Espionage! (Not)

An old proverb warns against judging a book by its cover. Ralph Engelman and Carey Shenkman play a significant variation on that theme with A Century of Repression: The Espionage Act and Freedom of the Press, published by University of Illinois Press. (Engelman is professor emeritus of journalism and communication studies at Long Island University in Brooklyn, while Shenkman is a constitutional lawyer who serves on the panel of experts for Columbia University’s Global Freedom of Expression Program.)

Just to be clear, the cover of the book itself is not at all misleading. Its pencil sketches of nine faces, arranged in no particular order, are a test of the reader’s familiarity with pertinent historical figures, from Eugene Debs to Chelsea Manning. Each was prosecuted under the Espionage Act of 1917, which remains in force now in amended form. For the paperback edition, a little portrait of Donald J. Trump might be in order.

The authors maintain that the act has had, in practice, little to do with preventing or punishing spying. It serves rather as a means of protecting the national security state from various irritations arising from the First Amendment. “Its fundamental flaw,” they write, “consists of associating, in a single law, the act of espionage on behalf of a foreign power with all other disclosures of information deemed secret by the federal government.” The alarming word “espionage” on its cover gives a distorted sense of the law itself.

Pushed through Congress over fierce opposition shortly after the U.S. entered World War I, the Espionage Act targeted anyone obtaining national defense information with, in its words, “intent or reason to believe that the information … is to be used to the injury of the U.S., or to the advantage of any foreign nation.” That all sounds spy-related enough. But the act also prohibited sending by mail any material “advocating or urging treason, insurrection, or forcible resistance to any law of the United States.” The broad array of activities potentially subject to prosecution under the law was backed up by punishments ranging from a revocation of second-class mailing privileges to the death sentence.

A civil libertarian at the time warned that the right to discuss “the conduct of the war, the causes that led up to it, and the methods by which it can be terminated” would be endangered by the act. And indeed it was. Widespread opposition to American involvement in the conflict in Europe had been an important factor in public life for almost three years. It was throttled while a sophisticated program of war propaganda was put in place, generating not just posters and newspaper copy but cartoons and Hollywood films.

The authors emphasize how effectively the Espionage Act served to suppress radical critics of capitalism, including members of the Socialist Party (especially leading figures such as Debs and Kate O’Hare) and the militant labor organizers in the Industrial Workers of the World (not, as the text repeatedly has it, the International Workers of the World). And in the wake of that wartime repression, two counterposed influences on public life emerge, neatly framed by the authors through biographical accounts of J. Edgar Hoover and Roger Baldwin, at the helms of the Federal Bureau of Investigation and the American Civil Liberties Union, respectively. In effect, Hoover carried forward the Espionage Act’s propensity to “conflate actions necessary in a democratic society—dissent, whistleblowing, and investigative reporting—with disloyalty,” as Engelman and Shenkman put it. Baldwin’s role was to resist that tendency. They were not evenly matched. Baldwin early on formed an impression of Hoover as both charming and scrupulous, putting him at a disadvantage; in time, the FBI had moles inside the ACLU leadership.

A Century of Repression divides the numerous episodes of the Espionage Act’s use and curtailment into three broad periods, each defined by new factors emerging from a war. It’s worth noting that World War II did not have much of an impact on the uses of the act as sketched above. Franklin Delano Roosevelt toyed with using it against African American newspapers that reported on racist incidents in the military, and a ragtag group of editors and writers was prosecuted as forming a conspiracy to support the Axis. The case fell apart on trial.

Rather, the second phase of the Espionage Act took shape during the Cold War. Aspects of the 1917 law were incorporated into the Internal Security Act of 1950, which effectively criminalized membership in the Communist Party. The Espionage Act itself found new uses. By seizing “upon sections of the act that broadly proscribed communication of NDI [national defense information] to persons unauthorized to receive it,” the authors write, the act became a “tool to control access to government information by journalists and the public” and for “punishing whistleblowers.”

This second period culminated in the Pentagon Papers crisis but did not end with it. The Espionage Act was repeatedly challenged on the grounds that it served to shield powerful state institutions from public scrutiny. Reporters looking into scandal and malfeasance in the defense establishment ran the risk of having their sources, or themselves, charged with espionage.

The authors identify the third period of the act’s history, subsuming the past 20 years, as a response to the Global War on Terror proclaimed in the wake of the Sept. 11 attacks. And in doing so, I think, the linkage made between geopolitical conflict and legal usage seems more a narrative convenience than a necessary context. Arguably the third phase really began in 1984 with the Computer Fraud and Abuse Act, which the authors themselves say “extended sections of the Espionage Act into the new frontiers of cyberspace.” Applicable to fraud and hacking, it also made criminal the use of a computer “without authorization or exceeding authorized access,” in the CFAA’s pioneering but vague language, which also incorporated passages from the 1917 law.

Many of the developments that make the final chapters of the book such an intense flashback to recent years—the cases of Julian Assange, Edward Snowden and Chelsea Manning, in particular—all unfolded amid, and in response to, U.S. actions in Iraq and Afghanistan. But more to the point, this third phase is defined by the pressure of new means of sharing and disseminating information on military forces and intelligence agencies. The ambiguities and overreach of a law passed more than a century ago stand out less as anachronistic than as a menace to whatever may remain of a democratic polity.