American federal administrations sometimes wish to “get” someone who has bruised their self-esteem or doubted their sovereignty. On some occasions, alas, there is no obvious legal way to do so; then the search is on, with great rewards for the apparatchik who can find the next best thing to an actual law. In the case of Julian Assange—an Australian citizen not located on U.S. soil but answerable nonetheless (some say) to universal American law—Justice Department spokesmen are hinting that the rusty old Espionage Act of 1917 may do the trick. It is lethal enough, certainly, and Americans shot enough of their own toes off with it (and its amendments in 1918) during a bender of ruling-class and popular psychosis between 1917 and 1919.
On June 15, 1917, Congress assaulted American freedom with an Espionage Act providing that anyone who, with harmful intent, should “obtain information” about any defense establishment, piece of equipment, repair shop, wireless station (and many other things); or having acquired copies of any photograph, plan, blueprint, or such—that is, “anything connected with the national defense [emphasis added]”—should then lose them or give any of them to unauthorized parties (perhaps aiding the enemy), could be fined up to $10,000, or imprisoned up to two years, and “in time of war,” given the death penalty. Someone who, intending to inform the enemy “in time of war,” learned something about American military organization and planning (and much else), such knowledge being conceivably “useful to the enemy,” would be rewarded with death or up to 30 years imprisonment. For false reports that interfered with the war effort, or caused (or attempted to cause) insubordination, and so on, in the armed forces, or obstruction of military recruitment, the penalties were fines up to $10,000 or imprisonment up to 20 years, “or both [emphasis added].” “Conspiracy” to do any of the above, or “harboring” someone who did (or might do) any of them, earned fines up to $10,000 and/or imprisonment up to two years.
The statute’s rhetorical overkill, haunted by the nagging fear that some microscopic detail had been overlooked, was well crafted to enable the dumbest prosecutor in the land to make a case. Somewhere between zero and a handful of actual foreign spies were caught under the 1917 Espionage Act. The Sedition Act of 1918 accounted for most of the convictions of Americans during the war. The 1918 additions, which told Americans in great detail what they could think, believe, or say, were dropped after the war, although the federal government has since sought to achieve their effect by other means.
And now we call our chief witness, John W. Burgess, an East Tennessee Unionist who fought in the Civil War. From the mid-1870s he reigned for many decades as head of Columbia University’s department of political science. He held Hegelian views on State and government, capped by the absolute sovereignty of the union. But while these rather ominous-sounding propositions defined the basis of the political system, Burgess’s actual notion of everyday governing was a kind of laissez-faire liberalism. He reacted badly to the Spanish-American War (1898) and rising Progressivism, writing in 1915 (The Reconciliation of Government with Liberty): “The Jingo and the Social Reformer have gotten together and have formed a political party, which threatened to capture the Government and use it for the realization of their programme of Caesaristic paternalism.”
Burgess and Opposition
After war broke out in Europe in 1914 the German-educated Burgess dared to defy in print a solid Anglophile, pro-Ally consensus within America’s northeastern elite for several years. For his trouble he found himself on Secretary of War Newton D. Baker’s list of authors deemed “pro-German,” pacifist, and likely to undermine the war effort and destroy the morale of the troops. (There was a lot of deeming in those years.) Burgess was one of many thoughtful people who lived through the madness, repression, and constitutional inventiveness enjoyed by Americans during World War I.
Wartime experience concentrated Burgess’s critical faculties and increased his preference for continental isolation over foreign adventures. His Recent Changes in American Constitutional Theory (1923) set the stage for later Old Right thinkers. Burgess was quite eloquent on Congress’s inventive notions, from April 1917 onward, respecting conscription, free speech, and war powers. (A reprint of Recent Changes was sold by FEE as late as mid-1956 for one dollar.)
In his book Burgess noted that in 1917 Congress undertook conscription for a foreign war. But the Constitution only allowed “universal military duty and service, under the form of the militia of the States”—and then only “in defense against invasion, suppression of insurrection and executing the laws of the Union.” If government could conscript Americans for any overseas conflict that it could itself precipitate, it could “hold the people of the country under permanent military law power . . . [and] put the last drop of blood of every man, woman and child in the country at the arbitrary disposal of the Government” (tinyurl.com/7j43wh2). Naturally the Supreme Court approved the new-modeled conscription.
No federal power existed, Burgess continued, to suppress speech or suspend habeas corpus in the states; this was a point of territorial jurisdiction, and the federal government did not have the required jurisdiction over the states, except in the two cases named in the Constitution: invasion or insurrection. Here Burgess found a use for the states (not previously his favorite political bodies) and soon found one for the Milligan decision (1866), in which the Supreme Court concluded that suspension of habeas corpus “did not contain, in itself, any power to suspend any of the other constitutional immunities of the individual against governmental power” (Burgess’s words; emphasis added). As a matter of territorial jurisdiction, Burgess argued, the federal government could only restrict speech in the District of Columbia or in federally administered territories—not in the states. And where federal authorities had jurisdiction, they could constitutionally do little more than enact ordinary libel and slander laws. Burgess stressed the supposed enumeration of federal powers in Article I—no other powers being granted.
Under the war power—“generally . . . a very hazy notion”—Congress had passed the Espionage Act, where “the word war is used designating the time and occasion for its enforcement and not the words invasion or rebellion. . . .” In this manner, Burgess wrote, the government claimed powers that it could use constitutionally only in two cases for use in a speculative and self-chosen adventure “on foreign soil three thousand miles away.” If it could do so Americans were living under “autocracy, not constitutionalism.” Burgess had little hope for the future and thought that Americans could look forward to Caesarism tempered by elections. (By now it’s not especially tempered.)
Along the way Burgess made a particularly striking argument against certain amendments to the Espionage Act passed in 1918. These sections pretended to make unlawful “any abusive language” about the American “form of Government” intended to bring it “into disrepute.” But, Burgess observed, Congress could not suspend Article 5’s amending power merely because it had found Americans a foreign war; therefore it could not suspend freedom of speech and of the press, which were essential to actual use of the (unsuspended) amending power. Amendment involved suggested changes, and those necessarily implied criticism of existing forms. Q.E.D. (John Taylor of Caroline made a very similar argument from fundamentals against the late-eighteenth-century Alien and Sedition Acts. See his Inquiry into the Principles and Policy of the Government of the United States.)
Concluding the book, Burgess put his Hegelian terminology to good use. He said that the underlying sovereignty of the State (= the Union) had passed from the American nation to the day-to-day governmental apparatus. Sovereignty, once lost, might not be recovered without revolution. To avoid that drastic solution Burgess recommended an amendment to exclude Congress from the amending process, and an amendment clearly making all suspensions of Americans’ liberties during foreign wars unconstitutional. Since most twentieth-century American wars (and, using the Obama administration’s word, “kinetic” spasms) have been, or are, foreign, strictly speaking, this was an appealing idea.
Younger scholars saw Burgess’s failure to become a Wilsonian War-Liberal as a terrible blot on his reputation. Those who agreed with Burgess repositioned him as a prophetic, if somewhat conservative, classical liberal. It seems possible that Burgess’s distinction between the abstract Hegelian State and ordinary government lived on in a more critical, revisionist form in the work of Albert Jay Nock, former Freeman editor Frank Chodorov, and John T. Flynn.
Putting federal power first, the U.S. Supreme Court found all the World War I experiments damned by Burgess to be self-evidently constitutional. That alleged liberal Justice Oliver Wendell Holmes adjusted them microscopically in some famous cases that did very little for free speech and a free press. It fell to the American Civil Liberties Union to do any real work on this front.
In 1944 Lawrence Dennis and 29 codefendants withstood charges that as “isolationist” and “fascist” writers, they had aided the enemy. They prevailed, in part, because the prosecution could not show that the defendants had written anything intended to “cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States.” The government had a speculative “theory” rather than a case.
The Total American State
Bad enough in its original context of war as “the health of the State” (Randolph Bourne) and America’s first experience of “the total, or totalitarian, state” (Robert Nisbet), the Espionage Act of 1917 quietly survived and its provisions now reside in Title 18 of the Federal Code. Consider one hardy survivor: the transfer from Any One to Any Other One of information of any kind “relating” to national defense. This vague language could be of some aid in prosecuting present-day leakers. Official leakers need not worry: It isn’t really leaking when the government does it, just as it isn’t perjury when the prosecution does it.
While the Act lost some of its bite when the 1918 sedition provisions lapsed, government gained new weapons with the Smith Act (1940), and today Title 18 contains at least seven very tedious and promising chapters dealing with, among other things, conspiracy; malicious mischief (“interference with the operation of a satellite”); terrorism; treason, sedition, and subversion; wire and electronic communications interception; stored electronic communications; and much else besides.
Now we are near the heart of it. A government that insists on global domination will have many projects, enemies, and operations, and therefore many secrets. Eventually it “classifies” the number of paper clips in every office. Yet America’s nineteenth nervous breakdown or some enemy’s victory in a war (when it even is a war) will hardly follow from accidental or deliberate exposure of such “secrets.” Instead the public might well learn things it had every right to know in a largely hypothetical democracy.
As things stand, the executive branch makes secrets out of nothing at geometric rates of expansion. Deferring to the executive as always, the courts play phony balancing games, weighing the mere public’s “interest” in free speech, freedom of the press, and the like, against the government’s “interest” in world rule, keeping its secrets, not being disappointed, and so on. For the foreseeable future, government will prevail. It has all statutes and most of the judges, and we—Americans—don’t. (For current trends, see Stephen I. Vladeck, “Inchoate Liability and the Espionage Act,” Harvard Law & Policy Review, 2007.)
These days a president can declare his legal “right” to target anyone in the world (Americans included) said to be connected to vaguely outlined enemies with a drone or a cruise missile. Under the NDAA (National Defense Authorization Act), recently signed by the President after a phony show of disagreement, the executive may indefinitely detain alleged terrorists (Americans included) without ever having to show anyone—not Congress, not the courts—the least evidence in favor of the claim. We have a Super-Espionage-and-Sedition Act by other means. The situation insults Americans’ intelligence, and rightly so. On the upside certain ambitious projects to export American “freedoms” to deserving but deprived foreign lands will now become cheaper. With only one or two freedoms actually on hand, the packaging and shipping costs will plummet. A net gain for American frugality! Perhaps even the military budget will be trimmed.
John W. Burgess would not be entirely surprised. But we mustn’t repeat here the other remedy he mentioned should his proposed constitutional amendments fail to go forward. Mentioning that one might conceivably constitute “sedition.”