prosecution of Morison 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". 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."
On October 17, 1985, Morison was convicted in Federal Court on two counts of espionage and two counts of theft of government property. He was sentenced to two years in prison on on December 4, 1985. The Supreme Court declined to hear his appeal in 1988. Morison became "the only [American] government official ever convicted for giving classified information to the press" up to that time. Following a 1998 appeal for a pardon on the part of Senator Daniel Patrick Moynihan
Daniel Patrick Moynihan
Daniel Patrick "Pat" Moynihan was an American politician and sociologist. A member of the Democratic Party, he was first elected to the United States Senate for New York in 1976, and was re-elected three times . He declined to run for re-election in 2000...
, President Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
pardoned Morison on January 20, 2001, the last day of his presidency, despite the CIA's opposition to the pardon.
The Reagan administration used its successful prosecution of Morison 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.
Soviet spies, late 20th century
Andrew Daulton LeeAndrew Daulton Lee
Andrew Daulton Lee is an American who was convicted of espionage for his involvement in the spying activities of his childhood friend, Christopher Boyce.Lee was the adopted eldest son of Dr. Daulton Lee, a wealthy California physician...
and Christopher John Boyce
Christopher John Boyce
Christopher John Boyce is a convicted KGB who sold U.S. spy satellite secrets to the Soviet Union in the 1970s.-Espionage:...
, both of TRW
TRW
TRW Inc. was an American corporation involved in a variety of businesses, mainly aerospace, automotive, and credit reporting. It was a pioneer in multiple fields including electronic components, integrated circuits, computers, software and systems engineering. TRW built many spacecraft,...
, sold out to the Soviets and went to prison in the 70s. Several members of the Walker spy ring were prosecuted for their activities in the 80s. David Henry Barnett
David Henry Barnett
David Henry Barnett , was a CIA officer who was convicted of espionage for the Soviet Union in 1980, becoming only the second CIA officer to such a fate after Edwin Moore II, a retired CIA employee who was arrested by the FBI in 1976 after attempting to sell classified documents to Soviet...
was the first CIA officer to be convicted under the act. NSA agent David Sheldon Boone
David Sheldon Boone
David Sheldon Boone is a former U.S. Army signals analyst who worked for the National Security Agency and was convicted of espionage-related charges in 1999 related to his sale of secret documents to the Soviet Union from 1988 to 1991. He is currently serving a prison sentence of 24 years and four...
was charged for giving a 600-page technical manual to the Soviets circa 1988-1991 . FBI agent Robert Hanssen
Robert Hanssen
Robert Philip Hanssen is a former American FBI agent who spied for Soviet and Russian intelligence services against the United States for 22 years from 1979 to 2001...
was convicted under the Act for spying for the Soviets in the 1980s and Russia in the 1990s. Another FBI agent, Earl Edwin Pitts
Earl Edwin Pitts
Earl Edwin Pitts is a former FBI special agent who, in 1996, was arrested at the FBI Academy in Quantico, Virginia. Pitts was charged with several offenses, including spying for the Soviet Union and Russia...
, was arrested in 1996 under and for spying for the Soviet Union and later for the Russian Federation.
CIA agent Aldrich Ames
Aldrich Ames
Aldrich Hazen Ames is a former Central Intelligence Agency counter-intelligence officer and analyst, who, in 1994, was convicted of spying for the Soviet Union and Russia...
was convicted under in the 1990s for spying for the Soviets. Ames revealed their identities of several U.S. sources to Soviet authorities, who then executed them.
Other spies of the 1990s
- Name, Agency, Foreign party.
- 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 + Czechoslovakia
- Groat, Douglas Frederick, CIA, Original espionage charges dropped to avoid disclosure at trial.
- Faget, Mariano, INS, Cuba
- The Cuban FiveCuban FiveThe Cuban Five, also known as the Miami Five are five Cuban intelligence officers convicted in Miami of conspiracy to commit espionage, conspiracy to commit murder, and other illegal activities in the United States...
(Hernández, Guerrero, Labañino, González, and González) - 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, LANLLos Alamos National LaboratoryLos Alamos National Laboratory is a United States Department of Energy national laboratory, managed and operated by Los Alamos National Security , located in Los Alamos, New Mexico...
, China (discussing hohlraums) - Lessenthien, Kurt, Navy, Russia
1990s critiques
In the 1990s, Senator Daniel Patrick MoynihanDaniel Patrick Moynihan
Daniel Patrick "Pat" Moynihan was an American politician and sociologist. A member of the Democratic Party, he was first elected to the United States Senate for New York in 1976, and was re-elected three times . He declined to run for re-election in 2000...
deplored the "culture of secrecy" made possible by the Act, noting the tendency of bureaucracies to enlarge their powers by increasing the scope of what is held "secret".
In the late 1990s, Dr. Wen Ho Lee
Wen Ho Lee
Dr. Wen Ho Lee is a Taiwan-born Taiwanese American scientist who worked for the University of California at the Los Alamos National Laboratory. He created simulations of nuclear explosions for the purposes of scientific inquiry, as well as for improving the safety and reliability of the US nuclear...
of Los Alamos National Laboratory
Los Alamos National Laboratory
Los Alamos National Laboratory is a United States Department of Energy national laboratory, managed and operated by Los Alamos National Security , located in Los Alamos, New Mexico...
(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
W88
The W88 is a United States thermonuclear warhead, with an estimated yield of 475 kiloton , and is small enough to fit on MIRVed missiles. The W88 was designed at the Los Alamos National Laboratory in the 1970s. In 1999 the director of Los Alamos who had presided over its design described it as...
nuclear warhead had been transferred to China. Dr. Lee had made backup
Backup
In information technology, a backup or the process of backing up is making copies of data which may be used to restore the original after a data loss event. The verb form is back up in two words, whereas the noun is 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 unclassified
Sensitive But Unclassified is a designation of information in the United States federal government that, though unclassified, often requires strict controls over its distribution...
, sensitive but not classified. As part of a plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
, he pled guilty to one count under the Espionage Act. The judge apologized to him for having believed the government. Lee later won a more than a million dollars in a lawsuit against the government and several newspapers for their mistreatment of him.
21st century
In 2005 Pentagon Iran expert Lawrence Franklin, along with AIPAC lobbyists Rosen and WeissmanUnited States v. Franklin, Rosen, and Weissman
United States v. Franklin, Rosen, and Weissman was a 2000s era court case in the United States. The government prosecuted one government employee and two lobbyists for allegedly disclosing national defense information to persons 'not entitled' to have it, a crime under the Espionage Act of 1917...
, were indicted under the act. Franklin pleaded guilty to conspiracy to disclose national defense information to the lobbyists and an Israeli government official. Franklin was sentenced to more than 12 years in prison, but the sentence was later reduced to 10 months of home confinement and community service. In 2007 the trial became the first to successfully use the controversial silent witness rule
Silent witness rule
The silent witness rule is the use of 'substitutions' when referring to sensitive information in the United States open courtroom jury trial system. The phrase was first used in US v. Zettl, in 1987. An example of a substitution method is the use of code-words on a 'key card', to which witnesses...
. The charges against Rosen and Weissman were dropped in 2009.
Many prosecutions in the early twenty-first century related not to traditional espionage
Espionage
Espionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, lest the legitimate holder of the information change plans or take other countermeasures once it...
but to either "withholding" information or communicating with members of the media. There were five such prosecutions in 2010.
Kenneth Wayne Ford Jr. was indicted under the Espionage Act 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.
Jeffrey Alexander Sterling
Jeffrey Alexander Sterling
Jeffrey Alexander Sterling is a former CIA employee, who was indicted and subsequently arrested under the Espionage Act for allegedly revealing details about Operation Merlin to journalist James Risen.-Education:...
, a former CIA
Central Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
agent was indicted under the Act in January 2011 for alleged unauthorized disclosure of national defense information to James Risen
James Risen
James Risen is a Pulitzer Prize-winning American journalist for The New York Times who previously worked for the Los Angeles Times. He has written or co-written many articles concerning U.S...
, a New York Times reporter, in 2003 regarding his book State of War
State of War
State of war may refer to:*a situation where two or more states are at war with each other, with or without a real armed conflict*State of War , a book by James Risen which makes numerous controversial allegations about Central Intelligence Agency activities*State of War , a real-time strategy...
. 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.
In April 2010, Thomas Andrews Drake
Thomas Andrews Drake
Thomas Andrews Drake is a former senior official of the U.S. National Security Agency , decorated United States Air Force and United States Navy veteran, computer software expert, linguist, management and leadership specialist, and whistleblower. In 2010 the government alleged that he 'mishandled'...
, an official with the National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
(NSA), was indicted under the Act 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
Trailblazer Project
Trailblazer was a United States National Security Agency program intended to analyze data carried on communications networks like the internet. It was able to track communication methods such as cell phones and e-mail...
project. Considering the prosecution of Drake, investigative journalist Jane Mayer
Jane Mayer
Jane Mayer is an American investigative journalist who has been a staff writer for The New Yorker magazine since 1995...
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."
In May 2010, Shamai K. Leibowitz, a translator for the FBI
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
, admitted sharing information with a blogger and plead guilty to one count of disclosure of classified information . As part of a plea bargain, he was sentenced to 20 months in prison.
In August 2010, Stephen Jin-Woo Kim
Stephen Jin-Woo Kim
Stephen Jin-Woo Kim is a Senior Analyst at the Office of National Security at Lawrence Livermore National Laboratory with a distinguished career in academia and government service. He lives in McLean, Virginia...
, a contractor for the State Department
United States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...
and a specialist in nuclear proliferation, was indicted under the Act for alleged disclosure of national defense information in June 2009 to reporter James Rosen
James Rosen (journalist)
James Rosen is a journalist and television correspondent. He currently works as a Washington, D.C. correspondent for the Fox News Channel.-Early life:...
of Fox News, related to North Korea's plans to test a nuclear weapon.
In 2010, Bradley Manning, an Army private who allegedly leaked information including the United States diplomatic cables leak
United States diplomatic cables leak
The United States diplomatic cables leak, widely known as Cablegate, began in February 2010 when WikiLeaks—a non-profit organization that publishes submissions from anonymous whistleblowers—began releasing classified cables that had been sent to the U.S. State Department by 274 of its consulates,...
to Julian Assange and Wikileaks
Wikileaks
WikiLeaks is an international self-described not-for-profit organisation that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Its website, launched in 2006 under The Sunshine Press organisation, claimed a database of more...
, was charged under the Espionage Act . The charge is technically under Article 134 of the UCMJ (Uniform Code of Military Justice) which incorporates parts of the U.S. Code.
In November 2010, anticipating the possible indictment of WikiLeaks
Wikileaks
WikiLeaks is an international self-described not-for-profit organisation that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Its website, launched in 2006 under The Sunshine Press organisation, claimed a database of more...
founder Julian Assange
Julian Assange
Julian Paul Assange is an Australian publisher, journalist, writer, computer programmer and Internet activist. He is the editor in chief of WikiLeaks, a whistleblower website and conduit for worldwide news leaks with the stated purpose of creating open governments.WikiLeaks has published material...
under the Act, critics of that legal strategy said that the broad language of the Act could make news organizations and anyone who reported, printed, or disseminated information from Wikileaks subject to prosecution as well. In 2011, an unknown person in Cambridge, Massachusettes, had received a subpoena regarding the Espionage Act's "conspiracy" clause , as well as the federal embezzlement law , a statute used in some other Espionage Act-related cases. Greenwald says this is "probably" related to wikileaks. A grand jury has begun meeting in Alexandria, Virginia, to hear evidence and decide whether an indictment should be brought.
See also
General topics- SeditionSeditionIn law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any...
, EspionageEspionageEspionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, lest the legitimate holder of the information change plans or take other countermeasures once it... - TreasonTreasonIn law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
, Misprision of treasonMisprision of treasonMisprision of treason is an offence found in many common law jurisdictions around the world, having been inherited from English law. It is committed by someone who knows a treason is being or is about to be committed but does not report it to a proper authority... - Industrial espionageIndustrial espionageIndustrial espionage, economic espionage or corporate espionage is a form of espionage conducted for commercial purposes instead of purely national security purposes...
Related law
- Alien and Sedition ActsAlien and Sedition ActsThe Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...
(late 1700s) - Intelligence in the American Revolutionary WarIntelligence in the American Revolutionary WarIntelligence in the American Revolutionary War was essentially monitored and sanctioned by the Continental Congress to provide military intelligence to the Continental Army to aid them in fighting the British during the American Revolutionary War...
- Defense Secrets Act of 1911Defense Secrets Act of 1911The Defense Secrets Act of 1911 was one of the first laws in the United States specifically criminializing the disclosure of government secrets. It was based in part on the British Official Secrets Act and criminalized obtaining or delivering "information respecting the national defense, to which...
(precursor) - Venona projectVenona projectThe VENONA project was a long-running secret collaboration of the United States and United Kingdom intelligence agencies involving cryptanalysis of messages sent by intelligence agencies of the Soviet Union, the majority during World War II...
(evidence issues) - Executive Order 9835Executive Order 9835President Harry S. Truman signed United States Executive Order 9835, sometimes known as the "Loyalty Order", on March 21, 1947. The order established the first general loyalty program in the United States, designed to root out communist influence in the U.S. federal government...
(President Truman) - McCarran Internal Security ActMcCarran Internal Security ActThe Internal Security Act of 1950, , also known as the Subversive Activities Control Act or the McCarran Act, after Senator Pat McCarran , is a United States federal law of the McCarthy era. It was passed over President Harry Truman's veto...
(1950) - Intelligence Identities Protection ActIntelligence Identities Protection ActThe Intelligence Identities Protection Act of 1982 is a United States federal law that makes it a federal crime for those with access to classified information, or those who systematically seek to identify and expose covert agents and have reason to believe that it will harm the foreign...
- Non-Detention ActNon-Detention ActThe Non-Detention Act of 1971 was passed to repeal portions of McCarran Internal Security Act of 1950, , specifically Title II, the "Emergency Detention Act". It had allowed for detention of suspected subversives without the normal Constitutional checks required for imprisonment. The Non-Detention...
(1971) - Computer Fraud and Abuse ActComputer Fraud and Abuse ActThe Computer Fraud and Abuse Act is a law passed by the United States Congress in 1986, intended to reduce cracking of computer systems and to address federal computer-related offenses...
1980s (inherited some language) - Economic Espionage Act of 1996Economic Espionage Act of 1996The Economic Espionage Act of 1996 was a 6 title Act of Congress dealing with a wide range of issues, including not only industrial espionage , but the insanity defense, the Boys & Girls Clubs of America, requirements for presentence investigation reports, and the United...
- Moynihan Commission on Government SecrecyMoynihan Commission on Government SecrecyCommission on Protecting and Reducing Government Secrecy, also called the Moynihan Secrecy Commission, was a bipartisan statutory commission in the United States created under Title IX of the Foreign Relations Authorization Act for Fiscal Years 1994 and 1995 Commission on Protecting and Reducing...
- Inciting subversion of state powerInciting subversion of state powerInciting subversion of state power is a crime under the law of the People's Republic of China. It is article 105, paragraph 2 of the 1997 revision of the People's Republic of China's Penal Code....
(China) - Article 58 (RSFSR Penal Code)Article 58 (RSFSR Penal Code)Article 58 of the Russian SFSR Penal Code was put in force on 25 February 1927 to arrest those suspected of counter-revolutionary activities. It was revised several times...
(Soviet Russia) - Berufsbeamtengesetz, Reichstag Fire DecreeReichstag Fire DecreeThe Reichstag Fire Decree is the common name of the Decree of the Reich President for the Protection of People and State issued by German President Paul von Hindenburg in direct response to the Reichstag fire of 27 February 1933. The decree nullified many of the key civil liberties of German...
, The Malicious Practices Act 1933The Malicious Practices Act 1933The Malicious Practices Act was passed on the 21st March 1933 in Nazi Germany. It was part of a series of events that occurred within 1933, which marked the brutality and resilience of the Nazi party. From here on life for thousands of Germans would be controlled and monitored for those dubbed as...
(Nazi Germany)
Related persons
- Seymour StedmanSeymour StedmanSeymour Stedman was a prominent civil liberties lawyer and a leader of the Socialist Party of America. He is best remembered as the 1920 Vice Presidential candidate of the Socialist Party of America, when he ran for office on a ticket headed by Eugene V...
- Rose Pastor StokesRose Pastor StokesRose Harriet Pastor Stokes was a Jewish-American socialist activist, writer, birth control advocate, and feminist. She was active in labor politics and women's issues, and was a founding member of the Communist Party of America in 1919. She was a figure of some public notoriety for having married...
- Dreyfus affairDreyfus AffairThe Dreyfus affair was a political scandal that divided France in the 1890s and the early 1900s. It involved the conviction for treason in November 1894 of Captain Alfred Dreyfus, a young French artillery officer of Alsatian Jewish descent...
- Lynne StewartLynne StewartLynne Irene Stewart is a former attorney who represented controversial, poor, and often unpopular defendants who was convicted on charges of conspiracy and providing material support to terrorists in 2005, and sentenced to 28 months in prison. Her felony conviction led to her being automatically...
Further reading
- Kohn, Stephen M. American Political Prisoners: Prosecutions under the Espionage and Sedition Acts Westport, CT: Praeger, 1994
- Murphy, Paul L. World War I and the Origin of Civil Liberties in the United States New York: W. W. NortonW. W. NortonW. W. Norton & Company is an independent American book publishing company based in New York City. It is well known for its "Norton Anthologies", particularly the Norton Anthology of English Literature and the "Norton Critical Editions" series of texts which are frequently assigned in university...
, 1979 - Peterson, H.C., and Gilbert C. Fite. Opponents of War, 1917-1918 Madison: University of Wisconsin PressUniversity of Wisconsin PressThe University of Wisconsin Press is a non-profit university press publishing peer-reviewed books and journals. It primarily publishes work by scholars from the global academic community but also serves the citizens of Wisconsin by publishing important books about Wisconsin, the Upper Midwest, and...
, 1957 - Preston, William, Jr. Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933 2nd ed. Urbana: University of Illinois PressUniversity of Illinois PressThe University of Illinois Press , is a major American university press and part of the University of Illinois system. Founded in 1918, the press publishes some 120 new books each year, plus 33 scholarly journals, and several electronic projects...
, 1994 - Rabban, David M. Free Speech in Its Forgotten Years New York: Cambridge University PressCambridge University PressCambridge University Press is the publishing business of the University of Cambridge. Granted letters patent by Henry VIII in 1534, it is the world's oldest publishing house, and the second largest university press in the world...
, 1997 - Scheiber, Harry N. The Wilson Administration and Civil Liberties 1917-1921 Ithaca: Cornell University PressCornell University PressThe Cornell University Press, established in 1869 but inactive from 1884 to 1930, was the first university publishing enterprise in the United States.A division of Cornell University, it is housed in Sage House, the former residence of Henry William Sage....
, 1960 - Thomas, William H., Jr. Unsafe for Democracy: World War I and the U.S. Justice Department's Covert Campaign to Suppress Dissent Madison: University of Wisconsin Press, 2008
External links
- Secrecy and Security Library, Federation of American Scientists
- Excerpt from the original (1917) U.S. Espionage Act
- The United States v. Rose Pastor Stokes (1918)
- Freedom of Speech, Zechariah ChafeeZechariah ChafeeZechariah Chafee, Jr. was an American judicial philosopher and civil libertarian. An advocate for free speech, he was described by Senator Joseph McCarthy as "dangerous" to the United States...
, 1920 (Google Books ebook)