The Espionage Act of 1917

The Espionage Act of 1917 (extended by the Sedition Act of 1918), mentioned on the FBI search warrant for Mar-a-lago, is one of the most hastily written and draconian laws in the American federal criminal code. Let’s concede that there are matters of vital national security that every nation keeps top secret and that laws need to be in place to protect deadly state secrets, to avoid nuclear war, for example.  The Espionage Act covers those things, but quite a bit more, and in its present form, is a nightmarish legal quagmire in many respects to anyone charged under it.  For one thing, there is virtually no defense available, the First Amendment, for example, is not a viable defense.

The Espionage Act, (full name: An Act to punish acts of interference with the foreign relations, and the foreign commerce of the United States, to punish espionage and better enforce the criminal laws of the United States, and for other purposes) was passed two months after the US entered World War One against Germany.  It was designed to criminalize dissent against a deliberately promoted war in Europe that over a hundred years later nobody can untangle the reasons for, except that a lot of money belonging to the richest men in the world (and loaned to Britain and France) was riding on the roulette wheel of the outcome of this war of colonial superpowers.  Woodrow Wilson unleashed a massive, modern advertising blitz to sell the “war to end war” and “the war to make the world safe for democracy”  to initially skeptical Americans, who eventually signed up for it in a fervor of calculatedly stirred patriotic passion.  Anyone with any influence who was publicly critical of Wilson’s drive to war became an internal enemy, subject to the harsh justice of the Espionage Act.

The law made it criminal to give “aid and comfort to the enemy” by, for example,  making public statements calling into question the government’s overriding national interest in prosecuting a war, for any reason imaginable. This broadness was included specifically for the purpose of making sure the United States entered and remained in this war on the side of the Allies (who owed the wealthiest Americans an untold fortune by the middle of the war, a fortune that would be lost if Germany won).  The Espionage Act made otherwise First Amendment protected free speech a criminal offense, akin to treason, in time of war.  It prohibits “any disloyal, profane, scurrilous or abusive language about the form of government of the United States… or the flag.” 

The devilish genius of this statute is that intent is not an element of the crime under the Espionage Act, all you have to do is anything that prosecutors can argue gave aid and comfort to the enemy.  That’s why Julian Assange is on the verge of suicide, because he’s facing life imprisonment under this law where his intention in making public what he considered matters of grave public concern, such as video proof of at least one war crime, an aerial attack by a US helicopter crew against unarmed noncombatants in Iraq,  cannot be introduced as part of his defense.   Edward Snowden, same deal, no matter how strong a case he can make for the immense public importance of his disclosure of vast secret government surveillance of American citizens, under the Espionage Act his intentions, even the actual effects of his disclosure, are 100% irrelevant to his guilt or innocence. 

It is a unique and brutal law, which, in its day, put many critics of the “war to end war” in prison.  Popular American Socialist leader and presidential candidate Eugene V. Debs was convicted and sentenced to ten years during World War I for charges under the Espionage Act. It is used periodically (though very rarely) as a power move to chill dissent.  I personally don’t forgive Obama for deploying it many times (he set the post World War One record for Espionage Act prosecutions) against journalists and others who could fairly be called whistleblowers. It should be removed from the books, or dramatically improved, but while it is good law it is the perfect law to prosecute someone who keeps denying he has any intent to ever do anything except be perfect and a persecuted savior of the people who are under threat from so many sick and dangerous enemies, it’s unbelievable!

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