Ironies of the Espionage Act of (1917) from Schenck to Sheehan, Palmer to Rove

Karl Rove’s likely outing of Valerie Plame as a covert agent has provoked a great deal of discussion about the requirements of the Intelligence Identities Protection Act of 1982 and the elements of perjury, the legal basis of most political scandals since Watergate or even Alger Hiss. Mention of engaging everyone’s favorite deputy chief of staff in trench warfare around the Espionage Act of 1917 rang a Pavlovian bell for me. As a long ago con law student, it reminded me of the most famous Espionage Act Case and the first significant Supreme Court test of the first amendment, Schenck v. United States and a former attorney general with presidential ambitions, Mitchell Palmer.

Charles Schenck was a socialist who opposed the draft during World War I. If you’ve ever taught high school history, one of the hardest questions to get students to comprehend is “Why did the United States get involved in World War I ?”
The actual reasons are complicated and remain somewhat controversial. Two incidents do stand out, the sinking of the Lusitania and the Zimmerman Telegram. In 1915, a German U-Boat torpedoed the British cruise ship Lusitania which happened to be carrying a large number of American passengers. One reason the Lusitania exploded so quickly was that the ship was carrying millions of rounds of ammunition, something that would have made it a legitimate wartime target. British intelligence played an active role in supressing the “munitions” issue, and the incident helped to sway America’s officially neutral sensibilities towards the allies. The ship was also carrying large quantities of aluminum powder, then used in the manufacture of explosives. Remember the claims in our times of "aliminum tubing imports".
Looking back, the Lusitania presents a serious question of who it was that actually endangered American lives that day.

The Zimmerman telegram was one of the first triumphs of modern codebreaking. The British interecepted a telegram from Zimmerman, the German ambassador to the US, to Mexico. In the telegram, the Germans assert that they hope to keep the US neutral in WW1, but in the event that the US entered the war it proposes a German-Mexican alliance with the promise of support for the reacquisiton of Arizona, New Mexico, and Texas (which would have made the president Mexican). fwiw The Mexicans wrote back and indicated that they could never hold three state/provinces filled with hostile Americans. Talk about a Harry Turtledove alternate history plot though.
The British revealed it to the US, Zimmerman, German Ambassador to the US, made the mistake of trying to explain rather than deny the telegram. The US entered the war on the British side. The British never revealed that the actual telegram was lifted from a US “secure” diplomatic telegraph line. In other words, they were spying on the US themselves and had to do some contortions to cover over that fact so they could get the text of the telegram to Woodrow Wilson.

World War 1 was the first time the US and Britain formally allied in a major war. While we share a common language, the British remain the only country to have invaded the continental United States. In short, British intelligence played a huge role in getting the US into World War I and this link between British intelligence and the US runs through the British evidence cited about Uranium in Africa and the need to “fix intelligence” alluded to in the Downing Street Memos.
It is also the context for Charles Schenck and Elizabeth Baer two Philadelphia socialists who opposed the draft in the year of the Bolshevik Revolution. The actual pamphlet Schenck and Baer (at least two of the espionage act defendants were women. Remember that women didn’t yet vote in national elections in 1918) distributed some 15,000 pamphlets that advocated peaceful resistance to the draft on the grounds that a draft for a foreign war was precisely the sort of militarism that most Americans sought to escape. (one source of unhappiness in the colonies was being drawn into the French and Indian (Seven Years War) as combatants. Schenck and Baer were convicted for violating the Espionage Act of 1917 which then contained provisions making it unlawful to interfere with the draft in any way. Yes, this is the same Espionage Act that Karl Rove may have violated.
Schenck and Baer appealed by challenging the Espionage Act as a violation of their first amendment right to free speech. Their argument was essentially what most Americans consider to be the essence of the first amendment, “dissent was an American right even in wartime”. The unanimous Supreme Court led by Oliver Wendell Holmes upheld the Espionage Act by claiming that the pamphlet presented a “Clear and Present Danger”
The Schenck Decision
that went beyond protected speech during war time. While Americans routinely claim that one of the great things about our system is that it gives you the right to criticize your country even during wartime, it actually wasn’t true for many years. Schenck is surprisingly still good law, though it was narrowed considerably by Brandenburg v. Ohio in 1968 when the court decided to intercede on behalf of the right of the KKK to hold rallies as long as their speech did not present an “imminent” danger. I have no idea why pacifists fare worse in free speech cases than the KKK or the Nazis, but it’s been part of a long pattern.

Schenck went to prison for 6 months and Baer was sentenced to 90 days for the 1918 equivalent of blogging against the draft for a foreign war in which the United States had no clear immediate interest. As I track the many things written about Cindy Sheehan, even the president, unlike his shotgun firing dove hunting neighbor, seems to give lip service to the notion that we are free to demonstrate and dissent against an ongoing war.

Mitchell Palmer, a democrat, used the espionage act after the war (at the end of the war, the act stayed on the books) to round up Americans alleged to be Bolsheviks involved in a series of bombings in the US after World War 1 including one near his residence. (terrorism has a longer history in the US than most acknowledge). In fact, one of the bombings was a hundred pounds of dynamite detonated on Wall St. in front of the offices of J.P. Morgan, eerily thr rough equivalent of the WTC for the 1920's. At one point 10,000 individuals were arrested under the Espionage Act and the subsequent sedition act which essentially made dissent during war time illegal, and arrested and held without charge. Again, the truth is that Guantanomo isn’t all that un-American in a literal sense. fwiw Palmer was a quaker. Richard Nixon was another prominent quaker in American political history. Quakers were historically the one group considered legitimate Religious conscientious objectors to military service.

Palmer’s point man for this was a new wing of the federal government known as the Bureau of Investigation for the Justice Department, now the FBI, and its postwar director J. Edgar Hoover. Hoover began to keep dossiers on suspicious citizens most of whom had no criminal record. In other words, they started an early form of “profiling”. Palmer’s raids were directed largely at immigrants and radicals. In one 1919 roundup 249 individuals were simply put on a boat to Russia without being charged. One of the people on that boat was Emma Goldman. Palmer built his raids around a claim that there would be a Communist uprising in the US on May 1, 1920, kind of an early version of color-coded terror alerts.

Palmer used the notoriety from his Palmer Raids and the Red Scare to run for the democratic nomination in 1920. He lost to James Cox at least partly because May 1, 1920 never materialized. In 1921, Palmer eventually was caught for falsifying evidence and misappropriating government funds.

The Republicans took back the White House in 1920 behind a later scandal ridden governor of Ohio, Warren G. Harding who is mostly remembered for Teapot Dome an oil for national parks scandal. :} a sort of precursor to Halliburton in which US strategic oil reserves in a national park were leased to a private company without a competitive bid in exchange for a bribe.

Should Karl Rove be prosecuted under the Espionage Act, which though trimmed back, still survives in US Code, it would be one of history’s sweetest ironies and Charles Schenck and Elizabeth Baer would at least have to crack a smile.

chancelucky