The Changing Face of Espionage

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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 morethanone
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.

Illegal Information

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,
TheMilwaukee 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 confuseddebate
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. 

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