United States federal law
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as ...
enacted on June 15, 1917, shortly after the United States entered
World War I
World War I (28 July 1914 11 November 1918), often abbreviated as WWI, was List of wars and anthropogenic disasters by death toll, one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, ...
. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War & National Defense) but is now found under Title 18 (Crime & Criminal Procedure). Specifically, it is ( et seq.)
It was intended to prohibit interference with
military operation
A military operation is the coordinated military actions of a state, or a non-state actor, in response to a developing situation. These actions are designed as a military plan to resolve the situation in the state or actor's favor. Operations ...
s or
recruitment
Recruitment is the overall process of identifying, sourcing, screening, shortlisting, and interviewing candidates for jobs (either permanent or temporary) within an organization. Recruitment also is the processes involved in choosing individua ...
, to prevent insubordination in the military, and to prevent the support of United States enemies during wartime. In 1919, the
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...
freedom of speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
of those convicted under its provisions. The
constitutionality
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
of the law, its relationship to free speech, and the meaning of its language have been contested in court ever since.
Among those charged with offenses under the Act are German-American socialist congressman and newspaper editor
Victor L. Berger
Victor Luitpold Berger (February 28, 1860August 7, 1929) was an Austrian–American socialist politician and journalist who was a founding member of the Social Democratic Party of America and its successor, the Socialist Party of America. Born i ...
, labor leader and five-time
Socialist Party of America
The Socialist Party of America (SPA) was a 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 of Ameri ...
anarchists
Anarchism is a political philosophy and movement that is skeptical of all justifications for authority and seeks to abolish the institutions it claims maintain unnecessary coercion and hierarchy, typically including, though not necessari ...
Emma Goldman
Emma Goldman (June 27, 1869 – May 14, 1940) was a Russian-born anarchist political activist and writer. She played a pivotal role in the development of anarchist political philosophy in North America and Europe in the first half of the ...
and
Alexander Berkman
Alexander Berkman (November 21, 1870June 28, 1936) was a Russian-American anarchist and author. He was a leading member of the anarchist movement in the early 20th century, famous for both his political activism and his writing.
Be ...
Joseph Franklin Rutherford
Joseph Franklin Rutherford (November 8, 1869 – January 8, 1942), also known as Judge Rutherford, was the second president of the incorporated Watch Tower Bible and Tract Society of Pennsylvania. He played a primary role in the organization ...
, communists
Julius and Ethel Rosenberg
Julius Rosenberg (May 12, 1918 – June 19, 1953) and Ethel Rosenberg (; September 28, 1915 – June 19, 1953) were American citizens who were convicted of spying on behalf of the Soviet Union. The couple were convicted of providing top-secret i ...
, ''
Pentagon Papers
The ''Pentagon Papers'', officially titled ''Report of the Office of the Secretary of Defense Vietnam Task Force'', is a United States Department of Defense history of the United States' political and military involvement in Vietnam from 1945 ...
''
whistleblower
A whistleblower (also written as whistle-blower or whistle blower) is a person, often an employee, who reveals information about activity within a private or public organization that is deemed illegal, immoral, illicit, unsafe or fraudulent. Whi ...
Daniel Ellsberg
Daniel Ellsberg (born April 7, 1931) is an American political activist, and former United States military analyst. While employed by the RAND Corporation, Ellsberg precipitated a national political controversy in 1971 when he released the '' Pen ...
Chelsea Manning
Chelsea Elizabeth Manning (born Bradley Edward Manning; December 17, 1987) is an American activist and whistleblower. She is a former United States Army soldier who was convicted by court-martial in July 2013 of violations of the Espionage A ...
,
WikiLeaks
WikiLeaks () is an international non-profit organisation that published news leaks and classified media provided by anonymous sources. Julian Assange, an Australian Internet activist, is generally described as its founder and director and ...
founder
Julian Assange
Julian Paul Assange ( ; Hawkins; born 3 July 1971) is an Australian editor, publisher, and activist who founded WikiLeaks in 2006. WikiLeaks came to international attention in 2010 when it published a series of leaks provided by U.S. Army int ...
,
Defense Intelligence Agency
The Defense Intelligence Agency (DIA) is an intelligence agency and combat support agency of the United States Department of Defense, specializing in defense and military intelligence.
A component of the Department of Defense (DoD) and the ...
National Security Agency
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
(NSA) contractor and whistleblower
Edward Snowden
Edward Joseph Snowden (born June 21, 1983) is an American and naturalized Russian former computer intelligence consultant who leaked highly classified information from the National Security Agency (NSA) in 2013, when he was an employee and su ...
. Rutherford's conviction was overturned on appeal. Although the most controversial sections of the Act, a set of amendments commonly called the Sedition Act of 1918, were repealed on December 13, 1920, the original Espionage Act was left intact. In 1921-1923, Presidents Warren Harding and Calvin Coolidge released all those convicted under the Sedition and Espionage Acts.
Enactment
The Espionage Act of 1917 was passed, along with the
Trading with the Enemy Act
Trading with the Enemy Act is a stock short title used for legislation in the United Kingdom and the United States relating to trading with the enemy.
''Trading with the Enemy Acts'' is also a generic name for a class of legislation generally ...
, just after the United States entered World War I in April 1917. It was based on the Defense Secrets Act of 1911, especially the notions of obtaining or delivering information relating to "national defense" to a person who was not "entitled to have it". The Espionage Act law imposed much stiffer penalties than the 1911 law, including the death penalty.
President
Woodrow Wilson
Thomas Woodrow Wilson (December 28, 1856February 3, 1924) was an American politician and academic who served as the 28th president of the United States from 1913 to 1921. A member of the Democratic Party, Wilson served as the president of ...
, in his December 7, 1915
State of the Union
The State of the Union Address (sometimes abbreviated to SOTU) is an annual message delivered by the president of the United States to a joint session of the United States Congress near the beginning of each calendar year on the current condit ...
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, 1917, the House did not vote before the then-current session of Congress ended. After the declaration of war in April 1917, both houses debated versions of the Wilson administration's drafts that included press censorship. That provision aroused opposition, with critics charging it established a system of "
prior restraint
Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression. It is in contrast to censorship ...
" 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, after Congress passed the act on the same day.
Attorney General
Thomas Watt Gregory
Thomas Watt Gregory (November 6, 1861February 26, 1933) was an American politician and lawyer. He was a progressive and attorney who served as US Attorney General from 1914 to 1919 under US President Woodrow Wilson.
Early life
Gregory was born ...
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
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
to the
War Department War Department may refer to:
* War Department (United Kingdom)
* United States Department of War (1789–1947)
See also
* War Office, a former department of the British Government
* Ministry of defence
* Ministry of War
* Ministry of Defence
* D ...
and creating a form of courts-martial of doubtful constitutionality. The resulting Act was far more aggressive and restrictive than they wanted, but it silenced citizens opposed to the war. 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 was denied language in the Act authorizing power to the executive branch for press censorship, but Congress did include a provision to block distribution of print materials through the Post Office.
It made it a crime:
* To convey information with the intent to interfere with the operation or success of the
armed forces of the United States
The United States Armed Forces are the military forces of the United States. The armed forces consists of six service branches: the Army, Marine Corps, Navy, Air Force, Space Force, and Coast Guard. The president of the United States is the ...
or to promote its enemies' success. This was punishable by death or 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
A Postmaster General, in Anglosphere countries, is the chief executive officer of the postal service of that country, a ministerial office responsible for overseeing all other postmasters. The practice of having a government official responsib ...
authority to impound or refuse to mail publications the postmaster determined to violate 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 D. Roosevelt, when he sought to provide military aid to Great Britain before the United States entered
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the World War II by country, vast majority of the world's countries—including all of the great power ...
.
Amendments
The law was extended on May 16, 1918, by the Sedition Act of 1918, actually a set of amendments to the Espionage Act, which prohibited many forms of speech, including "any disloyal, profane, scurrilous, or abusive language about the form of government of the United States ... or the flag of the United States, or the uniform of the Army or Navy".
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.
In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
Title 18, Part 1, Chapter 37.
In 1933, after signals intelligence expert
Herbert Yardley
Herbert Osborn Yardley (April 13, 1889 – August 7, 1958) was an American cryptologist. He founded and led the cryptographic organization the Black Chamber. Under Yardley, the cryptanalysts of The American Black Chamber broke Japanese diplomat ...
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 to apply everywhere was prompted by Irvin C. Scarbeck, a State Department official who was charged with yielding to blackmail threats in
Poland
Poland, officially the Republic of Poland, is a country in Central Europe. It is divided into 16 administrative provinces called voivodeships, covering an area of . Poland has a population of over 38 million and is the fifth-most populou ...
.
Proposed amendments
In 1989, Congressman James Traficant tried to amend to broaden the application of the death penalty. Senator
Arlen Specter
Arlen Specter (February 12, 1930 – October 14, 2012) was an American lawyer, author and politician who served as a United States Senator from Pennsylvania from 1981 to 2011. Specter was a Democrat from 1951 to 1965, then a Republican fr ...
proposed a comparable expansion of the use of the death penalty the same year. In 1994,
Robert K. Dornan
Robert Kenneth Dornan (born April 3, 1933) is an American politician and actor from California. A Republican, Dornan served in the United States House of Representatives from 1977 to 1983 and from 1985 to 1997. He has become well known for publi ...
proposed the death penalty for the disclosure of a U.S. agent's identity.
History
World War I
Much of the Act's enforcement was left to the discretion of local
United States Attorney
United States attorneys are officials of the U.S. Department of Justice who serve as the chief federal law enforcement officers in each of the 94 U.S. federal judicial districts. Each U.S. attorney serves as the United States' chief federal ...
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 prison for five years for delivering her speech in North Dakota. Most enforcement activities occurred in the Western states where the
Industrial Workers of the World
The Industrial Workers of the World (IWW), members of which are commonly termed "Wobblies", is an international labor union that was founded in Chicago in 1905. The origin of the nickname "Wobblies" is uncertain. IWW ideology combines general ...
was active. Finally, a few weeks before the end of the war, the U.S. Attorney General instructed U.S. Attorneys not to act without his approval.
A year after the Act's passage, Eugene V. Debs,
Socialist Party
Socialist Party is the name of many different political parties around the world. All of these parties claim to uphold some form of socialism, though they may have very different interpretations of what "socialism" means. Statistically, most of ...
presidential candidate in 1904, 1908, and 1912 was arrested and sentenced to 10 years in prison for making a speech that "obstructed recruiting". He ran for president again in 1920 from prison. President Warren G. Harding commuted his sentence in December 1921 when he had served nearly five years.
In ''United States v. Motion Picture Film'' (1917), a federal court upheld the government's seizure of a film called '' The Spirit of '76'' on the grounds that its depiction of cruelty on the part of British soldiers during the American Revolution would undermine support for America's wartime ally. The producer, Robert Goldstein, a Jew of German origins, was prosecuted under Title XI of the Act and received a ten-year sentence plus a fine of $5000. The sentence was commuted on appeal to three years.
Postmaster General
Albert S. Burleson
Albert Sidney Burleson (June 7, 1863 – November 24, 1937) was a progressive Democrat who served as United States Postmaster General and Representative in Congress. He was a strong supporter of William Jennings Bryan and Woodrow Wilson, so Wils ...
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 the President and the Attorney General. 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 ( ) is the oldest city in the U.S. state of Georgia (U.S. state), Georgia and is the county seat of Chatham County, Georgia, Chatham County. Established in 1733 on the Savannah River, the city of Savannah became the Kingdom of Great Br ...
, and
Tampa, Florida
Tampa () is a city on the Gulf Coast of the U.S. state of Florida. The city's borders include the north shore of Tampa Bay and the east shore of Old Tampa Bay. Tampa is the largest city in the Tampa Bay area and the seat of Hillsborough ...
, 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
''The Masses'' was a graphically innovative magazine of socialist politics published monthly in the United States from 1911 until 1917, when federal prosecutors brought charges against its editors for conspiring to obstruct conscription. It was ...
'', a socialist monthly, citing the publication's "general tenor". ''The Masses'' was more successful in the courts, where Judge
Learned Hand
Billings Learned Hand ( ; January 27, 1872 – August 18, 1961) was an American jurist, lawyer, and judicial philosopher. He served as a federal trial judge on the U.S. District Court for the Southern District of New York from 1909 to 1924 an ...
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 vigorous enforcement overreached when he targeted supporters of the administration. The president warned him to exercise "the utmost caution", and the dispute proved the end of their political friendship.
In May 1918, sedition charges were laid under the Espionage Act against
Watch Tower Bible and Tract Society
The Watch Tower Bible and Tract Society of Pennsylvania is a non-stock, not-for-profit organization headquartered in Warwick, New York. It is the main legal entity used worldwide by Jehovah's Witnesses to direct, administer and disseminate do ...
president "Judge" Joseph Rutherford and seven other Watch Tower directors and officers over statements made in the society's book, ''The Finished Mystery'', published a year earlier. According to the book ''Preachers Present Arms'' by Ray H. Abrams, the passage (from page 247) found to be particularly objectionable reads: "Nowhere in the New Testament is patriotism (a narrowly minded hatred of other peoples) encouraged. Everywhere and always murder in its every form is forbidden. And yet under the guise of patriotism civil governments of the earth demand of peace-loving men the sacrifice of themselves and their loved ones and the butchery of their fellows, and hail it as a duty demanded by the laws of heaven." The officers of the Watchtower Society were charged with attempting to cause insubordination, disloyalty, refusal of duty in the armed forces and obstructing the recruitment and enlistment service of the U.S. while it was at war. The book had been banned in Canada since February 1918 for what a
Winnipeg
Winnipeg () is the capital and largest city of the province of Manitoba in Canada. It is centred on the confluence of the Red and Assiniboine rivers, near the longitudinal centre of North America. , Winnipeg had a city population of 749 ...
newspaper described as "seditious and antiwar statements" and described by Attorney General Gregory as dangerous propaganda. On June 21 seven of the directors, including Rutherford, were sentenced to the maximum 20 years' imprisonment for each of four charges, to be served concurrently. They served nine months in the Atlanta Penitentiary before being released on bail at the order of Supreme Court Justice
Louis Brandeis
Louis Dembitz Brandeis (; November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939.
Starting in 1890, he helped develop the " right to privacy" concep ...
. In April 1919, an appeal court ruled they had not had the "intemperate and impartial trial of which they were entitled" and reversed their conviction. In May 1920 the government announced that all charges had been dropped.
Red Scare, Palmer Raids, mass arrests, deportations
During the
Red Scare
A Red Scare is the promotion of a widespread fear of a potential rise of communism, anarchism or other leftist ideologies by a society or state. The term is most often used to refer to two periods in the history of the United States which ar ...
of 1918–19, in response to the 1919 anarchist bombings aimed at prominent government officials and businessmen, U.S.
Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
J. Edgar Hoover
John Edgar Hoover (January 1, 1895 – May 2, 1972) was an American law enforcement administrator who served as the first Director of the Federal Bureau of Investigation (FBI). He was appointed director of the Bureau of Investigation ...
, then head of the Justice Department's Enemy Aliens Registration Section, prosecuted several hundred foreign-born known and suspected activists in the United States under the Sedition Act of 1918. This extended the Espionage Act to cover a broader range of offenses. After being convicted, persons including
Emma Goldman
Emma Goldman (June 27, 1869 – May 14, 1940) was a Russian-born anarchist political activist and writer. She played a pivotal role in the development of anarchist political philosophy in North America and Europe in the first half of the ...
and
Alexander Berkman
Alexander Berkman (November 21, 1870June 28, 1936) was a Russian-American anarchist and author. He was a leading member of the anarchist movement in the early 20th century, famous for both his political activism and his writing.
Be ...
were deported to the Soviet Union on a ship the press called the " Soviet Ark".
Many of the jailed had appealed their convictions based on the U.S. constitutional right to the freedom of speech. The Supreme Court disagreed. The Espionage Act limits on free speech were ruled constitutional in the U.S. Supreme Court case '' Schenck v. United States'' (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 must be limited to such political expression that constitutes a " clear and present danger" to the government action at issue. Holmes' opinion is the origin of the notion that speech equivalent to "falsely shouting fire in a crowded theater" is not protected by the First Amendment.
Justice Holmes began to doubt his decision due to criticism 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 Russian Revolution was a period of political and social revolution that took place in the former Russian Empire which began during the First World War. This period saw Russia abolish its monarchy and adopt a socialist form of government ...
. The concept of bad tendency was used to justify speech restriction. The defendant was deported. Justices Holmes and Brandeis, however, dissented, with Holmes arguing that "nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so."
In March 1919, President Wilson, at the suggestion of Attorney General
Thomas Watt Gregory
Thomas Watt Gregory (November 6, 1861February 26, 1933) was an American politician and lawyer. He was a progressive and attorney who served as US Attorney General from 1914 to 1919 under US President Woodrow Wilson.
Early life
Gregory was born ...
, pardoned or commuted the sentences of some 200 prisoners convicted under the Espionage Act or the Sedition Act. By early 1921, the Red Scare had faded, Palmer left government, and the Espionage Act fell into relative disuse.
World War II
Prosecutions under the Act were much less numerous during World War II than during World War I. Associate Justice
Frank Murphy
William Francis Murphy (April 13, 1890July 19, 1949) was an American politician, lawyer and jurist from Michigan. He was a Democrat who was named to the Supreme Court of the United States in 1940 after a political career that included serving ...
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 '' Gorin v. United States'' (early 1941), the Supreme Court ruled on many constitutional questions surrounding the act.
The Act was used in 1942 to deny a mailing permit to Father
Charles Coughlin
Charles Edward Coughlin ( ; October 25, 1891 – October 27, 1979), commonly known as Father Coughlin, was a Canadian-American Catholic priest based in the United States near Detroit. He was the founding priest of the National Shrine of the ...
's weekly ''
Social Justice
Social justice is justice in terms of the distribution of wealth, opportunities, and privileges within a society. In Western and Asian cultures, the concept of social justice has often referred to the process of ensuring that individuals ...
'', effectively ending its distribution to subscribers. It was part of Attorney General Francis Biddle's attempt to close down what he called "vermin publications". Coughlin had been criticized for virulently anti-Semitic writings.
The same year, a June front-page story by Stanley Johnston in the ''
Chicago Tribune
The ''Chicago Tribune'' is a daily newspaper based in Chicago, Illinois, United States, owned by Tribune Publishing. Founded in 1847, and formerly self-styled as the "World's Greatest Newspaper" (a slogan for which WGN radio and television ar ...
'', headlined "Navy Had Word of Jap Plan to Strike at Sea", implied that the Americans had broken the Japanese codes before the
Battle of Midway
The Battle of Midway was a major naval battle in the Pacific Theater of World War II that took place on 4–7 June 1942, six months after Japan's attack on Pearl Harbor and one month after the Battle of the Coral Sea. The U.S. Navy under ...
. The story resulted in the Japanese changing their codebooks and callsign systems. The newspaper publishers were brought before a
grand jury
A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a p ...
for possible indictment, but proceedings were halted because of government reluctance to present a jury with the highly secret information necessary to prosecute the publishers, as well as concern that a trial would attract more attention to the case.
In 1945, six associates of ''
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.
Publicati ...
'' magazine, a journal of Far Eastern affairs, came under suspicion after publishing articles that bore similarity to
Office of Strategic Services
The Office of Strategic Services (OSS) was the intelligence agency of the United States during World War II. The OSS was formed as an agency of the Joint Chiefs of Staff (JCS) to coordinate espionage activities behind enemy lines for all branc ...
reports. The government proposed using the Espionage Act against them. However, it later softened its approach, changing the charges to Embezzlement of Government Property (now ). A grand jury cleared three of the associates, two associates paid small fines, and charges against the sixth man were dropped. Senator
Joseph McCarthy
Joseph Raymond McCarthy (November 14, 1908 – May 2, 1957) was an American politician who served as a Republican United States Senate, U.S. Senator from the state of Wisconsin from 1947 until his death in 1957. Beginning in 1950, McCarth ...
said the failure to aggressively prosecute the defendants was a communist conspiracy. According to Klehr and Radosh, the case helped build his later 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 States'' (1941) was cited in many later espionage cases for its discussion of the charge of "vagueness", an 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 project
The Venona project was a United States counterintelligence program initiated during World War II by the United States Army's Signal Intelligence Service (later absorbed by the National Security Agency), which ran from February 1, 1943, until Oc ...
decryptions, the
Elizabeth Bentley
Elizabeth Terrill Bentley (January 1, 1908 – December 3, 1963) was an American spy and member of the Communist Party USA (CPUSA). She served the Soviet Union from 1938 to 1945 until she defected from the Communist Party and Soviet intellige ...
case, the
atomic spies
Atomic spies or atom spies were people in the United States, the United Kingdom, and Canada who are known to have illicitly given information about nuclear weapons production or design to the Soviet Union during World War II and the early ...
cases, the First Lightning Soviet nuclear test, and others. Many suspects were surveilled, but never prosecuted. These investigations were dropped, as seen in the FBI Silvermaster Files. There were also many successful prosecutions and convictions under the Act.
In August 1950,
Julius and Ethel Rosenberg
Julius Rosenberg (May 12, 1918 – June 19, 1953) and Ethel Rosenberg (; September 28, 1915 – June 19, 1953) were American citizens who were convicted of spying on behalf of the Soviet Union. The couple were convicted of providing top-secret i ...
were indicted under Title 50, sections 32a and 34, in connection with giving nuclear secrets to the Soviet Union. Anatoli Yakovlev was indicted as well. In 1951, Morton Sobell and David Greenglass were indicted. After a controversial trial in 1951, the Rosenbergs were sentenced to death. They were executed in 1953, making their two sons orphans. The boys were adopted by another family. In the late 1950s, several members of the
Soble spy ring
As early as the 1920s, the Soviet Union, through its GRU, OGPU, NKVD, and KGB intelligence agencies, used Russian and foreign-born nationals ( resident spies), as well as Communists of American origin, to perform espionage activities in the Unite ...
Myra Soble
Myra Soble (March 18, 1904 – 1992) together with her husband Jack Soble was tried and jailed for her involvement in the Soble spy ring.
Biography
Soble (née Perske) was born on March 18, 1904, in Nikolaev, Ukraine, Russia. She wa ...
, 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
In 1948, some portions of the
United States Code
In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
were reorganized. Much of Title 50 (War and National Defense) was moved to
Title 18
Title 18 of the United States Code is the main criminal code of the federal government of the United States. The Title deals with federal crimes and criminal procedure. In its coverage, Title 18 is similar to most U.S. state criminal codes, w ...
(Crimes and Criminal Procedure). Thus Title 50 Chapter 4, Espionage, (Sections 31–39), became Title 18, 794 and following. As a result, certain older cases, such as the Rosenberg case, are now listed under Title 50, while newer cases are often listed under Title 18.
1950 McCarran Internal Security Act
In 1950, during the
McCarthy Period
McCarthyism is the practice of making false or unfounded accusations of subversion and treason, especially when related to anarchism, communism and socialism, and especially when done in a public and attention-grabbing manner.
The term orig ...
, Congress passed the McCarran Internal Security Act over President Harry S. Truman's veto. It modified a large body of law, including espionage law. One addition was , 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. It may make "mere retention" of information a crime no matter 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 (November 11, 1904 – November 15, 1996) was an American government official accused in 1948 of having spied for the Soviet Union in the 1930s. Statutes of limitations had expired for espionage, but he was convicted of perjury in co ...
and the "
Pumpkin Papers
The Pumpkin Papers are a set of typewritten, handwritten, and microfilmed documents, stolen from the US federal government (thus information leaks) by members of the Ware Group and other Soviet spy networks in Washington, DC, during 1937-1938, wi ...
".
Judicial review, 1960s and 1970s
Brandenburg
Court decisions of this era changed the standard for enforcing some provisions of the Espionage Act. Though not a case involving charges under the Act, ''Brandenburg v. Ohio'' (1969) changed the "clear and present danger" test derived from ''Schenck'' to the "
imminent lawless action
"Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under the First Amendment of the United States Constitution. The standard was first established in 1969 in the Unite ...
" test, a considerably stricter test of the inflammatory nature of speech.
''Pentagon Papers''
In June 1971,
Daniel Ellsberg
Daniel Ellsberg (born April 7, 1931) is an American political activist, and former United States military analyst. While employed by the RAND Corporation, Ellsberg precipitated a national political controversy in 1971 when he released the '' Pen ...
felony
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that res ...
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 ''Pentagon Papers'', officially titled ''Report of the Office of the Secretary of Defense Vietnam Task Force'', is a United States Department of Defense history of the United States' political and military involvement in Vietnam from 1945 ...
''. 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. However, they were freed due to a mistrial based on irregularities in the government's case.Correll, John T. The Pentagon Papers ''Air Force Magazine'', February 2007.
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 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 Dinh Hung (aka David Truong) and Ronald Louis Humphrey were convicted under 793(a), (c), and (e) as well as several other laws. The ruling discussed several constitutional questions regarding espionage law, "vagueness", the difference between
classified information
Classified information is material that a government body deems to be sensitive information that must be protected. Access is restricted by law or regulation to particular groups of people with the necessary security clearance and need to kn ...
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.
East Germany
East Germany, officially the German Democratic Republic (GDR; german: Deutsche Demokratische Republik, , DDR, ), was a country that existed from its creation on 7 October 1949 until German reunification, its dissolution on 3 October 1990. In t ...
, 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.''The New York Times'' "East German Enters Guilty Plea to Buying Secret U.S. Documents", February 25, 1985 accessed December 8, 2010 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.''The New York Times'' accessed December 8, 2010; ''Los Angeles Times'' "U.S. Swaps 4 Red Spies for 25 Held as Western Agents", June 11, 1985 accessed December 8, 2010
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". U.S. Navy civilian Jonathan Pollard was charged with violating , for selling classified information to Israel. His 1986 plea bargain did not get him out of a life sentence, after a 'victim impact statement' including a statement by
Caspar Weinberger
Caspar Willard Weinberger (August 18, 1917 – March 28, 2006) was an American statesman and businessman. As a prominent Republican, he served in a variety of state and federal positions for three decades, including chairman of the Californ ...
. Larry Wu-Tai Chin, at CIA, was also charged with violating for selling info to China. Ronald Pelton was prosecuted for violating , , & , for selling out to the Soviets, and interfering with
Operation Ivy Bells
Operation Ivy Bells was a joint United States Navy, Central Intelligence Agency (CIA), and National Security Agency (NSA) mission whose objective was to place wire taps on Soviet underwater communication lines during the Cold War.
Background
...
.
Edward Lee Howard
Edward Lee Victor Howard (27 October 1951 – 12 July 2002) was a CIA case officer who defected to the Soviet Union.
Pre-CIA career
Howard served as a Peace Corps volunteer in Bucaramanga, Colombia. There he met Mary Cedarleaf in 1973, and they ...
was an ex-Peace Corps and ex-CIA agent charged under for allegedly dealing with the Soviets. The FBI's website says the 1980s was the "decade of the spy", with dozens of arrests.
Seymour Hersh
Seymour Myron "Sy" Hersh (born April 8, 1937) is an American Investigative journalism, investigative journalist and political writer.
Hersh first gained recognition in 1969 for exposing the My Lai Massacre and its cover-up during the Vietnam Wa ...
wrote an article entitled "The Traitor" arguing against Pollard's release.
Morison
Samuel Loring Morison was a government security analyst who worked on the side for '' Jane's'', a British military and defense publisher. He was arrested on October 1, 1984,''The New York Times'' Stephen Engelberg, "Spy Photos' Sale Leads to Arrest", October 3, 1984 accessed March 11, 2011 though investigators never demonstrated any intent to provide information to a hostile intelligence service. Morison told investigators that he sent classified satellite photographs to ''Jane's'' because the "public should be aware of what was going on on the other side", meaning that the Soviets' new nuclear-powered aircraft carrier would transform the USSR's military capabilities. He said that "if the American people knew what the Soviets were doing, they would increase the defense budget." British intelligence sources thought his motives were patriotic. However, American prosecutors emphasized Morison's economic gain and complaints about his government job.
The prosecution of Morison was used as part of a broader campaign against leaks of information as a "test case" for applying the Act to cover the disclosure of information to the press. A March 1984 government report had noted that "the unauthorized publication of classified information is a routine daily occurrence in the U.S." but that the applicability of the Espionage Act to such disclosures "is not entirely clear". ''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."''Time'' accessed March 11, 2011
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 December 4, 1985. The Supreme Court declined to hear his appeal in 1988. Morison became "the only
merican
''Merican'' is an EP by the American punk rock band the Descendents, released February 10, 2004. It was the band's first release for Fat Wreck Chords and served as a pre-release to their sixth studio album ''Cool to Be You'', released the follo ...
government official ever convicted for giving classified information to the press" up to that time. Following Senator
Daniel Patrick Moynihan
Daniel Patrick Moynihan (March 16, 1927 – March 26, 2003) was an American politician, diplomat and sociologist. A member of the Democratic Party, he represented New York in the United States Senate from 1977 until 2001 and served as a ...
's 1998 appeal for a pardon for Morison, President
Bill Clinton
William Jefferson Clinton (né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and again ...
pardoned him on January 20, 2001, the last day of his presidency,''The New York Times'' Anthony_Lewis ,_"Abroad_at_Home;_The_Pardons_in_Perspective",_March_3,_2001.html" ;"title="Anthony Lewis">Anthony Lewis , "Abroad at Home; The Pardons in Perspective", March 3, 2001">Anthony Lewis">Anthony Lewis , "Abroad at Home; The Pardons in Perspective", March 3, 2001 accessed March 11, 2011 despite the CIA's opposition to the pardon.''The New York Times'' James Risen, "Clinton Did Not Consult C.I.A. Chief on Pardon, Official Says", February 17, 2001 accessed March 11, 2011
The successful prosecution of Morison was used to warn against the publication of leaked information. In May 1986, CIA Director William J. 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
Christopher John Boyce of TRW, and his accomplice Andrew Daulton Lee, sold out to the Soviets and went to prison in the 1970s. Their activities were the subject of the movie
The Falcon and the Snowman
''The Falcon and the Snowman'' is a 1985 American spy drama film directed by John Schlesinger. The screenplay by Steven Zaillian is based on the 1979 book ''The Falcon and the Snowman: A True Story of Friendship and Espionage'' by Robert Lin ...
.
In the 1980s, several members of the
Walker spy ring
Walker or The Walker may refer to:
People
*Walker (given name)
* Walker (surname)
* Walker (Brazilian footballer) (born 1982), Brazilian footballer
Places
In the United States
* Walker, Arizona, in Yavapai County
* Walker, Mono County, Californ ...
were prosecuted and convicted of espionage for the Soviets.
In 1980, David Henry Barnett was the first active CIA officer to be convicted under the act.
In 1994, CIA officer
Aldrich Ames
Aldrich Hazen "Rick" Ames (; born May 26, 1941) is a former Central Intelligence Agency (CIA) officer turned KGB double agent, who was convicted of espionage in 1994. He is serving a life sentence, without the possibility of parole, in the Fede ...
was convicted under of spying for the Soviets; Ames had revealed the identities of several U.S. sources in the USSR to the KGB, who were then executed.
FBI agent
Earl Edwin Pitts
:''This article describes Earl Pitts, the American spy. For the radio character, see Earl Pitts (radio character).''
Earl Edwin Pitts (born September 23, 1953) is a former FBI special agent who was convicted of espionage for selling information ...
was arrested in 1996 under and of spying for the Soviet Union and later for the Russian Federation.
In 1997, senior CIA officer
Harold James Nicholson
Harold James Nicholson (born November 17, 1950) is a former Central Intelligence Agency (CIA) officer who was twice convicted of spying for Russia's Foreign Intelligence Service (SVR).
Nicholson's recruitment to the SVR appears to have occurr ...
was convicted of espionage for the Russians.
In 1998, NSA contractor
David Sheldon Boone
David Sheldon Boone (born August 26, 1952) is a former U.S. Army signals analyst who worked for the National Security Agency (NSA) and was convicted of espionage-related charges in 1999 related to his sale of secret documents to the Soviet Unio ...
was charged with having handed over a 600-page technical manual to the Soviets c. 1988-1991 ().
In 2000, FBI agent Robert Hanssen was convicted under the Act of spying for the Soviets in the 1980s and Russia in the 1990s.
1990s critiques
In the 1990s, Senator
Daniel Patrick Moynihan
Daniel Patrick Moynihan (March 16, 1927 – March 26, 2003) was an American politician, diplomat and sociologist. A member of the Democratic Party, he represented New York in the United States Senate from 1977 until 2001 and served as a ...
deplored the "culture of secrecy" made possible by the Espionage Act, noting the tendency of bureaucracies to enlarge their powers by increasing the scope of what is held "secret".
In the late 1990s, Wen Ho Lee of
Los Alamos National Laboratory
Los Alamos National Laboratory (often shortened as Los Alamos and LANL) is one of the sixteen research and development laboratories of the United States Department of Energy (DOE), located a short distance northwest of Santa Fe, 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
The W88 is an American thermonuclear warhead, with an estimated yield of , 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 pres ...
nuclear warhead had been transferred to China. Lee had made
backup
In information technology, a backup, or data backup is a copy of computer data taken and stored elsewhere so that it may be used to restore the original after a data loss event. The verb form, referring to the process of doing so, is "back up", ...
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
A plea bargain (also plea agreement or plea deal) is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or ''nolo contendere.'' This may mean that the defendant ...
, he pleaded guilty to one count under the Espionage Act. The judge apologized to him for having believed the government. Lee later won more than a million dollars in a lawsuit against the government and several newspapers for their mistreatment of him.Wen Ho Lee, ''My Country Versus Me: The First-Hand Account by the Los Alamos Scientist who was Falsely Accused of being a Spy'' (Hyperion, 2002)
21st century
In 2001, retired Army Reserve Colonel George Trofimoff, the most senior U.S. military officer to be indicted under the Act, was convicted of conducting espionage for the Soviets in the 1970s–1990s.
Kenneth Wayne Ford Jr. was indicted under 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.
In 2005, Pentagon Iran expert Lawrence Franklin, along with AIPAC lobbyists Rosen and Weissman were indicted under the Act. Franklin pleaded guilty to conspiracy to disclose national defense information to the lobbyists and an Israeli government official. Franklin was sentenced to more than 12 years in prison, but the sentence was later reduced to 10 months of home confinement.
Under the
Obama
Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the ...
and
Trump administration
Donald Trump's tenure as the List of presidents of the United States, 45th president of the United States began with Inauguration of Donald Trump, his inauguration on January 20, 2017, and ended on January 20, 2021. Trump, a Republican Party ...
espionage
Espionage, spying, or intelligence gathering is the act of obtaining secret or confidential information ( intelligence) from non-disclosed sources or divulging of the same without the permission of the holder of the information for a tang ...
but either withholding information or communicating with members of the media. Out of a total of eleven prosecutions under the Espionage Act against government officials accused of providing classified information to the media, seven have occurred since Obama took office. "Leaks related to national security can put people at risk," the President said at a news conference in 2013. "They can put men and women in uniform that I've sent into the battlefield at risk. I don't think the American people would expect me, as commander in chief, not to be concerned about information that might compromise their missions or might get them killed."
*
Jeffrey Alexander Sterling
Jeffrey Alexander Sterling is an American lawyer and former CIA employee who was arrested, charged, and convicted of violating the Espionage Act for revealing details about Operation Merlin (covert operation to supply Iran with flawed nuclear warh ...
, a former
CIA
The Central Intelligence Agency (CIA ), known informally as the Agency and historically as the Company, is a civilian foreign intelligence service of the federal government of the United States, officially tasked with gathering, processing, ...
officer was indicted under the Act in January 2011 for alleged unauthorized disclosure of national defense information to
James Risen
James Risen (born April 27, 1955) is an American journalist for ''The Intercept''. He previously worked for ''The New York Times'' and before that for ''Los Angeles Times''. He has written or co-written many articles concerning U.S. government ...
, a reporter for ''
The New York Times
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'', in 2003. Risen published the leaked material in his 2006 book ''
State of War
A declaration of war is a formal act by which one state announces existing or impending war activity against another. The declaration is a performative speech act (or the signing of a document) by an authorized party of a national government, in ...
'', which revealed details about the CIA's covert spy war with Iran. Risen refused to reveal the source of his information when subpoenaed twice by the Justice Department. The indictment stated that Sterling's motive was 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.
*
Thomas Andrews Drake
Thomas Andrews Drake (born 1957) is a former senior executive of the National Security Agency (NSA), a decorated United States Air Force and United States Navy veteran, and a whistleblower. In 2010, the government alleged that Drake mishandled doc ...
– In April 2010,
Thomas Andrews Drake
Thomas Andrews Drake (born 1957) is a former senior executive of the National Security Agency (NSA), a decorated United States Air Force and United States Navy veteran, and a whistleblower. In 2010, the government alleged that Drake mishandled doc ...
, an official with the NSA, was indicted under for alleged willful retention of national defense information. The case arose from investigations into his communications with Siobhan Gorman of ''
The Baltimore Sun
''The Baltimore Sun'' is the largest general-circulation daily newspaper based in the U.S. state of Maryland and provides coverage of local and regional news, events, issues, people, and industries.
Founded in 1837, it is currently owned by T ...
'' and Diane Roark of the
House Intelligence Committee
The United States House Permanent Select Committee on Intelligence (HPSCI), also known as the House Intelligence Committee, is a committee of the United States House of Representatives, currently chaired by Adam Schiff. It is the primary commi ...
as part of his attempt to blow the whistle on several issues, including the NSA's
Trailblazer project
Trailblazer was a United States National Security Agency (NSA) program intended to develop a capability to analyze data carried on Telecommunications network, communications networks like the Internet. It was intended to track entities using commun ...
. Considering the prosecution of Drake, investigative journalist
Jane Mayer
Jane Meredith Mayer (born 1955) is an American investigative journalist who has been a staff writer for ''The New Yorker'' since 1995. She has written for the publication about money in politics; government prosecution of whistleblowers; the Uni ...
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."
*
Shamai Leibowitz
Shamai Kedem Leibowitz, also known as Samuel Shamai Leibowitz, is an American lawyer and blogger who was convicted of leaking classified FBI information to another blogger.FBI, admitted sharing information with a blogger and pleaded guilty under to one count of disclosure of classified information. As part of a plea bargain, he was sentenced to 20 months in prison.
*
Stephen Jin-Woo Kim Stephen Jin-Woo Kim is a former State Department contractor who pleaded guilty to a felony count of disclosing classified information to Fox News reporter James Rosen. Prosecutors charged that Kim's actions indirectly alerted North Korea to what ...
– In August 2010,
Stephen Jin-Woo Kim Stephen Jin-Woo Kim is a former State Department contractor who pleaded guilty to a felony count of disclosing classified information to Fox News reporter James Rosen. Prosecutors charged that Kim's actions indirectly alerted North Korea to what ...
, a contractor for the
State Department
The United States Department of State (DOS), or State Department, is an executive department of the U.S. federal government responsible for the country's foreign policy and relations. Equivalent to the ministry of foreign affairs of other na ...
and a specialist in nuclear proliferation, was indicted under for alleged disclosure in June 2009 of national defense information to reporter James Rosen of
Fox News Channel
The Fox News Channel, abbreviated FNC, commonly known as Fox News, and stylized in all caps, is an American multinational conservative cable news television channel based in New York City. It is owned by Fox News Media, which itself is ...
Chelsea Manning
Chelsea Elizabeth Manning (born Bradley Edward Manning; December 17, 1987) is an American activist and whistleblower. She is a former United States Army soldier who was convicted by court-martial in July 2013 of violations of the Espionage A ...
– In 2010,
Chelsea Manning
Chelsea Elizabeth Manning (born Bradley Edward Manning; December 17, 1987) is an American activist and whistleblower. She is a former United States Army soldier who was convicted by court-martial in July 2013 of violations of the Espionage A ...
, the
United States Army
The United States Army (USA) is the land service branch of the United States Armed Forces. It is one of the eight U.S. uniformed services, and is designated as the Army of the United States in the U.S. Constitution.Article II, section 2, ...
Private First Class
Private first class (french: Soldat de 1 classe; es, Soldado de primera) is a military rank held by junior enlisted personnel in a number of armed forces.
French speaking countries
In France and other French speaking countries, the rank (; ...
accused of the largest leak of state secrets in U.S. history, was charged under Article 134 of the
Uniform Code of Military Justice
The Uniform Code of Military Justice (UCMJ, 10 U.S.C. §§ 801–946 is the foundation of Military justice, military law in the United States. It was established by the United States Congress in accordance with the authority given by the United S ...
, which incorporates parts of the Espionage Act . At the time, critics worried that the broad language of the Act could make news organizations, and anyone who reported, printed or disseminated information from WikiLeaks, subject to prosecution, although former prosecutors pushed back, citing Supreme Court precedent expanding First Amendment protections. On July 30, 2013, following a judge-only trial by court-martial lasting eight weeks, Army judge Colonel Denise Lind convicted Manning on six counts of violating the Espionage Act, among other infractions. She was sentenced to serve a 35-year sentence at the maximum-security U.S. Disciplinary Barracks at Fort Leavenworth. On January 17, 2017, President Barack Obama commuted Manning's sentence to nearly seven years of confinement dating from her arrest on May 27, 2010.
* John Kiriakou – In January 2012, John Kiriakou, former CIA officer and later Democratic staffer on the Senate Foreign Relations Committee, was charged under the Act with leaking information to journalists about the identity of undercover agents, including one who was allegedly involved in
waterboarding
Waterboarding is a form of torture in which water is poured over a cloth covering the face and breathing passages of an immobilized captive, causing the person to experience the sensation of drowning. In the most common method of waterboard ...
interrogations of
al-Qaeda
Al-Qaeda (; , ) is an Islamic extremist organization composed of Salafist jihadists. Its members are mostly composed of Arabs, but also include other peoples. Al-Qaeda has mounted attacks on civilian and military targets in various countr ...
logistics chief Abu Zubaydah. Kiriakou is alleged to have also disclosed an investigative technique used to capture Zubaydah in Pakistan in 2002. He was sentenced to 30 months in prison on January 25, 2013, and was released in 2015.
*
Edward Snowden
Edward Joseph Snowden (born June 21, 1983) is an American and naturalized Russian former computer intelligence consultant who leaked highly classified information from the National Security Agency (NSA) in 2013, when he was an employee and su ...
– In June 2013,
Edward Snowden
Edward Joseph Snowden (born June 21, 1983) is an American and naturalized Russian former computer intelligence consultant who leaked highly classified information from the National Security Agency (NSA) in 2013, when he was an employee and su ...
was charged under the Espionage Act after releasing documents exposing the NSA's PRISM Surveillance Program. Specifically, he was charged with "unauthorized communication of national defense information" and "willful communication of classified intelligence with an unauthorized person".
* Reality Leigh Winner – In June 2017, Reality Leigh Winner was arrested and charged with "willful retention and transmission of national defense information," a felony under the Espionage Act. Her arrest was announced on June 5 after ''
The Intercept
''The Intercept'' is an American left-wing news website founded by Glenn Greenwald, Jeremy Scahill, Laura Poitras and funded by billionaire eBay co-founder Pierre Omidyar. Its current editor is Betsy Reed. The publication initially report ...
'' published an article describing Russian attempts to interfere with the 2016 presidential election, based on classified
National Security Agency
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
(NSA) documents leaked to them anonymously. On June 8, 2017, she pleaded not guilty and was denied bail. On June 21, 2018, Winner asked the court to allow her to change her plea to guilty and on June 26 she pleaded guilty to one count of felony transmission of national defense information. Winner's plea agreement with prosecutors called for her to serve five years and three months in prison followed by three years of supervised release. On August 23, 2018, at a federal court in Georgia, Winner was sentenced to the agreed-upon length of time for violating the Espionage Act. Prosecutors said her sentence was the longest ever imposed in federal court for an unauthorized release of government information to the media.
* Terry J. Albury – Albury was indicted under the Espionage Act of 1917. In 2018, he pled guilty and was sentenced to 4 years in prison. Albury was a 17-year veteran of the FBI. He stated that he was motivated to inform the public about the systematic racist and xenophobic practices he witnessed as the only black agent in the Minneapolis field office, and the son of an Ethiopian refugee as he was tasked with surveillance of Muslim and immigrant communities.
*
Julian Assange
Julian Paul Assange ( ; Hawkins; born 3 July 1971) is an Australian editor, publisher, and activist who founded WikiLeaks in 2006. WikiLeaks came to international attention in 2010 when it published a series of leaks provided by U.S. Army int ...
– On May 23, 2019, Australian editor, publisher, and
activist
Activism (or Advocacy) consists of efforts to promote, impede, direct or intervene in social, political, economic or environmental reform with the desire to make changes in society toward a perceived greater good. Forms of activism range fro ...
Julian Assange was charged with violating the Espionage Act by seeking classified information. The case has been described as having significant implications for
press freedom
Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic media, especially published materials, should be considered a right to be exerc ...
and the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
.
*
Daniel Hale
Daniel Everette Hale (born 1987/1988) is an American whistleblower and former National Security Agency (NSA) intelligence analyst who sent classified information about drone warfare to the press. Hale served in the United States Air Force 200 ...
- in 2019, US Air Force veteran and military contractor Daniel Hale was indicted on three charges under the Espionage Act for leaking classified documents about the US military's drone program to a journalist. The journalist was not named in the indictment but is likely to be a reference to Jeremy Scahill, a journalist for ''
The Intercept
''The Intercept'' is an American left-wing news website founded by Glenn Greenwald, Jeremy Scahill, Laura Poitras and funded by billionaire eBay co-founder Pierre Omidyar. Its current editor is Betsy Reed. The publication initially report ...
Drone Papers
The Drone Papers is a leak of national security documents published by '' The Intercept'' in October 2015 on the United States's use of drone warfare
Drone warfare is a form of aerial warfare using unmanned combat aerial vehicles (UCAV) ...
. In April 2021, Hale pleaded guilty to one count, under the Espionage Act, of unlawful retention and transmission of "national defense information". The prosecution asked that a trial on the remaining charges be postponed until after sentencing.
*
Donald Trump
Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021.
Trump graduated from the Wharton School of the University of P ...
- On August 12, 2022, an unsealed FBI search warrant revealed that Donald Trump, the 45th President of the United States, was under investigation for possible violations of the Espionage Act. On August 8, 2022, the FBI raided his Mar-a-Lago home and found classified material. That classified material allegedly included materials related to
nuclear weapons
A nuclear weapon is an explosive device that derives its destructive force from nuclear reactions, either fission (fission bomb) or a combination of fission and fusion reactions ( thermonuclear bomb), producing a nuclear explosion. Both bom ...
. The Justice Department also became concerned that Trump was storing official presidential records at his home in violation of the Presidential Records Act which mandates that all presidential documents be preserved and submitted to the National Archives.
Criticism
Numerous people have criticized the use of the Espionage Act against national security leakers. A 2015 study by the
PEN American Center
PEN America (formerly PEN American Center), founded in 1922 and headquartered in New York City, is a nonprofit organization that works to defend and celebrate free expression in the United States and worldwide through the advancement of liter ...
found that almost all of the non-government representatives they interviewed, including activists, lawyers, journalists, and whistleblowers, "thought the Espionage Act had been used inappropriately in leak cases that have a public interest component." PEN wrote, "experts described it as 'too blunt an instrument,' 'aggressive, broad and suppressive,' a 'tool of intimidation,' 'chilling of free speech,' and a 'poor vehicle for prosecuting leakers and whistleblowers.'"
Pentagon Papers
The ''Pentagon Papers'', officially titled ''Report of the Office of the Secretary of Defense Vietnam Task Force'', is a United States Department of Defense history of the United States' political and military involvement in Vietnam from 1945 ...
whistleblower
A whistleblower (also written as whistle-blower or whistle blower) is a person, often an employee, who reveals information about activity within a private or public organization that is deemed illegal, immoral, illicit, unsafe or fraudulent. Whi ...
Daniel Ellsberg
Daniel Ellsberg (born April 7, 1931) is an American political activist, and former United States military analyst. While employed by the RAND Corporation, Ellsberg precipitated a national political controversy in 1971 when he released the '' Pen ...
said, "the current state of whistleblowing prosecutions under the Espionage Act makes a truly fair trial wholly unavailable to an American who has exposed classified wrongdoing," and that "legal scholars have strongly argued that the US Supreme Court – which has never yet addressed the constitutionality of applying the Espionage Act to leaks to the American public – should find the use of it overbroad and unconstitutional in the absence of a public interest defense." Professor at American University
Washington College of Law
The American University Washington College of Law (AUWCL or WCL) is the law school of American University, a private research university in Washington, D.C. It is located on the western side of Tenley Circle in the Tenleytown section of nort ...
and national security law expert
Stephen Vladeck
Stephen Isaiah Vladeck (born September 26, 1979) is the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, where he specializes in national security law, especially with relation to the prosecution of war cr ...
has said that the law “lacks the hallmarks of a carefully and precisely defined statutory restriction on speech.” Trevor Timm, executive director of the Freedom of the Press Foundation, said, "basically any information the whistleblower or source would want to bring up at trial to show that they are not guilty of violating the Espionage Act the jury would never hear. It's almost a certainty that because the law is so broadly written that they would be convicted no matter what." Attorney and former whistleblower
Jesselyn Radack
Jesselyn Radack (born December 12, 1970) is an American national security and human rights attorney known for her defense of whistleblowers, journalists, and hacktivists. She graduated from Brown University and Yale Law School and began her caree ...
notes that the law was enacted "35 years before the word 'classification' entered the government's lexicon" and believes that "under the Espionage Act, no prosecution of a non-spy can be fair or just." She added that mounting a legal defense to the Espionage Act is estimated to "cost $1 million to $3 million." In May 2019, the ''
Pittsburgh Post-Gazette
The ''Pittsburgh Post-Gazette'', also known simply as the PG, is the largest newspaper serving metropolitan Pittsburgh, Pennsylvania. Descended from the ''Pittsburgh Gazette'', established in 1786 as the first newspaper published west of the Alle ...
'' editorial board published an opinion piece making the case for an amendment to allow a public-interest defense, as "the act has since become a tool of suppression, used to punish whistleblowers who expose governmental wrongdoing and criminality".
In an interview with Fairness & Accuracy in Reporting, journalist Chip Gibbons said that it was "almost impossible, if not impossible, to mount a defense" against charges under the Espionage Act. Gibbons said defendants are not allowed to use the term "whistleblower", mention the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
, raise the issue of over-classification of documents, or explain the reasons for their actions.
Venona project
The Venona project was a United States counterintelligence program initiated during World War II by the United States Army's Signal Intelligence Service (later absorbed by the National Security Agency), which ran from February 1, 1943, until Oc ...
Intelligence Identities Protection Act
The 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 ...
*
Non-Detention Act
The Non-Detention Act of 1971 was passed to repeal portions of McCarran Internal Security Act of 1950, specifically Title II, the "Emergency Detention Act". The United States statute repealed the Emergency Detention Act of 1950 provisioning the ...
(1971)
*
Economic Espionage Act of 1996
The Economic Espionage Act of 1996 () was a 6 title Act of Congress dealing with a wide range of issues, including not only industrial espionage (''e.g.'', the theft or misappropriation of a trade secret and the National Information Infrastructu ...
*
Moynihan Commission on Government Secrecy The Commission on Protecting and Reducing Government Secrecy, also called the Moynihan Commission, after its chairman, U.S. Senator Daniel Patrick Moynihan, was a bipartisan statutory commission in the United States. It was created under Title IX o ...
;Related persons
*
Seymour Stedman
Seymour "Stedy" Stedman (July 4, 1871 – July 9, 1948) was an American from Chicago who rose from shepherd and janitor to become a prominent civil liberties lawyer and a leader of the Socialist Party of America. He is best remembered as the ...
*
Lynne Stewart
Lynne Irene Stewart (October 8, 1939 – March 7, 2017) was an American defense attorney who was known for representing controversial, famous defendants. She herself was convicted on charges of conspiracy and providing material support to terro ...
*
Rose Pastor Stokes
Rose Harriet Pastor Stokes (née Wieslander; July 18, 1879 – June 20, 1933) was an American socialist activist, writer, birth control advocate, and feminist. She was a figure of some public notoriety after her 1905 marriage to Episcopalian mill ...
;Persons considered whistleblowers and charged under the Act
*
Thomas Andrews Drake
Thomas Andrews Drake (born 1957) is a former senior executive of the National Security Agency (NSA), a decorated United States Air Force and United States Navy veteran, and a whistleblower. In 2010, the government alleged that Drake mishandled doc ...
*
Daniel Ellsberg
Daniel Ellsberg (born April 7, 1931) is an American political activist, and former United States military analyst. While employed by the RAND Corporation, Ellsberg precipitated a national political controversy in 1971 when he released the '' Pen ...
*
Stephen Jin-Woo Kim Stephen Jin-Woo Kim is a former State Department contractor who pleaded guilty to a felony count of disclosing classified information to Fox News reporter James Rosen. Prosecutors charged that Kim's actions indirectly alerted North Korea to what ...
Shamai Leibowitz
Shamai Kedem Leibowitz, also known as Samuel Shamai Leibowitz, is an American lawyer and blogger who was convicted of leaking classified FBI information to another blogger.Chelsea Manning
Chelsea Elizabeth Manning (born Bradley Edward Manning; December 17, 1987) is an American activist and whistleblower. She is a former United States Army soldier who was convicted by court-martial in July 2013 of violations of the Espionage A ...
Edward Snowden
Edward Joseph Snowden (born June 21, 1983) is an American and naturalized Russian former computer intelligence consultant who leaked highly classified information from the National Security Agency (NSA) in 2013, when he was an employee and su ...
*
Jeffrey Alexander Sterling
Jeffrey Alexander Sterling is an American lawyer and former CIA employee who was arrested, charged, and convicted of violating the Espionage Act for revealing details about Operation Merlin (covert operation to supply Iran with flawed nuclear warh ...
*
Reality Winner
Reality Leigh Winner (born December 4, 1991) is an American former enlisted US Air Force member and NSA translator. In 2018, she was given the longest prison sentence ever imposed for unauthorized release of government information to the media a ...
References
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. Norton & Company, 1979.
* Peterson, H.C., and Gilbert C. Fite. ''Opponents of War, 1917-1918''. Madison:
University of Wisconsin Press
The University of Wisconsin Press (sometimes abbreviated as UW Press) is a non-profit university press publishing peer-reviewed books and journals. It publishes work by scholars from the global academic community; works of fiction, memoir and po ...
, 1957.
* Preston, William Jr. ''Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933'' 2nd ed. Urbana:
University of Illinois Press
The University of Illinois Press (UIP) is an American university press and is 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 project ...
, 1994.
* Rabban, David M. ''Free Speech in Its Forgotten Years''. New York:
Cambridge University Press
Cambridge University Press is the university press of the University of Cambridge. Granted letters patent by Henry VIII of England, King Henry VIII in 1534, it is the oldest university press
A university press is an academic publishing hou ...
, 1997.
* Scheiber, Harry N. ''The Wilson Administration and Civil Liberties 1917-1921''. Ithaca:
Cornell University Press
The Cornell University Press is the university press of Cornell University; currently housed in Sage House, the former residence of Henry William Sage. It was first established in 1869, making it the first university publishing enterprise in th ...
, 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.
NYTimes
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...