Flashpoints in global justice, democratic process, and the history of ideas
In January of this year, former CIA agent John Kiriakou was arrested and charged with illegally revealing classified information to journalists about the interrogation of detainees at Guantanamo Bay. Much of the government’s case against Kiriakou leans on alleged violations of the Espionage Act, a law passed during World War I to stem antiwar dissent and control the use of official information. At that time, the law’s targets were mostly activists, union organizers, and radical writers and speakers. Many of those prosecuted made up the Industrial Workers of the World (IWW), a radical labor union that fought for free expression as much as it did workers’ rights. But since then, the law has shifted focus toward government leakers and, potentially, to journalists. Kiriakou’s case is only the latest under Obama to threaten whistleblowers’ ability to reveal wrongdoing, and the press’ ability to report on it.
In the final years of the Bush administration, as cases of CIA waterboarding began to surface, many observers still saw them as isolated incidents. But Kiriakou begged to differ. In a now-infamous interview with ABC in late 2007, he revealed that torture—waterboarding, in particular—was CIA policy in the years after September 11. What’s more, he said, it was effective. Waterboarding provided critical intelligence from detainees that probably saved American lives. But, Kiriakou insisted, the effectiveness of waterboarding doesn’t excuse it—an argument he expanded on in a book three years later.
Kiriakou’s testimony had a complex effect on the national debate over torture, says Brian Stelter in the New York Times. Because he described how valuable and efficient waterboarding can be—one detainee’s resistance was broken in less than 35 seconds, he said—conservative pundits like Rush Limbaugh and National Review’s Jonah Goldberg saw Kiriakou as lending legitimacy to the right-wing side of the torture debate. At the same time, Stelter points out, it also revealed that CIA leaders had authorized harsh and controversial interrogation techniques, sparking a national outcry. Brian Ross, who conducted the original ABC interview, later said it was critical to “shine some light on what was happening.” Kiriakou agreed. “We should be debating this,” he told Ross in 2007. “It shouldn't be secret. It should be out there as part of the national debate.”
The debate that did happen led to an uproar against torture and to President Obama’s formal ban on waterboarding in early 2009. While Kiriakou’s 2007 revelation was one of many in a series of scandals and conversations since September 11 regarding the use of torture, his disclosure was significant. Not only did he point to CIA leaders for directing harsh interrogation, he was one of the first in the CIA to come out against waterboarding, and to label it as torture.
But now, despite Obama’s actions against waterboarding, Kiriakou has become a Department of Justice target for leaking classified information to journalists related to torture in the months after the ABC interview. What’s more, as Government Accountability Project attorney Jesselyn Radack points out in Salon, because Obama has declined to investigate war crimes under Bush 43, Kiriakou remains the only person to be charged in connection with torture at Guantanamo Bay—for any reason. In total, Obama has charged six people under Espionage for leaking government secrets, including Kiriakou, though Julian Assange could make seven if he is indicted as well.
In what some have dubbed a war on whistleblowers, Obama has invoked Espionage more than any other president against journalists and government leakers. But at the same time, as Glenn Greenwald argues, the administration leaks secret information on a regular basis, from the Olympic Games assassination program in Iran, to details of Osama bin Laden’s assassination, to the president’s now-infamous “kill list.” The difference between these leaks and those perpetrated by people like John Kiriakou, Greenwald says, is that this information makes the White House look good (it’s also emphatically beyond judicial oversight). The fact is that investigative journalists at papers like the New York Times and Washington Post depend on the right to publish classified information—very often with the (technically illegal) cooperation of government officials. The implication, says Peter Van Buren at Tom Dispatch, seems to be that publishing state secrets is only OK if you make the powers that be look like the good guys.
No doubt that’s concerning, but the greater danger is that the government’s treatment of whistleblowers will have a chilling effect on the press, something that more than one prominent journalist has warned about. If whistleblowers are afraid to come forward with crucial information, we may know less and less about what our government is doing and what is happening in the world around us. It’s almost impossible to imagine the debates surrounding the Vietnam War without the Pentagon Papers, just as revelations about torture have dramatically changed our understanding of the War on Terror.
And it wouldn’t be a stretch to suggest that those revelations—and not just Kiriakou’s—had a direct impact on the 2008 election, and on Obama’s subsequent ban on waterboarding and extraordinary rendition (though by no means is Obama’s record on torture entirely clean). Without leaks like the Taguba Report or the Iraq War Logs, both the reality of the war and our knowledge of it may well have been very different. Today, it’s this knowledge that the Espionage Act threatens.
Amidst Obama’s controversial treatment of whistleblowers, the current standard narrative has been that the Espionage Act was originally passed to combat actual espionage—that is, spying on behalf of unfriendly foreign governments. It’s only since then, the argument goes, that the Act has been distorted and manipulated from its original, more justifiable purpose. But that narrative actually blurs a lot of history. Congress’ real focus in 1917 was fighting dissent, which as it turned out, was much more of a threat to Washington than German (or, Austro-Hungarian) spies. Washington’s wartime use of Espionage and the Red Scare that followed destroyed much of the power of organized labor, not to mention the tiny antiwar movement, and set a precedent for prosecuting political speech that remained in force until the 1960s.
When Congress passed the Espionage Act in June 1917, the U.S. had been at war for less than ten weeks, but President Wilson was adamant about unifying the country behind the war effort. Wilson had asked Congress for action against “disloyalty” more than a year and a half beforehand in his 1915 State of the Union speech. Singling out foreign-born radicals in particular, he railed against those who spread “the poison of disloyalty,” ominously adding, “I need not suggest the terms in which they may be dealt with.” Though the nation was by no means headed directly for war—and actually, Wilson stressed his dedication to neutrality, in this speech and in the following year’s election—Wilson’s warnings would prove prescient. “No president had ever spoken that way before; none has since,” wrote historian and politician Daniel Patrick Moynihan in Secrecy, his 2003 history of political intrigue. “[T]he intensity of fear, and yes, loathing in those years was never equaled later.” Shortly after the war began, Wilson doubled down on his commitment to target dissent, and took to the New York Times to demand strict press censorship.
Wilson didn’t get everything he was after, but he got a lot. The Espionage Act as passed granted the executive branch sweeping powers to prosecute and interfere with political speech in a variety of forms. Section 2, which repeated and expanded on the Defense Secrets Act’s regulation of official information, forms the backdrop of many controversies today, but in 1917, Section 3 got the most attention. That passage criminalized virtually any speech that could be said to encourage “insubordination, disloyalty, mutiny, [or] refusal of duty” in the military. A year later, Congress expanded its definition of unacceptable speech with the Sedition Act, which criminalized “disloyal, profane, scurrilous, or abusive language” against the government in a time of war. But really, all Justice needed was Espionage, which remained on the books long after Sedition had expired.
In his history of the IWW, There is Power in a Union, historian Philip Dray explores Espionage’s effect on the American labor movement. Within months of the Act’s passage, Dray writes, federal agents began rounding up hundreds of radical and antiwar activists for violating the 1917 law, while Postmaster General Albert S. Burleson wasted no time in banning more than a dozen leftwing newspapers like The Masses, The Milwaukee Leader, and the Jewish Daily Forward, from the U.S. mail. Even mainstream papers were not allowed to step out of line, says Christopher Finan in From the Palmer Raids to the Patriot Act, a history of free speech. When The Nation published a story that criticized AFL leader Samuel Gompers, a Wilson ally, the post office refused to mail it. Facing threats from the postmaster’s office, The New Republic declined to publish an ad supporting the IWW. And while German spies remained the ostensible targets of the federal crackdown, they represented a very small minority of Espionage Act cases. The real targets were antiwar activists, leftists, and union leaders. Within months, more than 2,000 were arrested for things like speechmaking and publishing dissenting newspapers. And some, like Socialist Party leader Eugene Debs, spent years in prison.
But even without a war in Europe, says Dray, free speech was a very contentious issue in the years leading up to war, and many labor activists were quick to make the connection between a growing movement for workers’ rights and battles over the First Amendment. In many American cities, speechmaking about taboo or critical topics was already banned. Three years before the IWW was founded in 1905, many of its future leaders formed the Free Speech League to combat municipal codes against soap-boxing and other public political speech, which were then quite common.
Expression in a broader sense was also under attack in the first decades of the new century—including fundamental labor tools like boycotts. In Loewe v. Lawlor (1908), the Supreme Court ruled that a striking union’s boycott against a fur hat producer violated the Sherman Antitrust Act. In another case three years later, the Court was unswayed by AFL lawyers’ arguments that encouraging a peaceful boycott should be protected free speech. The same was true of virtually anything that had to anarchism. A pair of Immigration Acts, passed in 1903 and 1918, empowered Washington to exclude or deport anarchist immigrants, or anyone who believed in assassinating public officials, from the United States. Emma Goldman, a prominent anarchist speaker and activist who emigrated from Russia in 1885, was deported in 1919 after years of police harassment. Had she tried to emigrate later in her life, it’s likely she would’ve been turned away.
Freedom of assembly was likewise hard to come by. The early flashpoints of American labor—Haymarket, Tompkins Square, Pullman—were arguably as much about defending the right to peaceably assemble as about labor conditions, argues Dray. In 1874, Justus Schwab was arrested for waving a red flag during a rally in New York City’s Tompkins Square. Adolph Fischer, one of the defendants tried in the aftermath of the Haymarket riot in 1886, said, “I was tried here in this room for murder, and I was convicted of Anarchy. This verdict is a death-blow to free speech, free press and free thought in this country.” Despite a lack of physical evidence, Fischer, along with three other defendants, were hanged the following year, and quickly became martyrs in the nascent American labor movement.
And so after the IWW organized itself formally in 1905, some of its fiercest battles and most creative campaigns were in free speech fights in cities across the country, from Seattle to Spokane to San Diego. One of the first was in Missoula in 1909, where IWW activists faced down a new municipal ordinance banning street-speaking. There, activists devised a strategy to beat back speech restrictions in dozens of cities over the next eight years. The idea was to defy the law with as many people as possible, overcrowd the local jail, and force the town to recant. Wobblies from all over the West began showing up to get arrested. “It was said ranchers from the surrounding area came on buckboards and mules to witness the spectacle of men who wanted to go to jail,” writes Dray. Nevertheless, the tactic worked. In Missoula, after the local jail was full, municipal leaders had to take over the fire station. And when residents balked at using tax dollars to feed the new inmates, the city declared defeat. All IWW inmates were released and the anti-speech ordinance was repealed. The resounding victory led the IWW to successfully apply the same strategy to dozens of other cities across the American West. Free speech was never more of a labor issue.
But while the IWW had an impressive record of defending free speech against municipal ordinances and corrupt local officials, it was ill prepared for the repression, censorship, and violence that accompanied America’s entry into World War I. But prepared or not, American political culture changed dramatically in 1917, and few felt it as viscerally as the Wobblies, along with pacifists, antiwar activists, and other “unpatriotic” standouts—not to mention Germans and German-Americans.
In some ways, the fierce wartime nationalism might sound familiar to 21st century Americans. In Security Versus Liberty, historian Alan Brinkley describes some of the more outlandish flashpoints, as Americans swept under the rug any reference to the country’s considerable German heritage. Public schools refused to teach German. Many German-language newspapers, schools, and churches either switched to English or shuttered. German-sounding place names were refashioned, as were many family names. At least one German-born man was lynched in Illinois, while a mob in Wisconsin threatened to lynch another German-American for not contributing enough to a drive for war bonds. Orchestras banned Mozart and Beethoven. Sauerkraut, apparently too popular to be banned outright, became “liberty cabbage.” It might sound funny now, but it’s not hard to see modern equivalents—think freedom fries and Park51. Suffice it to say, in a political atmosphere like that, the IWW’s radical message was less than welcome. And after Espionage passed, Washington’s movement against the Wobblies was swift.
On April 1, 1918, 101 editors, writers, speakers, and union organizers belonging to the IWW entered a courthouse in Chicago to begin a trial that would last the better part of five months—the longest in American history up to that point. All 101 defendants were charged with violating the Espionage Act, in addition to dozens of other, lesser charges. Back in September, federal agents had raided 48 IWW halls across the country, arrested some 165 members, and confiscated nearly five tons of documents. What prosecutors were looking for was proof of a conspiracy to undermine the ongoing war effort. But to the Wobblies, conspiracy didn’t make much sense. As defendant Robert Brazier pointed out (quoted by Dray), “most of us had never met prior to our arrests.” Nevertheless, they were all convicted, with barely a discussion. The verdict came after five months of hearings and less than an hour of jury deliberation.
Though the immediate postwar years saw a wave of important and highly visible strikes, the IWW never recovered from the convictions. Most of the defendants received five to ten years in prison, but the union’s more famous and active leaders, like Bill Haywood, received 20. The following years would see a violent, large-scale confrontation between organized labor and government agencies like the newly formed Bureau of Investigation, along with vigilantes and local police—but the IWW was mostly absent. And though labor scored some sizeable victories in those years—the 1919 Seattle General Strike stands out for groups like the AFL—it didn’t take long for the Palmer Raids and the larger Red Scare to destroy what power organized labor had left. Of course, Espionage continued to play a vital role, especially in the courts, where the conviction of radicals for political speech was continuously upheld—most dramatically in the famous Schenck v. U.S., which upheld the conviction of a socialist antiwar activist and established the “clear and present danger” test.
It’s in this context of free speech fights and labor struggles that we should understand the Espionage Act. Washington’s obsession with quashing dissent, its lopsided enforcement against IWW chapters, its use of Espionage during the postwar Red Scare long after the German threat had vanished—none of this makes sense without seeing Espionage as intrinsically connected to labor. In criminalizing dissenting speech, in shuttering radical presses, and in imprisoning and deporting some of labor’s most important leaders, the Espionage Act helped create an obedient political culture, in which information and debate could be regulated and controlled. In this way, its function in 1917 was not all that different than it is now, despite a change in how it is enforced. During the War on Terror, as during World War I, the Espionage Act’s concern is public awareness and public debate. The critical difference is where the federal government can interfere in the discussion.
A New Target
That difference in enforcement reflects dramatic changes in American political culture, with some of the clearest movements in the courts. The 1960s was a period of unprecedented openness to democratic ideas, especially when it came to freedom of expression. And as Christopher Finan argues, some of the earliest and most important battles for expanded free speech protections came from the civil rights movement. In Supreme Court cases like NAACP v. Button and New York Times v. Sullivan, civil rights activists won unprecedented First Amendment protections that would have a remarkable impact far beyond the fight for racial equality.
But it wasn’t until 1969, says Finan, that the Court established the sweeping free speech protections we know today. That year, in Brandenburg v. Ohio, the Court struck down “clear and present danger” and established a new standard: “imminent lawless action,” meaning speech is only criminal if it is likely, and intended to, result in breaking the law. The ruling was in many ways a watershed, and reflected extraordinary changes in Americans’ attitude toward dissent. Much of the Espionage Act’s Section 3 was toast—no longer could the federal government punish political speech simply because it encouraged “insubordination” or “disloyalty.” In rejecting both Schenck and the most draconian passages of Espionage, the 1969 decision established some of the strongest legal protections of free speech in the world (though the War on Terror has undoubtedly complicated matters). It also changed the meaning of the Espionage Act for decades to come.
When it came to official secrets, however, that change was very much two-sided. Before the 1970s, government leaks were not unheard of—federal laws protecting whistleblowers date back to 1863. But the Pentagon Papers leak in 1971 was and remains the most significant and damning disclosure of government wrongdoing in U.S. history. The leak brought a powerful change in how America saw its involvement in Vietnam, while the subsequent Supreme Court case had a similarly significant impact on the legality of secret information. In a landmark decision the same year the Papers were exposed (New York Times v. U.S.), the Court found that prior restraint against newspapers attempting to publish the leaks was unconstitutional. Striking down prior restraint was another clear victory for First Amendment rights, but the ruling came with a caveat. The Justice Department, the Court said, could still pursue a case against Daniel Ellsberg and Anthony Russo for leaking the classified documents under the Espionage Act, as well as The New York Times and Washington Post for publishing them. The ruling expanded the potential use of the Act’s Section 2 dramatically—the passages that deal with the illegal use of official documents—which could now apply to both whistleblowers and the journalists they contact. The change was unprecedented, and this standard remains on the books as well.
While Justice declined to pursue the newspapers, as the New Yorker’s Jane Mayer points out, its case against Ellsberg and Russo in 1973 marked the first time federal prosecutors attempted to use the Espionage Act to punish government leakers. The case ultimately fell through, mostly because prosecutors gathered evidence illegally, but it remains an important turning point. In the span of about four years, then, the Espionage Act and its relationship with free speech changed significantly. And since 1973, the exact limits of the government’s power against dissent have been a little fuzzy. A handful of court cases have established rough standards, but because journalists so regularly handle classified documents and information—and so often with cooperation from Washington officials—enforcement often seems arbitrary.
This is a big part of the problem, says Mayer. When government employee Thomas Drake was indicted in 2010 for leaking information about a secret NSA program, his violations of Espionage included “willful retention” of classified information. The implication, argues Mayer, is that if a journalist “willfully retains” the same information—which is kind of a given if you plan to publish something—they could be charged too. The same issue forms a major part of Washington’s possible case against Julian Assange. Another problem is that official secrecy doesn’t always make sense, writes Patrice McDermott, director of OpenGovernment.org and author of Who Needs to Know: the State of Public Access to Federal Government Information. Security classifications often determine who gets indicted and who doesn’t, but the classification system is mostly a hodge-podge of executive orders that add up to very little consistency. Predicting who gets in trouble and why can therefore be very difficult. Could investigative journalists be targeted under Espionage? Is prosecution really based on byzantine classification systems, or does it have more to do with who’s making the government look good, as Greenwald and Van Buren argue? The scary thing is, ultimately, we don’t know.
Of course, this guesswork underscores a deeper set of questions about why Washington is pursuing these cases in the first place. Why has Obama sought to punish whistleblowers more than any president in history? Why have sources who blew the whistle on Bush-era crimes been charged, while those perpetrating the crimes have not? What impact does all this have on our knowledge of what our government is doing?
The uncomfortable fact is we don’t know the motivations behind the administration’s war on whistleblowers, any more than Americans knew why a wartime “Espionage Act” seemed to have much more to do with antiwar journalists and speakers than German spies. In both cases, Washington’s motives remained conspicuously hidden. The irony this poses—not knowing why we don’t know something—is both concerning and antithetical to a functioning democratic culture. At least for now, it may be unrealistic to expect no state secrets, but upholding a basic level of transparency in government—like the approach the Obama White House promised upon taking office—would be a good start.
By now the fact that Obama has turned out to be one of the most secretive presidents in decades is well known (the confused debate about leaks notwithstanding). This also makes his use of Espionage less surprising. In classifying unprecedented numbers of documents, using and abusing the state secrets privilege, and attacking those who bring uncomfortable truths to light—such as John Kiriakou—Obama has, like President Wilson, undermined the democratic ideals he supposedly sought to protect. Although the two presidents acted in somewhat different ways, their use of the Espionage Act has had a similarly repressive effect on public knowledge and public debate.
To be sure, in the 21st century, the landscape of First Amendment rights is very different from what it was a century ago. Today, IWW free speech fights have much more in common with controversies over so-called free speech zones at public protests—like the ones recently enforced at the Republican and Democratic conventions, or the wildly abusive police response to Occupy Wall Street—than with the current targets of the Espionage Act. Still, the law’s function in deciding the difference between acceptable and unacceptable expression and information in the public arena remains unchanged. And the same can be said for its arbitrary and inconsistent enforcement. Just as Wilson’s raids helped create a culture of fear and submission, Obama’s actions against whistleblowers and journalists may well have intimidated others to keep quiet for the very credible fear of retaliation. But like so many other facets of this issue, it’s impossible to know for sure.
Image above is from an IWW demonstration in New York City, 1914.