The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War) but is now found under Title 18, Crime. Specifically, it is 18 U.S.C.ch. 37 (18 U.S.C. § 792 et seq.)
It was intended to prohibit interference with military operations or recruitment, 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 unanimously ruled through Schenck v. United States that the act did not violate the freedom of speech of those convicted under its provisions. The constitutionality of the law, its relationship to free speech, and the meaning of its language have been contested in court ever since.
Among those charged with offences under the Act are German-American socialist congressman and newspaper editor Victor L. Berger, labor leader and five time Socialist Party of America candidate, Eugene V. Debs, anarchists Emma Goldman and Alexander Berkman, former Watch Tower Bible & Tract Society president Joseph Franklin Rutherford, communists Julius and Ethel Rosenberg, Pentagon PaperswhistleblowerDaniel Ellsberg, Cablegate whistleblower Chelsea Manning, and National Security Agency (NSA) contractor and whistleblower Edward Snowden. 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Although the most controversial sections of the Act, a set of amendments commonly called the Sedition Act of 1918, were repealed on March 3, 1921, the original Espionage Act was left intact.
The Espionage Act of 1917 was passed, along with the Trading with the Enemy Act, just after the United States entered World War I in April 1917. It was based on the Defense Secrets Act of 1911, especially the notions of obtaining or delivering information relating to "national defense" to a person who was not "entitled to have it", itself based on an earlier British Official Secrets Act. The Espionage Act law imposed much stiffer penalties than the 1911 law, including the death penalty.
President Woodrow Wilson, in his December 7, 1915 State of the Union address, asked Congress for the legislation:
There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue ...
I urge you to enact such laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. They are not many, but they are infinitely malignant, and the hand of our power should close over them at once. They have formed plots to destroy property, they have entered into conspiracies against the neutrality of the Government, they have sought to pry into every confidential transaction of the Government in order to serve interests alien to our own. It is possible to deal with these things very effectually. I need not suggest the terms in which they may be dealt with.
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" 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 supported passage of the act, but viewed it as a compromise. The President's Congressional rivals were proposing to remove responsibility for monitoring pro-German activity, whether espionage or some form of disloyalty, from the Department of Justice to the War Department and creating a form of courts-martial of doubtful constitutionality. The resulting Act was far more aggressive and restrictive than they wanted, but it 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 intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies. This was punishable by death or by imprisonment for not more than 30 years or both.
- To convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. This was punishable by a maximum fine of $10,000 or by imprisonment for not more than 20 years or both.
The Act also gave the Postmaster General authority to impound or to refuse to mail publications that he determined to be in violation of its prohibitions.
The Act also forbids the transfer of any naval vessel equipped for combat to any nation engaged in a conflict in which the United States is neutral. Seemingly uncontroversial when the Act was passed, this later became a legal stumbling block for the administration of Franklin D. Roosevelt, when he sought to provide military aid to Great Britain before the United States entered World War II.
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. Title 18, Part 1, Chapter 37.
In 1933, after signals intelligence expert Herbert Yardley published a popular book about breaking Japanese codes, the Act was amended to prohibit the disclosure of foreign code or anything sent in code. The Act was amended in 1940 to increase the penalties it imposed, and again in 1970.
In the late 1940s, the U.S. Code was re-organized and much of Title 50 (War) was moved to Title 18 (Crime). The McCarran Internal Security Act added 18 U.S.C. § 793(e) in 1950 and 18 U.S.C. § 798 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" 18 U.S.C. § 791. 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.
In 1989, Congressman James Traficant tried to amend 18 U.S.C. § 794 to broaden the application of the death penalty. Senator Arlen Specter proposed a comparable expansion of the use of the death penalty the same year. In 1994, Robert K. Dornan proposed the death penalty for the disclosure of a U.S. agent's identity.
World War I
Much of the Act's enforcement was left to the discretion of local United States Attorneys, so enforcement varied widely. For example, Socialist Kate Richards O'Hare gave the same speech in several states, but was convicted and sentenced to a prison term of five years for delivering her speech in North Dakota. Most enforcement activity occurred in the Western states where the Industrial Workers of the World was active. Finally Gregory, a few weeks before the end of the war, instructed the U.S. Attorneys not to act without his approval.
A year after the Act's passage, Eugene V. Debs, Socialist Party presidential candidate in 1904, 1908, and 1912 was arrested and sentenced to 10 years in prison for making a speech that "obstructed recruiting". He ran for president again in 1920 from prison. President Warren G. Harding commuted his sentence in December 1921 when he had served nearly 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 and those in his department played critical roles in the enforcement of the Act. He held his position because he was a Democratic party loyalist and close to both the President and the Attorney General. At a time when the Department of Justice numbered its investigators in the dozens, the Post Office had a nationwide network in place. The day after the Act became law, Burleson sent a secret memo to all postmasters ordering them to keep "close watch on ... matter which is calculated to interfere with the success of ... the government in conducting the war". Postmasters in Savannah, Georgia, and Tampa, Florida, refused to mail the Jeffersonian, the mouthpiece of Tom Watson, a southern populist, an opponent of the draft, the war, and minority groups. When Watson sought an injunction against the postmaster, the federal judge who heard the case called his publication "poison" and denied his request. Government censors objected to the headline "Civil Liberty Dead". In New York City, the postmaster refused to mail The Masses, a socialist monthly, citing the publication's "general tenor". The Masses was more successful in the courts, where Judge Learned Hand found the Act was applied so vaguely as to threaten "the tradition of English-speaking freedom". The editors were then prosecuted for obstructing the draft and the publication folded when denied access to the mails again. Eventually, Burleson's energetic enforcement overreached when he targeted supporters of the administration. The President warned him to exercise "the utmost caution" 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 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. The book had claimed that patriotism was a delusion and murder, so the officers 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 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. 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
Main articles: Red Scare, Schenck v. United States, and Abrams v. United States
During the Red Scare of 1918–19, in response to the 1919 anarchist bombings aimed at prominent government officials and businessmen, U.S. Attorney GeneralA. Mitchell Palmer, supported by J. Edgar Hoover, then head of the Justice Department's Enemy Aliens Registration Section, used the Sedition Act of 1918, which extended the Espionage Act to cover a broader range of offenses, to deport several hundred foreign-born in the U.S., including Emma Goldman, to the Soviet Union on a ship the press called the "Soviet Ark".
Many of the jailed challenged 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, in 1919. Schenck, an anti-war Socialist, had been convicted of violating the Act when he sent anti-draft pamphlets to men eligible for the draft. Although Supreme Court Justice Oliver Wendell Holmes joined the Court majority in upholding Schenck's conviction in 1919, he also introduced the theory that punishment in such cases is limited to political expression that constitutes a "clear and present danger" to the government action at issue. Holmes' opinion is also the origin of the notion that speech equivalent to "falsely shouting fire in a crowded theater" is not protected by the First Amendment.
Justice Holmes began to doubt his decision due to criticism received from free speech advocates. He also met the Harvard Law professor Zechariah Chafee and discussed his criticism of Schenck.
Later in 1919, in Abrams v. United States, the Supreme Court upheld the conviction of a man who distributed circulars in opposition to American intervention in Russia following the Russian Revolution. The concept of bad tendency was used to justify the restriction of speech. The defendant was deported. Justices Holmes and Brandeis, however, dissented, 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, 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 far less numerous during World War II than they had been during World War I. Associate Justice Frank Murphy noted in 1944 in Hartzel v. United States that "For the first time during the course of the present war, we are confronted with a prosecution under the Espionage Act of 1917." Hartzel, a World War I veteran, had distributed anti-war pamphlets to associations and business groups. The court's majority found that his materials, though comprising "vicious and unreasoning attacks on one of our military allies, flagrant appeals to false and sinister racial theories, and gross libels of the President", did not urge mutiny or any of the other specific actions detailed in the Act, and that he had targeted molders of public opinion, not members of the armed forces or potential military recruits. The court overturned his conviction in a 5–4 decision. The four dissenting justices declined to "intrude on the historic function of the jury" and would have upheld the conviction. In 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 Charles Coughlin's weekly Social Justice, effectively ending its distribution to subscribers. It was part of Attorney General Francis Biddle's attempt to close down what he called "vermin publications".
The same year, a front page story by Stanley Johnston in the Chicago Tribune in June 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 story led the Japanese to change codebooks and callsign systems. The newspaper was brought before a grand jury, but proceedings were halted because of government reluctance to present a jury with 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 magazine, a journal of Far Eastern affairs, came under suspicion after publishing articles that bore similarity to Office of Strategic Services reports. The government proposed using the Espionage Act against them but later softened its approach, changing the charges to Embezzlement of Government Property (now 18 U.S.C. § 641). A grand jury cleared three of the associates, two associates paid small fines, and charges against the sixth man were dropped. Senator Joseph McCarthy believed the failure to aggressively prosecute the defendants was a communist conspiracy and according to Kleht and Radosh, the case helped build his notoriety.
Mid-20th century Soviet spies
Navy employee Hafis Salich sold Soviet agent Mihail Gorin information regarding Japanese activities in the late 1930s. Gorin v. United States was cited in many later espionage cases for its discussion of the charge of "vagueness" argument made against the terminology used in certain portions of the law, such as what constitutes "national defense" information.
Later in the 1940s, several incidents prompted the government to increase its investigations into Soviet espionage. These included the Venona project decryptions, the Elizabeth Bentley case, the atomic spies cases, the First Lightning Soviet nuclear test, and others. Many suspects were surveilled, but never prosecuted and the investigations dropped, as can be seen in the FBI Silvermaster Files. However, there were also many successful prosecutions and convictions under the Act.
In August 1950, Julius and Ethel Rosenberg were indicted under Title 50, sections 32a and 34, in connection with giving nuclear secrets to the Soviet Union. Anatoli Yakovlev was indicted as well. In 1951, Morton Sobell and David Greenglass were indicted. After a controversial trial in 1951, the Rosenbergs were sentenced to death. The sentence was carried out in 1953. In the late 1950s, several members of the Soble spy ring, including Robert Soblen, and Jack and Myra Soble, were prosecuted for espionage. In the mid-1960s, the act was used against James Mintkenbaugh and Robert Lee Johnson, who sold information to the Soviets while working for the U.S. Army in Berlin.
1948 code revision
In 1948, some portions of the United States Code were reorganized. Much of Title 50 (War and National Defense) was moved to Title 18 (Crimes and Criminal Procedure). Thus Title 50 Chapter 4, Espionage, (Sections 31–39), became Title 18, 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, 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 793(e), which had almost exactly the same language as 793(d). According to Edgar and Schmidt, the added section potentially removes the "intent" to harm or aid requirement and may make "mere retention" of information a crime no matter what the intent, covering even former government officials writing their memoirs. They also describe McCarran saying that this portion was intended directly to respond to the case of Alger Hiss and the "Pumpkin Papers".
Judicial review, 1960s and 1970s
Main article: Brandenburg v. Ohio
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" test, a considerably stricter test of the inflammatory nature of speech.
Main article: New York Times Co. v. United States
In June 1971, Daniel Ellsberg and Anthony Russo were charged with a felony under the Espionage Act of 1917, because they lacked legal authority to publish classified documents that came to be known as the Pentagon Papers. The Supreme Court in New York Times Co. v. United States found that the government had not made a successful case for prior restraint of Free Speech, but a majority of the justices ruled that the government could still prosecute the Times and the Post for violating the Espionage Act in publishing the documents. Ellsberg and Russo were not acquitted of violating the Espionage Act, but were freed due to a mistrial based on irregularities in the government's case.
The divided Supreme Court had denied the government's request to restrain the press. In their opinions the justices expressed varying degrees of support for the First Amendment claims of the press against the government's "heavy burden of proof" in establishing that the publisher "has reason to believe" the material published "could be used to the injury of the United States or to the advantage of any foreign nation".
The case prompted Harold Edgar and Benno C. Schmidt Jr. to write an article on espionage law in the 1973 Columbia Law Review. Their article was entitled "The Espionage Statutes and Publication of Defense Information". Essentially they found the law to be poorly written and vague, with parts of it probably unconstitutional. Their article became widely cited in books and in future court arguments on Espionage cases.
United States v. Dedeyan in 1978 was the first prosecution under 793(f)(2) (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 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.
Alfred Zehe, a scientist from East Germany, was arrested in Boston in 1983 after being caught in a government-run sting operation in which he had reviewed classified U.S. government documents in Mexico and East Germany. His attorneys contended without success that the indictment was invalid, arguing that the Espionage Act does not cover the activities of a foreign citizen outside the United States. Zehe then pleaded guilty and was sentenced to 8 years in prison. He was released in June 1985 as part of an exchange of four East Europeans held by the U.S. for 25 people held in Poland and East Germany, none of them American.
One of Zehe's defense attorneys claimed his client was prosecuted as part of "the perpetuation of the 'national-security state' by over-classifying documents that there is no reason to keep secret, other than devotion to the cult of secrecy for its own sake".
The media dubbed 1985 "Year of the Spy". U.S. Navy civilian Jonathan Pollard was charged with 18 U.S.C. § 794(c), 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.Larry Wu-Tai Chin, at CIA, was charged with 18 U.S.C. § 794(c) for selling info to China.Ronald Pelton was dinged for 18 U.S.C. § 794(a), 794(c), & 798(a), for selling out to the Soviets, and ruining Operation Ivy Bells.Edward Lee Howard was an ex-Peace Corps and ex-CIA agent charged with 17 U.S.C. § 794(c) 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 wrote an article entitled "The Traitor" arguing against Pollard's release.
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, 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, but American prosecutors emphasized Morison's personal economic gain and complaints about his government job.
The prosecution of Morison was used as part of a wider 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."
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 [American] government official ever convicted for giving classified information to the press" up to that time. Following Senator Daniel Patrick Moynihan's 1998 appeal for a pardon for Morison, President Bill Clinton pardoned him on January 20, 2001, the last day of his presidency, despite the CIA's opposition to the pardon.
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 & The Snowman.)
In the 1980s, several members of the Walker spy ring 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 was convicted under 18 U.S.C. § 794(c) 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 was arrested in 1996 under 18 U.S.C. § 794(a) and 18 U.S.C. § 794(c) of spying for the Soviet Union and later for the Russian Federation.
In 1997, senior CIA officer Harold James Nicholson was convicted of espionage for the Russians.
In 1998, NSA contractor David Sheldon Boone was charged with having handed over a 600-page technical manual to the Soviets c. 1988-1991 (18 U.S.C. § 794(a)).
In 2000, FBI agent Robert Hanssen was convicted under the Act of spying for the Soviets in the 1980s and Russia in the 1990s.
Other spies of the 1990s
|Brown, Joseph Garfiel||former Airman||Selling info to the Philippines|
|Carney, Jeffrey M||Air Force||East Germany|
|Clark, James Michael, Kurt Allen Stand and Therese Marie Squillacot||Govt contractors||East Germany|
|Charlton, John Douglas||Lockheed||Sold info to an undercover FBI agent posing as a foreign agent|
|Gregory, Jeffery Eugen||Army||Hungary and Czechoslovakia|
|Groat, Douglas Frederick||CIA||Original espionage charges dropped to avoid disclosure at trial.|
|The Cuban Five (Hernández, Guerrero, Labañino, González, and González)||Cuba|
|Hamilton, Frederick Christopher||DIA||Ecuador.|
|Jenott, Eric||Army||charged with Espionage but acquitted.|
|Jones, Geneva||State Department||passing classified info to West African journalist Dominic Ntube|
|Kim, Robert Chaegu||Navy||South Korea|
|Lalas, Steven John||State||Greece|
|Lee, Peter||LANL||China (discussing hohlraums)|
In the 1990s, Senator Daniel Patrick Moynihan 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 (LANL) was indicted under the Act. He and other national security professionals later said he was a "scapegoat"[this quote needs a citation] in the government's quest to determine if information about the W88 nuclear warhead had been transferred to China. Lee had made backup copies at LANL of his nuclear weapons simulations code to protect it in case of a system crash. The code was marked PARD, sensitive but not classified. As part of a plea bargain, he 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.
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 18 U.S.C. § 793(e) 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 administration, seven Espionage Act prosecutions have been related not to traditional espionage but to either withholding information or communicating with members of the media. Out of a total 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, a former CIA agent was indicted under the Act in January 2011 for alleged unauthorized disclosure of national defense information to James Risen, a reporter for The New York Times, in 2003 regarding his book State of War. The indictment described his motive as revenge for the CIA's refusal to allow him to publish his memoirs and its refusal to settle his racial discrimination lawsuit against the Agency. Others have described him as telling Risen about a backfired CIA plot against Iran in the 1990s.
In April 2010, Thomas Andrews Drake, an official with the NSA, was indicted under 18 U.S.C. § 793(e) for alleged willful retention of national defense information. The case arose from investigations into his communications with Siobhan Gorman of The Baltimore Sun and Diane Roark of the House Intelligence Committee as part of his attempt to blow the whistle on several issues, including the NSA's Trailblazer project. Considering the prosecution of Drake, investigative journalist Jane Mayer wrote that "Because reporters often retain unauthorized defense documents, Drake's conviction would establish a legal precedent making it possible to prosecute journalists as spies."
In May 2010, Shamai K. Leibowitz, a translator for the FBI, admitted sharing information with a blogger and pleaded guilty under 18 U.S.C. § 798(a)(3) to one count of disclosure of classified information. As part of a plea bargain, he was sentenced to 20 months in prison.
In August 2010, Stephen Jin-Woo Kim, a contractor for the State Department and a specialist in nuclear proliferation, was indicted under 18 U.S.C. § 793(d) for alleged disclosure in June 2009 of national defense information to reporter James Rosen of Fox News Channel, related to North Korea's plans to test a nuclear weapon.
In 2010, Chelsea (formerly Bradley) Manning, the United States ArmyPrivate First Class 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 Alien and Sedition Acts: Defining American Freedom
The Alien and Sedition Acts of 1798 challenged the Bill of Rights, but ultimately led to a new American definition of freedom of speech and the press.
When John Adams succeeded George Washington as president in 1797, the Federalist Party had controlled Congress and the rest of the national government from the beginning of the new nation. Adams and the other Federalists believed that their political party was the government. The Federalists believed that once the people had elected their political leaders, no one should publicly criticize them.
The Federalist Party, led by Alexander Hamilton, aimed to create a stable and secure country, safe for business and wealthy men of property. The opposition Democratic-Republican Party was bitterly opposed to the Federalists. Led by Thomas Jefferson, it tended to represent poor farmers, craftsmen, and recent immigrants. (The party was commonly referred as the Republicans or Jeffersonians. It was the forerunner of today's Democratic Party.)
In foreign affairs, the Federalists detested the French Revolution of 1789 because it led to mob rule and confiscation of property. The Republicans supported the French Revolution for its democratic ideals.
In 1794, President Washington negotiated a treaty with England to settle outstanding differences between the two countries. The resulting improvement in American-English relations angered the revolutionary French leaders, who were enemies of the English.
In the election of 1796, Federalist John Adams won the most electoral votes to become president. Republican Thomas Jefferson came in second, which made him vice-president. (The 12th Amendment later changed this election method, requiring separate electoral ballots for president and vice-president.)
Shortly after becoming president, Adams sent diplomats to France to smooth over the bad feelings. But three French representatives--dubbed X, Y, and Z--met secretly withthe U.S. diplomats and demanded $10 million in bribes to the French government to begi
n negotiations. When the Americans refused, Mr. X threatened the United States with the "power and violence of France."
News of the "XYZ Affair" enraged most Americans. Many Federalists immediately called for war against France. President Adams, however, only proposed war preparations and a land tax to pay for them. On the defensive, Republicans spoke out against the "war fever."
Neither the United States nor France ever declared war. But the Federalists increasingly accused Jefferson and the Republicans of being a traitorous "French Party." A leading Federalist newspaper proclaimed to the nation, "He that is not for us, is against us."
The Alien Acts
Rumors of a French invasion and enemy spies frightened many Americans. President Adams warned that foreign influence within the United States was dangerous and must be "exterminated."
The Federalist majority in Congress quickly passed four laws in 1798 to make the United States more secure from alien (foreign) spies and domestic traitors. Most of these laws, however, were also intended to weaken Jefferson's Democratic-Republican Party.
The first law, the Naturalization Act, extended the time immigrants had to live in the United States to become citizens from five to 14 years. Since most immigrants favored the Republicans, delaying their citizenship would slow the growth of Jefferson's party.
The Alien Enemies Act provided that once war had been declared, all male citizens of an enemy nation could be arrested, detained, and deported. If war had broken out, this act could have expelled many of the estimated 25,000 French citizens then living in the United States. But the country did not go to war, and the law was never used.
The Alien Friends Act authorized the president to deport any non-citizen suspected of plotting against the government during either wartime or peacetime. This law could have resulted in the mass expulsion of new immigrants. The act was limited to two years, but no alien was ever deported under it.
The fourth law was the Sedition Act. Its provisions seemed directly aimed at those who spoke out against the Federalists.
The Sedition Act
In general, sedition means inciting others to resist or rebel against lawful authority. In England, "seditious libel" prohibited virtually any criticism of the king or his officials. English common law held that any spoken or written words that found fault with the king's government undermined the respect of the people for his authority.
The U.S. Sedition Act first outlawed conspiracies "to oppose any measure or measures of the government." Going further, the act made it illegal for anyone to express "any false, scandalous and malicious writing" against Congress or the president. Significantly, the act did not specifically protect the vice-president who, of course, was Jefferson. Additional language punished any spoken or published words that had "bad intent" to "defame" the government or to cause the "hatred" of the people toward it.
These definitions of sedition were more specific than those found in English common law. Even so, they were still broad enough to punish anyone who criticized the federal government, its laws, or its elected leaders.
Unlike English common law, the Sedition Act allowed "the truth of the matter" to be a defense. The act also left it to the jury to decide if a defendant had "bad intent." Penalties for different provisions of the law ranged from six months to five years in prison and a fine of up to $5,000 (more than $100,000 in today's dollars).
The Republican minority in Congress argued that sedition laws violated the First Amendment to the U.S. Constitution, which protects freedom of speech and the press. The Federalists countered by defining these freedoms in the narrow English manner. According to English law, freedom of speech and the press only applied before the expression of ideas. The government could not censor or stop someone from expressing ideas. But after the words had been spoken or printed, the government could punish people if they had maliciously defamed the king or his government.
The Federalist majority in Congress passed the Sedition Act and President Adams signed it into law on July 14, 1798. It was set to expire on March 3, 1801, the last day of the first and--as it turned out--only presidential term of John Adams.
The Attack on the Republicans
Secretary of State Timothy Pickering was in charge of enforcing the Alien and Sedition Acts. He immediately began to read as many Republican newspapers as he could, looking for evidence of sedition against President Adams and Congress.
In October 1798, a Vermont Republican congressman, Matthew Lyon, became the first person to be put on trial under the Sedition Act. Like most Republicans, Lyon opposed going to war against France and objected to the land tax to pay for war preparations.
Lyon wrote a letter published in a Republican newspaper, criticizing President Adams for "a continued grasp for power." At several public meetings, he also read aloud a letter written by poet Joel Barlow, who jokingly wondered why Congress had not ordered Adams to a madhouse.
A federal grand jury indicted Lyon for intentionally stirring up hatred against President Adams. Unable to find a defense attorney for his trial, Lyon defended himself. The U.S. marshal, a Federalist appointee, assembled a jury from Vermont towns that were Federalist strongholds.
Lyon attempted to prove the truth of the words he wrote and spoke, as permitted by the Sedition Act. This meant that the burden of proof was on him. Lyon had to prove the words in question were true rather than the prosecutor having to prove them false. Lyon also argued that he was only expressing his political opinions, which should not be subject to the truth test.
The jury found Lyon guilty of expressing seditious words with "bad intent." The judge, also a Federalist, sentenced him to four months in jail, a $1,000 fine, and court costs.
Lyon ran for re-election to Congress from his jail cell and won. Vermont supporters petitioned President Adams to release and pardon him, but Adams refused.
When Lyon was released from jail, he was welcomed as a hero in his Vermont hometown. He was cheered along the route he took when he journeyed to Congress. Once Lyon returned to Congress, the Federalists tried to expel him as a convicted criminal, but this effort failed.
Thirteen more indictments were brought under the Sedition Act, mostly against editors and publishers of Republican newspapers. Some Republican newspapers were forced to close down, and many others were too intimidated to criticize the government.
One Republican was convicted of sedition for publishing a pro-Jefferson campaign pamphlet that accused President Adams of appointing corrupt judges and ambassadors. Two men were found guilty of raising a "liberty pole" and putting a sign on it that said, "downfall to the Tyrants of America." Another was arrested, but never tried, for circulating a petition to repeal the Alien and Sedition Acts themselves. A drunk was fined $150 for insulting President Adams.
In the most bizarre case, the Federalists in the U.S. Senate formed a special committee to investigate a Republican editor, William Duane. Republicans had leaked to him a Federalist proposal to change how presidential electoral votes were counted. Duane had printed the law and written editorials denouncing it. When summoned to the Senate to face charges of writing "false, scandalous, defamatory, and malicious assertions," he went into hiding and secretly continued writing for his newspaper.
A New Definition of Free Speech and Press
The Alien and Sedition Acts provoked a debate between Republican and Federalist state legislatures over freedom of speech and the press. In a resolution he wrote for the Virginia legislature, James Madison argued that the Sedition Act attacked the "right of freely examining public characters and measures, and of free communication among the people." In heavily Federalist Massachusetts, state legislators responded that a sedition law was "wise and necessary" to defend against secret attacks by foreign or domestic enemies.
The Federalists in Congress issued a report accepting the old English common law definition of free speech and press. It argued that the First Amendment only stopped the government from censoring beforehand any speeches or writings. The government, argued the Federalists, should be able to protect itself from false and malicious words.
Congressman John Nichols, a Republican from Virginia, challenged this Federalist view. He asserted that Americans must have a free flow of information to elect leaders and to judge them once they were in office. Nichols asked why government, which should be critically examined for its policies and decisions, should have the power to punish speakers and the press for informing the voters.
In the end, the people settled this debate in 1800 by electing Thomas Jefferson president and a Republican majority to Congress. In his inaugural address, Jefferson confirmed the new definition of free speech and press as the right of Americans "to think freely and to speak and write what they think."
For Discussion and Writing
- What was the Sedition Act? Why was it passed? Do you think it was constitutional? Explain.
- How did the Federalists and the Democratic-Republicans differ regarding criticism of the government and freedom of speech and the press?
- Write a letter to the editor of a 1798 newspaper, expressing your views about the Alien and Sedition Acts.
For Further Reading
Austin, Aleine. Matthew Lyon, "New Man" of the Democratic Revolution, 1749-1822. University Park, Pennsylvania: Pennsylvania State University Press, 1981.
McCullough, David. John Adams. New York: Simon & Schuster, 2001.
Freedom of Speech and the Press
The U.S. Supreme Court never decided whether the Alien and Sedition Acts were constitutional. In fact, it was not until the 20th century that the Supreme Court grappled with significant free speech and free press issues. In this activity, students look up some of these important Supreme Court decisions and report back to the class.
1. Divide the class into small groups. Assign each group one of the cases below.
2. Each group should:
a. Find, read, and discuss the case. The Internet has each of the cases (trywww.FindLaw.com) or research them at your public library.
b. Write a summary of the case. It should include the facts of the case, the main issue, the decision of the court, the court's reasoning, and what the dissenting justices said.
c. Prepare to report on the case to the class. Include in your presentation how each of you think the case should have been decided and why.
3. Have the groups report and discuss each decision.
Schenck v. U.S. (1919). Congress passed laws during World War I against distributing material that would interfere with the war effort. Charles Schenck, general secretary of the American Socialist Party, was convicted under this law for distributing leaflets urging draft-age men not "submit to intimidation" but to "petition for repeal" of the draft law.
New York Times v. Sullivan (1964). During the civil rights era, the New York Times printed an ad asking for donations to help peaceful protesters at Alabama State College. L.B. Sullivan, police commissioner of Montgomery, sued the Times for libel saying that the ad had false material that damaged his reputation.
New York Times Co. v. U.S. (1971). During the Vietnam War, the New York Times received a top-secret Defense Department 7,000-page history of U.S. involvement in Vietnam. It started publishing excerpts, and the government sued to have the newspaper stop publishing the excerpts.
Yates v. U.S. (1957). In 1939 with World War II looming, Congress passed the Smith Act, which made it a crime to advocate overthrowing the government by violence. In the 1950s, 14 leaders of the American Communist Party were convicted under the Smith Act.