Espionage Overreach: On Ralph Engelman and Carey Shenkman’s “A Century of Repression”
By Stephen RohdeAugust 4, 2023
A Century of Repression: The Espionage Act and Freedom of the Press by Ralph Engelman and Carey Shenkman
For the first time in the 106-year history of the Espionage Act, we finally have a definitive account of this dangerous law. Released last fall, A Century of Repression: The Espionage Act and Freedom of the Press, by Ralph Engelman and Carey Shenkman, thoroughly demonstrates how the Espionage Act has posed, and continues to pose, a grave threat to the ability of the press to do its job.
Engelman is a senior professor emeritus of journalism and communication studies at Long Island University and faculty coordinator of the George Polk Awards in Journalism. Shenkman, a constitutional lawyer focusing on freedom of expression, transparency, and technology, serves on the panel of experts of Columbia University’s Global Freedom of Expression Program.
Together they have written a timely and compelling “biography” of the Espionage Act, vividly told through the harrowing stories of whistleblowers, government employees, policy consultants and journalists, from prominent socialist Eugene Debs to whistleblower Edward Snowden. Engelman and Shenkman describe in detail how the lives of these brave people were destroyed by FBI and grand jury investigations, Congressional hearings, and Justice Department prosecutions, some of which led to convictions while others were dropped or dismissed—though not before the targets were tarred with a law most people assume is reserved for spies and traitors.
The authors trace the history of the Espionage Act which was enacted two months after the United States entered World War I, at the urging of President Woodrow Wilson. He despised dissenters, calling them “creatures of passion, disloyalty, and anarchy [who] must be crushed out.” The act, along with its later amendments, contains a warren of convoluted and overlapping provisions so vague and ambiguous as to offer little or no notice of what is actually prohibited, thereby affording prosecutors a field day of choices regarding whom to charge and what charges to bring. “Its fundamental flaw,” Engelman and Shenkman 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.” Ominously, the act “permits the government to conflate actions necessary in a democratic society—dissent, whistleblowing, and investigative reporting—with disloyalty.”
The full title of the act gives no hint of how it would be used to suppress domestic dissent and interfere with the functioning of a free press: “An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes.” Instead of a straightforward law punishing spying and espionage, the act would trigger federal prosecutions for unauthorized distribution of what it vaguely termed “information respecting the national defense,” aka national defense information (NDI). In addition, the act made it a crime, “whether or not the nation was at war,” as Engelman and Shenkman put it, for “anyone [to obtain] NDI ‘with intent or reason to believe that the information … is to be used to the injury of the US, or to the advantage of any foreign nation.’” Does it cause “injury” to the government to have its mistakes and war crimes revealed?
Furthermore, the act prohibits the transmission or communication of NDI “to any person not entitled to receive it.” This open-ended language is not limited to spies and foreign governments. Instead, it has been used to prosecute government employees who leaked classified information to the press—a staple of investigative journalism. National security law expert and professor Steve Vladeck calls the act “anachronistic, labyrinthine, constitutionally problematic, and confusingly verbose.”
According to Engelman and Shenkman, as soon as the Espionage Act became law in June 1917, the Justice Department and the postmaster general immediately began using it not to punish spies but to silence opposition to the war. In May 1918, the act was amended to add the Sedition Act, which made it a crime during war to “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States” or to bring any of those institutions “into contempt, scorn, contumely, or disrepute” or “to incite, provoke, or encourage resistance to the United States,” or to “oppose the cause of the United States.” Peaceful, nonviolent criticism of the government, the military, or the flag was made a crime punishable by 20 years imprisonment and a fine of $10,000 (almost $200,000 in today’s dollars). And the postmaster general was authorized to use the Sedition Act to censor publications and deem them “unmailable,” chocking off an active vehicle of anti-war protest.
Engelman and Shenkman describe the early prosecutions under the new law. Socialist leader Eugene Debs was convicted for telling an anti-war crowd in Canton, Ohio, that “it is extremely dangerous to exercise the constitutional right of free speech in a country fighting to make democracy safe for the world.” Charles Schenck and Elizabeth Baer, members of the Socialist Party’s executive committee in Philadelphia, were convicted of obstructing the draft for sending anti-war fliers to draft-age men. And Jacob Frohwerk was convicted for publishing anti-war editorials in the German-language Missouri Staats Zeitung newspaper.
Although initially Justice Oliver Wendell Holmes Jr. wrote unanimous Supreme Court opinions upholding all of these Espionage Act convictions, he changed his mind. He came to agree with First Amendment scholar and Harvard Law School professor Zechariah Chafee that it is “in times of popular panic and indignation that freedom of speech becomes important as an institution.” Joined by his protégé, Justice Louis Brandeis, he dissented in the next Espionage Act case.
It would take 50 years for the views of Holmes and Brandeis to emerge as the prevailing theory of First Amendment law in the United States. Yet to this day, the Espionage Act has never been subjected to a full-scale test in the US Supreme Court. It has been allowed to remain on the books as a loaded gun available whenever the government decides to punish dissent or criticism of American foreign and military policies or the exposure of the damage the United States has caused around the world.
In addition to those who were targeted for expressing anti-war sentiments, Engelman and Shenkman also describe many others who have been victimized by the Espionage Act. One such unlucky soul was Robert Goldstein, “the owner of an apparels shop that supplied costumes to early Hollywood movies.” In 1917, he spent the extraordinary sum of $200,000 to produce The Spirit of ’76, which told the valiant story of the American Revolution and the atrocities committed by the British. Unfortunately, the film opened about a month after US entry into the war. Goldstein was charged with violating the Espionage Act. Why? Because he was “attempting to harm the war effort by portraying the United States’ chief ally in a critical light,” according to the authors. What’s even more incredible—he was convicted and sentenced to 10 years in prison. He was “released, penniless, after three years.” Struggling to resume his film career, in the US and then Europe, he “was last heard from in 1935, writing from Germany, where he could not afford to pay nine dollars to renew his passport. He is presumed to have perished in a concentration camp. No copy of The Spirit of ’76 seems to have survived him.”
Engelman and Shenkman continue with a list of equally egregious prosecutions:
[I]n Iowa a man received a one-year jail sentence for applauding and contributing twenty-five cents at an antiwar rally. A Vermont pastor was sentenced to fifteen years for distributing a pacifist pamphlet based on the teachings of Christ. A Russian-born woman, a socialist editor, earned a ten-year sentence for making an antiwar statement to a women’s dining club in Kansas City. In South Dakota, thirty German Americans were convicted for petitioning the governor to reform conscription procedures.
And on and on.
As the authors further point out, “Attempts were made to use the Espionage Act as a weapon against a wide spectrum of targets during the Second World War.” Engelman and Shenkman reveal the little-known “campaign against the [emerging] Black press reviv[ing] accusations of disloyalty and communist sympathies […] made during the First World War and in its aftermath. During the earlier war, “the editor of the San Antonio Inquirer was sentenced to two years in prison for allegedly causing disloyalty by criticizing the hanging of [Black] soldiers who participated in a Houston riot.” J. Edgar Hoover, “warning that ‘the negro is seeing red,’” directed his agents to “infiltrat[e] and disrup[t] Marcus Garvey’s Universal Negro Improvement Association, whose newspaper, Negro World, had a circulation approaching 500,000.”
As Engelman and Shenkman note, Hoover acknowledged that the American entry into World War II “created an opportunity to move from covert to overt persecution of the Black press.” An FBI agent in Oklahoma City alerted Hoover that a September 1942 issue of the Black newspaper Oklahoma City Dispatch “contained communistic phrases like ‘civil liberties,’ ‘inalienable rights,’ and ‘freedom of speech and of the press,’” but no action was taken. “In September 1943,” the authors reveal, “Hoover issued a 714-page report attempting to link Black publications and journalists to the Communist Party.” Despite Hoover’s concerted efforts to demonize the Black press, which unfortunately led to significant self-censorship, calmer heads in control of the Justice Department ultimately decided that no Black newspapers would be prosecuted under the Espionage Act during the Second World War.
Meanwhile, the Roosevelt administration had bigger fish to fry: the mainstream press—at least when it had the audacity to criticize his domestic and foreign policies. The Chicago Tribune was high on the president’s enemies list when it published a story about how American cryptographers, in advance of the Battle of Midway, had decrypted the code used by the Japanese. Roosevelt pressured the Justice Department “three times to seek an indictment before a grand jury was finally convened in August 1942. […] [But] after four days of testimony, the grand jury refused to return an indictment.”
While it prosecuted fewer than during World War I, the government did bring two dozen Espionage Act prosecutions during World War II involving a total of 50 persons, which, according to Engelman and Shenkman, “served as a tool to threaten the press with prosecution and to justify intimidating visits and surveillance by the FBI and postal authorities.” But there were signs that the government was learning to be more cautious in using the Espionage Act against the press. In a traditional spy case, Gorin v. United States (1941), the Justice Department reassured the Supreme Court that the “newspaper correspondents, the critical statesmen, the political commentators, the students of military affairs, who obtain and reveal information regarding the national defense are automatically excluded from the reach of these provisions.”
From the end of President Dwight D. Eisenhower’s administration and through the presidencies of John F. Kennedy and Lyndon Johnson, the government did not initiate any prosecutions under the Espionage Act. But that would all change with the election of Richard Nixon. His “hostility toward the press” combined with “growing opposition to US interventions abroad, particularly in Vietnam,” fueled the renewed use of the act to suppress dissent and muzzle criticism. In 1971, Daniel Ellsberg and Anthony Russo released the Pentagon Papers, “consisting of three thousand pages of historical analysis [of the Vietnam War] and four thousand pages of original documents, [all of which] were classified as ‘top-secret—sensitive.’” Nixon’s national security advisor Henry Kissinger, went so far as to deem Ellsberg “the most dangerous man in America.”
After The New York Times published the first two installments of the Pentagon Papers in June 1971, Nixon told aides he wanted to “destroy the Times.” The Justice Department filed a civil complaint based on the Espionage Act and secured a temporary restraining order preventing further installments. The Times fought back, and in an expedited appeal, the case quickly reached the Supreme Court. In a 6–3 decision, the court lifted the restraining order and held that Nixon had not met the “heavy burden” of proving the “requisite harm to sustain prior restraint against the press.” While Engelman and Shenkman acknowledge that the ruling has “gained a reputation of mythic proportions as a great First Amendment triumph,” they also cite constitutional scholars who consider the case a “First Amendment fizzle” and “a loaded gun pointed at newspapers and reporters who publish foreign policy and defense secrets.” The six disparate opinions issued by the court left open the potential for postpublication criminal prosecution under the Espionage Act, against not only Ellsberg and Russo but also the newspapers who published the leaked information and documents.
Nixon and Hoover commiserated over the defeat in the Supreme Court, calling the justices who sided with the Times “bastards.” Solicitor General Erwin N. Griswold warned that “[m]aybe the newspapers will show a little restraint in the future.” On June 28 that year, “Ellsberg and Russo were indicted under the Espionage Act by a grand jury in Los Angeles.”
What is not well known is that the Justice Department, under Attorney General John Mitchell, convened “two successive Boston grand juries [to pursue] criminal charges of unauthorized transmission of NDI and theft of government property in connection with publication of the Pentagon Papers. At least thirteen subpoenas were issued […] for academics and reporters”; one of these professors even “spent a week in jail after he refused to testify on First Amendment grounds of protecting his sources.” The grand juries were reportedly considering indictments against the Times and other newspapers that had published the Pentagon Papers, as well as against Beacon Press, which was planning to publish a book-length edition of the documents. But in 1972, “the government precipitously disbanded the Boston grand jury […] reportedly to avoid charges that it was illegally gathering evidence for the trial of Daniel Ellsberg [and Anthony Russo] then taking place in Los Angeles.” Thus, despite the intimidation of the press, there would be no definite Supreme Court ruling on whether the act could be constitutionally used against newspapers and book publishers.
Meanwhile, due to the revelation “that the government wiretapped a conversation involving a member of the [Ellsberg and Russo] legal defense team,” the judge granted a mistrial and assembled a new jury. But all charges were later dismissed when prosecutors disclosed that G. Gordon Liddy and Howard Hunt of the infamous Nixon Plumbers Unit had organized a break-in of Ellsberg’s psychiatrist’s office. Thus, as a test of the Espionage Act, the end was again inconclusive.
As Engelman and Shenkman trace the ongoing investigations under the Espionage Act, they describe the first conviction under the act of a media source for revealing NDI. Samuel L. Morison, “a strident conservative and cold warrior,” according to the authors, “worked with a security clearance […] as an intelligence analyst specializing in Soviet vessels at the Naval Intelligence Support Center in Suitland, Maryland.” Morison offered Jane’s Defence Weekly “a secret internal report about an explosion at a Soviet naval base” as well as “three classified US satellite photographs of […] the first Soviet nuclear-powered aircraft carrier at a shipyard on the Black Sea, which he thought revealed a threatening increase in the USSR’s naval capabilities. In an accompanying note, Morison wrote: “If the American people knew what the Soviets were doing, they would increase the defense budget.”
The government charged Morison with several violations of the Espionage Act. The trial judge ruled that evidence of Morison’s “patriotism, commitment to the nation’s military forces, and desire to inform the public about the expansion of Soviet military power” was inadmissible because “[p]roof of the most laudable motives, or any motive at all, is irrelevant under this statute.” Morison was convicted on all charges in October 1985. On appeal, a “consortium of thirty-one news organizations submitted a friend-of-court brief” signed by “the Washington Post, New York Times, Wall Street Journal, and all three broadcast networks,” as well as “National Public Radio, American Newspaper Publishers Association, and the Reporters Committee for Freedom of the Press.” The brief argued that “Congress never intended […] the law to be used against the press or its sources,” warning that, if the law were used this way, “[c]orruption, scandal, and incompetence in the defense establishment would be protected from scrutiny.”
Regardless, in April 1988, Engelman and Shenkman reveal, a “panel of three appellate judges unanimously upheld Morison’s conviction,” though it is notable that two of the judges commented on the “staggering breadth” of the act and said that given “real and substantial” First Amendment issues, “press organizations … are not being, and probably could not be, prosecuted under the espionage statute.” Still, the Supreme Court declined to hear Morison’s appeal, and consequently, as Engelman and Shenkman point out, “a broad precedent was established that ruled out consideration of altruistic motive, public value, or the propriety of classification in defending the release of national defense information.”
The Morison prosecution contributed to making the Reagan years, according to Engelman and Shenkman, “the most vigorous expansion of executive power, clandestine operations, and influence of the intelligence community in contemporary US history. […] President Reagan in effect accumulated censorship powers that Congress had denied Woodrow Wilson in 1917” and “succeeded where Nixon had failed in advancing a war against leaks, without recourse to a rogue Plumbers Unit.” The Reagan presidency “established an enduring restrictive framework for freedom of information about national security” with the press bogged down by “a heightened risk of prosecution.” Morison may have been “the first person convicted for providing national defense information to the press under the Espionage Act. He would not be the last.”
A “new frontier in the history of the Espionage Act” was opened by the attacks on September 11, 2001, which led directly to the passage of the USA PATRIOT Act, granting the government broad new powers of surveillance and resulting in the digitization and overclassification of vast amounts of intelligence information, as well as the expansion of potential insider sources. After the USA PATRIOT Act was passed, the authors indicate, “the number of government employees and contractors holding security clearances increase[ed] to about four million, including over a million with top secret authorization.”
From the standpoint of press exposure to prosecution under the Espionage Act, an indictment filed by the Justice Department under President George W. Bush would be the most troublesome. In 2005, “Lawrence Franklin, a defense analyst at the Pentagon, was accused of disclosing classified material about US policy in Iraq and Iran to two lobbyists, Steven Rosen and Keith Weissman of the American Israel Public Affairs Committee (AIPAC), an influential pro-Israel organization.” All three were indicted under the Espionage Act. Engelman and Shenkman note that “Franklin pled guilty to one Espionage Act count and a second count of conspiracy to communicate classified information to an agent of a foreign government, [namely] an Israeli official.”
The lobbyists were accused of “conspiring to obtain classified information and orally transmitting it to Israeli officials and the press.” The federal judge’s pretrial ruling that “the government can punish those outside of the government for unauthorized receipt and deliberate retransmission of information related to the national defense” was the first time a court had “affirmed the liability of third parties who obtain and communicate NDI in violation of the Espionage Act,” although no journalists were charged. The government’s legal team found it difficult to prosecute the lobbyists because of its “fear that classified information would be revealed at trial” and in the face of the judge’s intention to instruct the jury “that the harmful nature of the disclosures needed to be established.” Consequently, all charges were dropped against Rosen and Weissman in 2009, “early in the Obama administration, with the approval of Attorney General Eric Holder Jr.”
Unfortunately, there was yet again no definitive appellate court ruling regarding the scope of the act. In a 2007 law review article, Steve Vladeck argued that “one of the central issues that may surface in a future prosecution of the press under the Espionage Act is inchoate liability—whether the reporters are liable either as co-conspirators, or for aiding and abetting the individuals who provided the protected information.” As Engelman and Shenkman put it, this “prediction would prove prescient.”
One of the most distressing facts the authors reveal is that it was during the Obama administration that the “Espionage Act fully came of age as a prosecutorial weapon against unauthorized press sources.” The Obama DOJ “brought eight prosecutions for disclosures of NDI to the press under the act, whereas only five such cases had been previously recorded throughout all previous administrations.” Engelman and Shenkman describe both the legal and human dimensions of each of these cases in gripping detail.
For example, we meet Thomas Drake, a “decorated veteran and registered Republican,” who, as head of the NSA’s Change Leadership and Communications Office of the Signals Intelligence Directorate, would be indicted for exposing—in his words—“the Pandora’s box of illegality and government wrongdoing on a very significant scale.”
And there’s John Kiriakou, a veteran CIA counterterrorism officer, who, after 9/11, led a series of military raids on al-Qaeda safehouses, including one that resulted in the capture of an Osama bin Laden associate, Abu Zubaydah. For revealing intelligence information to the press, including that Zubaydah had been subjected to waterboarding, Kiriakou was charged in a five-count indictment. He eventually pled guilty to one count and served 23 months in prison. As Andrew Jerell Jones of The Intercept observed, “John Kiriakou is the only CIA employee to go to prison in connection with the agency’s torture program. Not because he tortured anyone, but because he revealed information on torture to a reporter.”
In its closing chapters, A Century of Repression focuses on the recent Espionage Act prosecutions of Chelsea Manning, Edward Snowden, and Julian Assange. The descriptions of these cases are riveting and at times read like a spy novel. But regrettably, this is fact, not fiction. These cases represent the discharge of the loaded gun that commentators have been warning about since the act become law over 100 years ago. The full force of the law has now been brought to bear against two whistleblowers and a publisher.
With a clear and engaging style that ensures readers need no law degree to appreciate the authors’ excoriating analysis of the act, Engelman and Shenkman call it “the most important yet least understood piece of legislation threatening the free flow of information in US history.” For over 100 years, “the act’s effects [have] continued to be deleterious for freedom of expression and public discourse about US foreign and military policy.” Indeed, the country has “witnessed an unprecedented flood of prosecutions for media disclosures during the first two decades of the twenty-first century.” The act is seriously flawed because it does “not permit consideration of the value of leaked secrets to discourse about US policies, the appropriateness of the material’s original classification, and whether the national defense was harmed by a secret’s exposure.” As their book ably demonstrates time and again, the “insidious, exponential increase in prosecutions […] impinging on the rights of confidential sources, journalists, and publishers […] has reached a critical juncture.”
According to Engelman and Shenkman, the “Assange prosecution represented the culmination of a century of threats to the free flow of information and criticism of US foreign and military policy.” They are not alone in thinking so. The charges against Assange, warns Jameel Jaffer, executive director of Columbia University’s Knight First Amendment Institute, “rely almost entirely on conduct that investigative journalists engage in every day. […] The indictment should be understood as a frontal attack on press freedom.” Laura Poitras, a journalist who initially reported on Edward Snowden’s revelations and won an Academy Award for a documentary about her first encounter with him, wrote in a New York Times op-ed in December 2020 that it is “impossible to overstate the dangerous precedent” being set by the Assange prosecution: “Every national security journalist who reports on classified information now faces possible Espionage Act charges.”
The ongoing use of the Espionage Act to prosecute whistleblowers, and now a journalist, should send shivers down the spine of anyone who cares about the First Amendment and the role of a free press in our fragile democracy. Anyone who believes that democracy depends on a robust, wide-open free press should be appalled that the Biden administration has fully embraced Trump’s prosecution of Assange and is actively seeking his extradition from the United Kingdom. As I have argued in the past, “Publishing information that exposes outrageous government conduct is at the heart of the First Amendment.” Biden hypocritically told the audience at the recent White House Correspondents’ Dinner that “journalism is not a crime.” If he truly believes that, then he should immediately drop the Assange prosecution and support calls to reform the Espionage Act so it no longer poses a threat to freedom of the press.
Stephen Rohde is a writer, lecturer, and political activist. For almost 50 years, he practiced civil rights, civil liberties, and intellectual property law.
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