Jun 21, 2023

Honor Daniel Ellsberg by Abrogating the Espionage Act

Photograph Source: Ben Schumin – CC BY-SA 2.0

Daniel Ellsberg’s courage and contributions should be honored by abrogating the Espionage Act of 1917, which was designed to stifle his example of dissent and whistleblowing.  Ellsberg’s resolve and tenacity were unusual.  He exposed the mendacity of the Johnson and Nixon administrations, giving the New York Timesand the Washington Post  the Pentagon Papers, which they published.  The Times’ Abe Rosenthal and the Post’s Ben Bradlee did the right thing, but Chairman of the Senate Foreign Relations Committee William Fulbright and other senators had panicked and returned the papers to Ellsberg, refusing to make them public.

When he completed his work in exposing the immorality of the Vietnam War, Ellsberg focused on warning the American people about the dangers of nuclear weaponry and the militarization of national security policy.  His memoir, “The Doomsday Machine: Confessions of a Nuclear Planner,” was far more consequential than the Pentagon Papers.  It warned about the dangers of nuclear proliferation and mutual assured destruction as well as the most dangerous arms buildup in the history of civilization.

Ellsberg, the greatest whistleblower in U.S. history, was labeled America’s “most dangerous man” by President Richard Nixon and Secretary of State Henry Kissinger, which tells you a great deal about the two war criminals responsible for needless deaths in Vietnam, Cambodia, and Chile.  Ironically, Ellsberg had established himself as a national security expert in the 1950s, when he lectured to Professor Kissinger’s seminar at Harvard.  At the time, Ellsberg was a Cold War hawk and introduced the notion of irrational posturing in global affairs, which Nixon and Kissinger applied in policies toward Vietnam and Cambodia.  Ellsberg abandoned these ideas; Nixon and Kissinger held on to them much to our peril.

Under the Espionage Act of 1917, Ellsberg could have faced a faced a potential 115-year prison sentence. Fortunately, the Nixon administration’s illegal harassment of Ellsberg led a federal judge to dismiss all charges against him because of “gross prosecutorial misconduct” so severe as to “offend the sense of justice.”

The Obama administration invoked the Espionage Act more than any other administration in history.  Whistleblowers Chelsea Manning and Reality Winner were tried under the Act and received long prison sentences.  Julian Assange is facing charges under the Espionage Act, and former Times’ reporter James Risen was charged for doing his job. Former president Donald Trump is guilty of numerous acts of obstruction of justice and theft and retention of government property, but he shouldn’t be tried under the Espionage Act.

Jonathan Turley, a lawyer who defended Trump in his first impeachment trial, reminds us that the Espionage Act was passed to “crackdown on political dissidents,” particularly those who were opposed to World War One.  According to Turley, the Espionage Act is the “government’s favorite weapon” to use against its critics and is the “last refuge” of any administration that “lacks other means to punish targeted persons.”  The fact that Trump emphasized that he didn’t “want anybody looking through my boxes,” suggests that espionage itself was not one of his motives.  The charges of conspiracy to obstruct justice and to withhold and conceal documents in a federal investigation should suffice to find Trump guilty.

The predicate for the passing of the Espionage Act during WWI were the Alien and Sedition Acts of 1798, which were designed to curtail the excesses of an unrestrained press that opposed war against France.  The Acts allowed the president to deport aliens, and to permit their arrest and imprisonment during wartime in an effort to suppress dissent.  The Acts were clearly a violation of First Amendment principles regarding free press, speech, and assembly, with French and Irish immigrants the key targets.  President John Adams’ biographer, David McCullough, considered the legislation the “most reprehensible acts of his presidency.”

Two months after the United States entered WWI, Congress passed the Espionage Act of 1917 to criminalize the mishandling of government records relating to national defense and any “attempts to incite insubordination or obstruct the recruitment of troops.”  Similar to the Alien and Sedition Acts, the primary purpose of the Espionage Act was to stifle criticism of the Wilson administration’s decision to enter the war.  The constitutionality of the law and the meaning of its language has remained controversial to this day, and could be a factor in any trial of Donald Trump.  Ironically, a critic of WWI, Eugene Debs, was imprisoned, but received nearly a million votes while in prison in his effort to become president in 1920.

The Sedition Act of 1918 was repealed in 1920, and between 1921 and 1923, Presidents Warren Harding and Calvin Coolidge released all those convicted under the Sedition and Espionage Acts.  More recently, President Barack Obama commuted the long prison sentence of Chelsea Manning, and his attorney general, Eric Holder, referred to whistleblower Edward Snowden as a “public servant.”  CIA officer Aldrich Ames and FBI agent Robert Hanssen were convicted under the Espionage Act for spying for the Kremlin, rare examples of the legitimate use of the legislation.

There have been 11 prosecutions of government officials under the Espionage Act, and 7 of them occurred during the Obama administration.  The prosecutions of NSA whistleblower Thomas Drake, CIA officer John Kiriakou, and Fox News reporter James Rosen were heavy-handed.  These cases demonstrated that the Espionage Act is, in fact, an extremely blunt instrument to use against dissidents and whistleblowers.  The Act, moreover, led to the Internal Security Act of 1950 that was passed over President Harry Truman’s veto in order to make mere retention of security documents a crime regardless of intent.

Trump’s lawyers presumably will mount a legal defense to the Espionage Act in addition to other judicial challenges.  The fact that the Espionage Act does not allow the defense to raise the issue of over-classification of documents or to explain their defendants’ reasons for their actions will be issues.  Congress should move quickly to abrogate the Espionage Act as a way to honor the memory of Dan Ellsberg.

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