The Espionage Act, long overdue for repeal

Three days before the Japanese attack on Pearl Harbor, the isolationist and ultra-conservative Chicago Tribune carried a screaming headline announcing “FDR’s WAR PLANS,” and revealing a secret, detailed War Department plan on going to war with Nazi Germany in 1943.No military secret of such magnitude had ever been revealed before — or arguably, since, for that matter — and at a Cabinet meeting the next day, Roosevelt’s attorney general, Francis Biddle, urged the president to prosecute the two newspapers. Roosevelt refused. Biddle’s weapon against the treasonous Tribune was the Espionage Act, passed amid anti-German hysteria two months after the United States entered the Great War in 1917 and rarely used since. Woodrow Wilson used it and a Sedition Act passed in 1918 to jail his critics, including Eugene Debs, the Socialist candidate for president in 1916, who opposed military service. It was a main government in “the Red Scare” just after the war as well. Roosevelt, an undersecretary in the Wilson Cabinet, remembered the abuses under the Act in that first war and wouldn’t give it a role in the second.The Sedition law was allowed to expire in 1921 after President Harding, the owner of a small Ohio newspaper, commuted Debs’ sentence and invited him to the White House. But the Espionage Act, though it produced only three prosecutions between the Wilson and Obama administrations and none at all during the desperate years of World War II, remains the law of the land.And it’s a law of the land that is enjoying something of a revival. Let me say it again. After World War I and through the George W. Bush presidency, the Espionage Act was used three times. In the Obama years thus far, its use is up to six times and counting. “Setting aside the case of Pfc. Bradley Manning, an Army Intelligence analyst who is accused of stealing thousands of secret documents, the majority of the recent prosecutions seem to have everything to do with administrative secrecy and very little to do with national security,” David Carr wrote in The New York Times more than a year ago, before the Associated Press and Fox News prosecutions. And even the Manning case, involving an Army private first class subject to military justice, could have been dealt without resorting to that notorious remnant of wartime hysteria.As Carr also pointed out, another of the cases concerned a former CIA agent who leaked information to The Times and other journalists about the agency’s involvement in waterboarding. “For those of you keeping score,” wrote Mr. Carr, “none of the individuals who engaged in or authorized the waterboarding of terror suspects have been prosecuted.”My favorite is Thomas Drake, a former National Security Agency employee, who told The Baltimore Sun his agency was about to buy a software program from a private vendor for hundreds of millions of dollars when it already had a better program the agency had developed on its own at a much lower cost. Drake, who was right about all of this, was charged with 10 felony counts of lying to investigators and obstructing justice, charges that carried 35 years in federal prison. The case collapsed in 2011 but the Justice Department nailed him on a misdemeanor count of misusing a government computer.The Espionage Act says that a person lawfully in possession of information that the government has classified as secret who turns it over to someone not lawfully entitled to possess it has committed a crime. That covers PFC. Manning but it also covers Drake.The Act also says that anyone who conspires to help the source turn over classified government has committed the same crime. That would criminalize reporters for doing their jobs. The search warrant accusing Fox reporter James Rosen of being a co-conspirator in stealing secrets charged him with “employing flattery” and playing to the “vanity and ego” of his source, which reporters also do sometimes to get a story without realizing it’s seditious. Attorney General Eric Holder, under attack from the right, left and media, has agreed to work on guidelines designed to avoid prosecuting journalists for doing their jobs. Current guidelines don’t even cover email. A good step after that would be repealing the law. Simsbury resident Dick Ahles is a retired journalist. Email him at dahles@hotmail.com.