By Kevin Gosztola
September 17, 2020
“There has never, in the century-long history of the Espionage Act, been an indictment of a U.S. publisher under the law for the publication of secrets,” declared Carey Shenkman, an attorney who has co-authored a first-of-its-kind peer-reviewed book on the Espionage Act.
Shenkman testified during WikiLeaks founder Julian Assange’s extradition trial and added, “There has never been an extraterritorial indictment of a non-[United States] publisher under the Act.”
“During World War I, federal prosecutors considered the mere circulation of anti-war materials a violation of the law. Nearly 2,500 individuals were prosecuted under the Act on account of their dissenting views and opposition to U.S. entry in the war,” Shenkman added.
Assange is accused of 17 counts of violating the Espionage Act and one count of conspiracy to commit a computer crime that, as alleged in the indictment, is written like an Espionage Act offense.
The charges criminalize the act of merely receiving classified information, as well as the publication of state secrets from the United States government. It targets common practices in newsgathering, which is why the case is widely opposed by press freedom organizations throughout the world.
Shenkman previously was an associate for Michael Ratner, an esteemed human rights attorney who was the president emeritus for the Center for Constitutional Rights. Ratner was part of the WikiLeaks legal team until he tragically died from cancer in 2016.
Prosecutor Clair Dobbin attempted to disqualify Shenkman because he worked for Ratner when he represented Assange. She also frittered away the time that she had to cross-examine by insisting Shenkman provide hypothetical opinions on statements in past cases with outcomes favorable to the prosecution.
Few of the prosecution’s questions had anything to do with his testimony for the court on the Espionage Act, as it is being applied to Assange, and the Computer Fraud and Abuse Act, which Assange is also accused of violating. Shenkman did not hesitate to tell her she was wasting his time and the magistrate court’s time.
The prosecution probably sought to avoid most of what Shenkman had to share with the court because it would force the U.S. government to confront how this is a political prosecution, and they have to maintain the charges are not political to win Assange’s extradition.
Shenkman told Judge Vanessa Baraitser the Espionage Act was a product of “one of the most repressive periods in the history of the United States.”
“Following the U.S. declaration of war in World War I, the administration of President Woodrow Wilson introduced a multi-faceted bill that would become the Espionage Act of 1917. The term ‘espionage’ was a misnomer,” Shenkman recalled. “Although the law allowed for the prosecution of spies, the conduct it proscribed went well beyond spying. Indeed, the Espionage Act would become the principal tool for what President Wilson dubbed his administration’s ‘firm hand of stern repression’ against opposition to U.S. participation in the war.”
The law passed in Congress on June 15, 1917, and was amended eleven months later. “[It] was expansive in scope. Despite the removal of the most egregious passages of the original bill, the Act threatened First Amendment rights more than any federal statute passed in the previous century,” Shenkman wrote in his statement to the court.
He detailed how the government could broadly apply it to dissenters:
Its full title is noteworthy: “An Act to punish acts of interference with 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.”
Whilst the Espionage Act established harsh penalties for spying for a foreign enemy in wartime and in light of U.S. entry into the war addressed such matters as U.S. control of arm shipments and its ports, the Act also reflected the government’s desire to control information and public opinion regarding the war effort. It embraced broad proscriptions against the possession and transmission of information related to national defense; established severe penalties for criticism of the war; contained conspiracy provisions; and established a censorship system for the press. The original legislation was not demarcated as wartime emergency legislation; key provisions would continue to apply in times of peace as well as war, and remain in force a century after their enactment.
Shenkman highlighted the prosecutions of film producer Robert Goldstein, International Workers of the World leader William “Big Bill” Haywood, and Socialist Party presidential candidate Eugene Debs.
Debs was sentenced to prison for 10 years after he gave a speech in Canton, Ohio, that was called “the most famous protest speech of its time.” Before his sentence, he warned, “Free speech, free assemblage and a free press, three foundations of democracy and self-government, are but a mockery under the espionage law administered and construed by the official representatives of the ruling class.”
Shenkman pointed out it has always been up to prosecutors to decide whether to go after innocent citizens. As far as the press goes, “internal deliberations” over cases have consistently “shown great ambivalence about the scope of the Espionage Act.”
Prosecutors have recognized if they prosecute certain journalists in the U.S. media then they will open the door for prosecutions of all journalists at all media outlets that will jeopardize the First Amendment, Shenkman noted.
There are prior attempts to prosecute publishers that involved grand juries. As Shenkman highlighted, the Chicago Tribune faced the threat of prosecution in 1942 after the “paper published secrets following the U.S. victory at the Battle of Midway.” The Tribune was a conservative newspaper that President Franklin Delano Roosevelt viewed as a “political enemy.”
“Ultimately, the case lost momentum and was dropped, owing partly to the concerns raised for freedom of the press and reluctance to disclose more secret information at trial. The prosecutor of the case, William Mitchell, was skeptical that the Espionage Act applied to publication by a newspaper,” according to Shenkman.
A small foreign affairs journal in New York City was targeted by President Harry Truman after it published an analysis critical of post-war policies in Asia. They relied upon classified information from “government sources who were deeply concerned over official policies, particularly in China.”
Truman’s administration arrested three journalists and three government sources for conspiracy to violate the Espionage Act. However, no indictments were ultimately issued under the Espionage Act. Evidence emerged that the Justice Department was heavily influenced by political pressures from multiple factions within the Truman administration. Acting U.S. Secretary of State Joseph Grew came under heavy criticism when he indicated that the arrests were “one result of a comprehensive security program which is to be continued unrelentingly in order to stop completely the illegal and disloyal conveyance of confidential information to unauthorized persons.”
Outrage among the press led to charges being abandoned and severe sentences became small fines.
A third example involves the Pentagon Papers and Boston grand jury from 1971-1973. They were empaneled to investigate the disclosure of a top secret study of the Vietnam War by whistleblower Daniel Ellsberg. (I covered this in great detail in March 2019 here.)
Two other examples were shared with the court that involve Beacon Press and Jack Anderson. In the early 1970s, Beacon Press was investigated for publishing a “full version” of the Pentagon Papers after Senator Mike Gravel read them into the congressional record. Anderson was a syndicated columnist, who was on President Richard Nixon’s “enemies list.” He wanted Anderson prosecuted for publishing a “top secret report regarding a secret U.S. military intervention in the war between India and Pakistan, that many feared would catalyze World War III.”
Shenkman did not mention them in his testimony, but in his submission to the court, he covered journalists Seymour Hersh and James Bamford, who were threatened with prosecution in 1975 and 1981 respectively.
Dick Cheney, who was an aide to President Gerald Ford, actually worried prosecuting Hersh would be “a public relations disaster.” He wrote, “What will the public reaction be? What will the Hill reaction be?” And, “How do we counter expected criticism?”
Forty-five years later, President Donald Trump’s administration quite simply is not bothered by any of the criticism of their administration in the press. They feel insulated from any blowback that may occur as a result of targeting a journalist with the Espionage Act.
Mark Summers, a defense attorney, asked Shenkman if journalists would have had any reason to believe the government would bring an Espionage Act prosecution against a member of the press in 2013. Shenkman said there were some people who were nervous.
In an affidavit in a leak case against State Department employee Stephen Kim, the Justice Department named Fox News reporter James Rosen as an “aider, abettor, and co-conspirator.” It resulted in a “firestorm.”
Shenkman told the prosecutor after news reporting in the establishment press in 2013, he did not believe Assange would be indicted. He certainly did not believe he would ever be indicted for publishing materials from Chelsea Manning.
“I never thought based on history we’d see an indictment that looked like this,” Shenkman declared. He called the charges “truly extraordinary.”
In his sober analysis, Shenkman asserted, “The current U.S. administration has signaled its desire to escalate prosecutions as well as ‘jailing journalists who publish classified information.’ The Espionage Act’s breadth provides such a means.”
“While prior legislators and Attorneys General have attempted to provide reassurance that § 793 of the Act would not ever be used against the press, such reassurances are regarded as having no weight against the plain text of the law and the reality of the present day.”
“What is now concluded, by journalists and publishers generally, is that any journalist in any country on earth—in fact any person—who conveys secrets that do not conform to the policy positions of the U.S. administration can be shown now to be liable to being charged under the Espionage Act of 1917,” he concluded.