Lawyer friends of mine like to refer to the case of Korematsu v. U.S., the Supreme Court decision that allowed for the dislocation and detention of Japanese-American citizens, as a land mine in the law in that, technically, it never has been repealed, although the Court did repudiate it while throwing out the original Muslim travel ban in Trump v. Hawaii. For me, and for the people in my profession, the land mine in the law always has been 18 USC 793, the Espionage Act of 1917, the immortal gift of that half-nutty professor, Woodrow Wilson, and his truly awful attorney general, A. Mitchell Palmer.
Of course, it all came back this week when the president* had himself a nutty on consecutive days, threatened James Comey with execution for treason, and allowed his personal Palmer, the career Republican jackanapes William Barr, to indict Julian Assange on 17 counts of violating, you guessed it, the Espionage Act. It is true that Assange is a messianic nuisance who jacked around with the 2016 presidential election, as well as being the guy who brought a road company performance of The Man Who Came To Dinner to the Ecuadorian embassy that ran for several years.
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But this isn’t really about Assange who, in any case, may never see the inside of a U.S. courtroom. This is about Jane Mayer, and Charlie Savage, and Barton Gellman, and David Fahrenthold and every other dogged reporter who has made this president*’s life miserable by continuously pointing out what an incompetent, authoritarian crook and bunco artist this president* is. Weaponizing the Espionage Act on behalf of a Justice Department already weaponized to attack the president*’s political enemies is a signal and a warning. It is a monstrous abuse of power, but only because that power was there to be abused all these years and nobody was paying attention.
El Caudillo del Mar-a-Lago is enabled not only by a supine Republican Party, and not only by his good friends among the Volga Bagmen, and not only by a Democratic Party that seems befuddled as to what to do about him. He also has been enabled in his great project of dismantling representative government by the fact that a succession of Congresses going back to the middle of the last century gradually ceded power to the Executive Branch and left it there, hoping that no future president would be crackpot enough to perceive the full potential of the gifts that Congress was dropping at his door. The current president* may be as dim as the light from Saturn, but he has a predator’s instinct for finding weapons to use against the people he chooses to make his enemies, and he has no compunction about using them to their fullest.
And so, here we are. The Espionage Act should have been repealed decades ago. In 1971, John Mitchell, the only competition Barr and Palmer have for worst attorney-general in history, tried to use it to enjoin newspapers from publishing the Pentagon Papers. In deciding against Mitchell, the Supreme Court ducked the opportunity to declare the Espionage Act unconstitutional. So it continued to sit there in the statute book like a viper under a rock. It was used against authentic spies like Aldrich Ames and Robert Hanssen, and as a cudgel over the heads of innocent victims like Wen Ho Lee.
The Obama Administration, to its everlasting embarrassment, shined it up and used it against whistleblowers. Conspicuously, however, the Obama administration didn’t target the reporters to whom the whistleblowers blew the whistle, deciding quite sensibly that they didn’t want to stand the constitutional shitstorm that would blow in if they tried. (And, perhaps, also because they truly had First Amendment qualms about doing so.) Naturally, then, when this administration* came upon the act, they tightened the screws, polished the barrel, and sent it back into the kind of vicious political warfare that had birthed it in the first place.
The Espionage Act-and the Sedition Act that was its primary enforcement mechanism and was signed into law by Wilson, that idiot, the following year-was born of fear and anger. It was directed almost entirely against people who were opposed to the country’s entry and participation in the slaughter of World War I-pacifists, Quakers, genuine radicals, actual (or alleged) Communists. Eugene Debs went to jail under the Act partly for giving a speech in which he…wait for it… criticized the Espionage Act. “I may not be able to say all I think; but I am not going to say anything that I do not think,” Debs told a crowd in Canton, Ohio, “I would rather a thousand times be a free soul in jail than to be a sycophant and coward in the streets.” In other words, Debs was convicted for purely political speech. A unanimous Supreme Court upheld Debs’s conviction and, per force, the laws under which he was convicted.
But the most ringing opposition to the Espionage Act at the time of its passage came from Robert LaFollette, the great Progressive senator from Wisconsin. At the time, LaFollette had been one of the loudest-and the most effective-voices in Congress against U.S. entry into the war. It was he who led the filibuster against the Armed Ships Bill and it was he most directly whom Wilson was talking about when he raged against “a small group of willful men.” In October of 1918, after the Espionage Act was passed, and while mindless public opinion had turned so much in favor of the war that petitions were flooding in to have him expelled from the Senate, LaFollette rose to defend himself. He spoke for three hours. His speech is worth quoting at length because it is a formidable antidote to the paralysis that sets in on the American spirit whenever enough people get scared and angry enough that cheapjack leaders see an opportunity.
The mandate seems to have gone forth to the sovereign people of this country that they must be silent while those things are being done by their government which most vitally concern their well-being, their happiness, and their lives. Today and for weeks past honest and law-abiding citizens of this country are being terrorized and outraged in their rights by those sworn to uphold the laws and protect the rights of the people.
I have in my possession numerous affidavits establishing the fact that people are being unlawfully arrested, thrown into jail, held incommunicado for days, only to be eventually discharged without even having been taken into court, because they have committed no crime. Private residences are being invaded, loyal citizens of undoubted integrity and probity arrested, cross-examined, and the most sacred constitutional rights guaranteed to every American citizen are being violated. It appears to be the purpose of those conducting this campaign to throw the country into a state of terror, to coerce public opinion, to stifle criticism, and suppress discussion of the great issues involved in this war.
More than all, the citizen and his representative in Congress in time of war must maintain his right of free speech. More than in times of peace it is necessary that the channels for free public discussion of governmental policies shall be open and unclogged.
It is the citizen's duty to obey the law until it is repealed or declared unconstitutional. But he has the inalienable right to fight what he deems an obnoxious law or a wrong policy in the courts and at the ballot box. It is the suppressed emotion of the masses that breeds revolution.
This, remember, was a speech given during what was then the greatest war in the history of mankind, and a war that was reinforced at home by pernicious and anti-democratic politicians passing pernicious and anti-democratic war. Today, by and large, and despite the best efforts of some of the president*’s crew, we are at peace. But we are treated as though we are engaged wholly in war - the endless war in west Asia, certainly, but we are also being driven into a war against our own democratic heritage and our own rights, as well as a war against phantom enemies and spectral adversaries that exist only in the mind of a president* who clearly is coming unglued. The Espionage Act was born in a political context similar to this one, and it deserves to die an unmourned death for the same reason we gently take a firearm away from a toddler. The president* can’t be trusted with a weapon like that, and we can’t be trusted with a country that gives it to him.
When the war ended, Palmer, who really deserves to be dug up and put on trial in a modern Cadaver Synod, easily turned the Espionage Act against anybody he saw as a threat to his conception of the public order.
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