Robert Meeropol writes:
Rumors are swirling that the United States is preparing to indict Wikileaks leader Julian Assange for conspiring to violate the Espionage Act of 1917. The modern version of that act states among many, many other things that: “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States” causes the disclosure or publication of this material, could be subject to massive criminal penalties. It also states that: “If two or more persons conspire to violate any of the foregoing provisions … each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.” (18 U.S. Code, Chapter 37, Section 793.)
I view the Espionage Act of 1917 as a lifelong nemesis. My parents were charged, tried and ultimately executed after being indicted for Conspiracy to Commit Espionage under that act.
The 1917 Act has a notorious history. It originally served to squelch opposition to World War I. It criminalized criticism of the war effort, and sent hundreds of dissenters to jail just for voicing their opinions. It transformed dissent into treason.
Many who attacked the law noted that the framers of the Constitution had specifically limited what constituted treason by writing it into the Constituton: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort” (Article III, section 3). The framers felt this narrow definition was necessary to prevent treason from becoming what some called “the weapon of a political faction.” Furthermore, in their discussions at the Constitutional Convention they agreed that spoken opposition was protected by the First Amendment and could never be considered treason.
It appears obvious that the Espionage Act is unconstitutional because it does exactly what the Constitution prohibits. It is, in other words, an effort to make an end run around the Treason Clause of the Constitution. Not surprisingly, however, as we’ve seen in times of political stress, the Supreme Court upheld its validity in a 5-4 decision. Although later decisions seemed to criticize and limit its scope, the Espionage Act of 1917 has never been declared unconstitutional. To this day, with a few notable exceptions that include my parents’ case, it has been a dormant sword of Damocles, awaiting the right political moment and an authoritarian Supreme Court to spring to life and slash at dissenters.