Saturday, October 29, 2011

The Sedition Act of 1918 rises like a zombie from the grave

by decora

In the Espionage Act case against Dr. Stephen Jin-Woo Kim, judge Colleen Kottar-Kotelly has cited two cases from the World War I Red Scare era that she claims involved the Espionage Act of 1917: Frohwerk v United States and Wimmer v United States. She was attempting to show that some of Mr Kim's arguments in favor of Free Speech, and against the Espionage Act, have already been rejected by the court, 90 years ago, and so, today, should also be rejected.

The problem is that neither Frohwerk's nor Wimmer's cases involved the Espionage Act of 1917. They actually involved the Sedition Act of 1918, which was an amendment to the Espionage Act of 1917, which was repealed in 1921 because it was too draconian. The 1918 act actually made it illegal to criticize the government and it's war effort during World War I. Socialist Eugene Debs was thrown in prison under this act for criticizing the war in a speech; he later ran for president from inside his prison cell. Thousands and thousands of other people were arrested in the same period during the Palmer Raids, and several hundred, including Emma Goldman, were deported by a brand new FBI manager named J. Edgar Hoover. [20]

And yet. Here in 2011, our federal judge, Colleen Kottar-Kotelly, doesn't appear to realize this. Now, I am not a lawyer. I'm not even what you would call smart. But it seems like common sense to me that judges should not cite laws that were repealed. Especially not if the case involves sending someone to federal prison for 10 years. Especially especially not if it involves the fundamental principles of civilization, like the freedom of speech and the constitutional safeguards against tyrrany.

Just so you can see what exact alleged crime we are talking about here, let's quote the actual news story that got the CIA so pissed off that it prompted Mr Obama's Department of Justice to accuse Mr Kim of Espionage against the state. According to Scott Shane of the New York Times, it was probably this June 2009 article by James Rosen entitled "NK's Post UN Sanctions Plans, Revealed" June 11, 2009:
"What's more, Pyongyang's next nuclear detonation is but one of four planned actions the Central Intelligence Agency has learned, through sources inside North Korea, that the regime of Kim Jong-Il intends to take" [15]
That's it. Ten years in prison for Dr. Kim, if convicted. Accused enemy of the state. For that. A single telephone conversation with a reporter, that gave him the information to write that snippet of an article. For whom did James Rosen write this article? Fox News. It is somewhat ironic that Fox, home of many opinionated commentators who decry Bradley Manning, the New York Times, and other "leakers", continues to host this material on it's website, continues to employ Mr Rosen, and apparently has not self immolated. After all, if Bradley Manning is charged under the Espionage for allegedly giving the Collateral Murder video to Wikileaks, and some Wikileaks people (the Cambridge Associates)  might be charged with Espionage Conspiracy for helping him, then why can't Fox News be charged for the same thing? They are taking the alleged leaks of Stephen Kim and publishing them. Was Collateral Murder more 'revealing' than this Fox News story? Or is it simply yet-another-gunship video like the ones at ?

Curiouser: Fox News even tried to restrict the amount of leak it published, in Mr. Rosen's story:
"FOX News is withholding some details about the sources and methods by which American intelligence agencies learned of the North's plans so as to avoid compromising sensitive overseas operations"
I'm guessing some people in the CIA and DOJ did not feel Fox News was vigorous enough in it's censorship here. Massive face palm for the pro-state anti-leakers at Fox.

The really strange thing is that Stephen Kim only started talking to reporters so much, because his bosses at the State Department told him to.[19] That's right. The CIA didn't like what the State Department was doing, so it went to the DOJ, and Obama's people said "OK CIA, you win, we will set this State Department guy up for a 10 year bid." What about Dr. Kim's decades of service to the nation? What about his brilliant contributions to the study of one of the most dangerous countries on the planet, North Korea? What about his rights as a citizen; what about his rights as a human being? Throw all those under the bus - - the CIA wanted something done, and Obama's DOJ was apparently there to listen and obey.

What were Kim's lawyers arguing exactly, that judge Kottar-Kotelly objected to? Their argument was partly based on the arguments of the founding fathers on the necessity of taking care when accusing people of Treason. Kim's lawyers asked us to consider, for example, John  Adams, who said
"The men who framed the instruments remembered the crimes that had been perpetrated under the pretense of justice; for the most part they had been traitors themselves, and having risked their necks under the law they feared despotism and arbitrary power more than they feared treason." [0]
Kim's lawyer, Abbe Lowell, also quotes Thomas Jefferson:
"Treason. . . when real, merits the highest punishment. But most codes extend their definitions of treason to acts not really against ones country. They do not distinguish between acts against the government, and acts against the oppressions of the government; the latter are virtues; yet they have furnished more victims to the executioner than the former; because real treasons are rare; oppressions frequent."[0]
Kim's defense argued, if I my interpretation is correct, that Congress intended Treason, which is in the Constitution, to be the main law under which spies and traitors could be prosecuted, and that such prosecutions should be limited only to severe crimes against the security of the country, not anything else. They had all had awful experiences with the British empire and its Monarchical fanatacism with crushing dissent by bloody and violent means. The Espionage Act, therefore, must be carefully considered against the founder's intentions.

Kim's defense argues that by using the Espionage Act against him for such a trivial communication with a reporter, the government is essentially violating the fundamental spirit of the Constitution. In other words, the Espionage Act is unconstitutional. Dr. Kim was passing along a tiny, relatively innocuous piece of information, that has almost 0 chance of harming the security of the nation. It is something that officials do every day - something, in fact, that Obama's own staff did for Bob Woodward so that he could write favorable things about them in his book, "Obama's War". Or, as others have argued, as Obama's staff did when leaking details about the raid on Bin Ladin, so that Obama would look strong and powerful and leaderly. Using the Espionage Act to go after Kim thus makes the Espionage Act into a de-facto way for the government to imprison people arbitrarily based on their speech, something that is against the principles of civilization.

Judge Colleen Kollar-Kotelly was not having any of this.[16] She rejected all of this reasoning and refused to dismiss the Espionage Act count against Kim. She based her decision partly on several old Espionage Act cases, including US v Cramer, from WWII (Nazi sabotage), and US v. Drummond, from the cold war (selling secrets to the Soviets). In both of those cases, the courts specifically said that the Espionage Act was constitutional.

But Kollar-Kotelly did not stop there. She cited two cases from the original era of the Espionage Act; back in 1917, around the time of World War I and the First Red Scare. This is where Frohwerk and Wimmer come in. [16]

Why did she choose those two cases to cite? Because the lawyers in those made the same argument Kim is making; the Constitution, by establishing Treason as a very specific and limited crime, gives guidance to any users of laws such as the Espionage Act.

This is not simply a matter of a slight clerical error by Judge Kottar-Kotelly. This is taking a law that hasn't existed for 90 years, and using it on a modern case. This is also taking a law that is massively anti-free-speech, during war times, back when wars were things that were declared, and had definite beginnings and endings. That law, if it existed today, would make large swaths of public debate, both from the 'right' and the 'left', illegal - it would furthermore always be in force, since in modern times, wars have no definite beginnings or endings, but seem to propagate from one generation to the next, without end.

This becomes more clear if one examines the details of the two cases that Judge Kottar-Kotelly cites; Frohwerk and Wimmer. What, in fact, were they about?

Frohwerk's crime was to put into print the following:
"The first begins by declaring it a monumental and inexcusable mistake to send our soldiers to France, says that it comes no doubt from the great trusts, and later that it appears to be outright murder without serving anything practical; speaks of the unconquerable spirit and undiminished strength of the German nation, and characterizes its own discourse as words of warning to the American people. Then comes a letter from one of the counsel who argued here, stating that the present force is a part of the regular army raised illegally; a matter discussed at length in his voluminous brief, on the ground that before its decision to the contrary the Solicitor General misled this Court as to the law. Later, on August 3, came discussion of the causes of the war, laying it to the administration and saying 'that a few men and corporations might amass unprecedented fortunes we sold our honor, our very soul' with the usual repetition that we went to war to protect the loans of Wall Street. Later, after more similar discourse, comes 'We say therefore, cease firing."[1][2]
"the paper goes on to give a picture, made as moving as the writer was able to make it, of the sufferings of a drafted man, of his then recognizing that his country is not in danger and that he is being sent to a foreign land to fight in a cause that neither he nor any one else knows anything of, and reaching the conviction that this is but a war to protect some rich men's money."[1][2]
Does that clip sound like anyone you know? Does it resemble something you yourself have written? Even some of our conservative friends have objected to Obama's disregard of the War Powers Act in Libya. What about Wimmer's case? He said the following:
"America did not have a chance to win this war; that President Wilson started the war to protect the Wall Street brokers, who had purchased English and French securities; that President Wilson was a friend of the rich man"[3]
Again. How long would it take you to find something like that on Daily Kos? Should people who say this sort of thing go to jail?

Kottar-Kotelly does not simply cite the cases either; she goes into an extended quote by Supreme Court Justice Oliver Wendell Holmes in support of her assertions. The hard thing to understand here is that Oliver Wendell Holmes would later change his mind on the Sedition Act, and start criticizing it partly because of his reading an essay entitled "Freed Speech in Wartime", by legal scholar Zechariah Chafee.

Chafee's arguments went back to English Law, and the right of the people to be free to criticize their government; the notion that the government is the 'peoples servant' makes obsolete the old notions of "slandering the King". Those monarchical slander laws had historically been used not to prevent lies about the King, but to persecute the King's legitimate critics. [17]

Holmes expressed his change of heart in the Abrams v US case, saying:
". . . when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants [250 U.S. 616, 631] making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
Oliver Wendell Holmes wrote this in 1919 --- after his house had been bombed by anarchists earlier in the year. In fact, this bombing was one of a string of bombings of national leaders in 1919, one in which the hands of a woman were blown off. [17] People talk about the 'ticking time bomb'. Well, back in 1919 they had actual shrapnel, and Justice Holmes still stood up for the First Amendment. What would he think of Kottar-Cotelly's using him against free speech in a case like Stephen Kim's, all these years later? What if we could bring him back and ask him?

Modern government prosecutors of Espionage Act cases seem to keep running up against this intractable problem: the Constitution of the United States of America was created by people upset with a tyrannical government for it's use of national security law to destroy dissent and free speech. For most of the history of the United States, there has been no 'Espionage' law, and certainly not one that would criminalize a single conversation about somewhat unsurprising facts, that had no immediate or apparent effect on the security of the nation.

Only through the muscle and influence of the CIA was the case of Kim ever brought to trial. Just as in the Thomas Drake case, only the pressure of an intelligence agency  caused the Department of Justice to spend it's resources and it's people in trying to prosecute him. It is almost as though the Intelligence Community is now directing the actions of our police force, to attack people who talk with journalists as though they are enemies of the state. There are very few periods in American history when this sort of pattern has found any traction, and those periods are typically frowned upon by most people in hindsight. We can include, for example, the aforementioned Palmer Raids, but could also discuss the Red Channels era, the Hollywood Blacklist, etc etc.

The other non-spy Espionage Act cases besides Kim are Thomas Drake, Jeffrey Sterling, Shamai Leibowitz, and of course, Bradley Manning. More cases are waiting in the wings; the "Cambridge Associates" involved in the Wikileaks case are under a Grand Jury investigation under the Espionage Act. Every book or article you have ever read that used phrases like "an unnamed source" or "senior officials" may never have been written, if these prosecutions had existed in the past and been successfull. We would not know about Abu Grahib, or Guantanamo Bay, or CIA's secret "Black Sites", because people like Jane Mayer wouldn't have been able to find sources willing to talk to her - everyone would be too afraid of being put in prison.

There is a reason people make Slippery Slope arguments. Slopes really are slippery. As the years go by, all of the legal precedents set in terrorism cases are being turned around and used against ordinary American citiziens for things like whistleblowing or talking to reporters. Thomas Drake's case is a good example; the prosecution cited numerous terrorism cases in it's support of it's wholly unprecedent actions against him, like the use of the Silent Witness Rule. In Kim's case, Kottar-Kotelly has already cited the 1993 World Trade Center bombing case of Omar Rahman to bolster her arguments against Kim's defense.

Here we have well educated, intelligence, experienced judges who are making mistakes with the basic facts of the Espionage laws. Judge Kollar-Kotelly is relying on legal principles under which people like Glenn Greenwald and Alyona Minkovski would be put in prison.

The Espionage Act cases are not just about the specific information that people gave reporters, nor are they just about specific people who are being persecuted by the government, nor are they just about any single administration or political party. They are about the right, in and of itself, to seek out the truth, and to discuss it with others. The fight for this right goes back a long way, from Aristarchus to Hypatia to Galileo to Sakharov to Ellsberg to Harry Wu. That is the real 'clash of civilizations' going on in the modern world - people who want to hide the truth, versus people who want to shout it from the rooftops. [9][13][21]

The Sedition Act of 1918, if it existed today, would outlaw freedom of speech. Occupy Wall Street & friends would not simply be arrested, get bail, and see charges dropped by the DA "in the interest of justice". Instead, they would get multi-year prison terms and branded "enemies of the state". Even some people from the Tea Party protests might find themselves in the same boat, especially the Ron Paul types who openly criticize the government's war policy.

Then there is the media. All of the talking heads that we love, and all of the talking heads that we love to hate, would be silent. There would be no more big arguments. Bill O'Reilly would be in prison - right behind Jon Stewart, next to Keith Olbermann, Rush Limbaugh, Rachel Maddow,  Sean Hannity, Cenk Uygur, Michael Moore, Neal Boortz, Glenn Greenwald, and just about any other pundit you can think of, who has ever criticized an act of the executive branch (and "in war time" has no meaning, because now we are always at perpetual war). Everything that makes America great, the noise, the screeching, the disagreement, the marches, the protests, the debates, the disagreement, even the simple talking and discussion, ... it would all wash away into one great, gray silence, disturbed only by the soft patterings of government approved propaganda.

It would be the death not only of our culture, but of the human race itself. As Carl Sagan might say, we might descend into a 'demon haunted world', where anyone who tried to question authority was suppressed as enemies of the state. That's what Espionage Law is. It's not just about passing secrets, it's about defining who is considered a "state enemy". And if everything is defined as a secret, then anyone can be declared as a state enemy. It has already happened to people like Thomas Drake, Shamai Leibowitz, Stephen Kim, and others. [22]

In a desert of information, where reporters can't find sources, and government employees can't tell anyone what the government is doing, only ignorance blossoms. As we grow ever more powerful in the weapons we build and the systems of social control we create, this 'combustible mix of ignorance and power' may allow a political or religious charlatans, as Sagan says, to take us over into the abyss, into tyranny, and possibly into a new world war, ending in planetary suicide.

[0] Motion to dismiss, Jan 2011,
[1] Frohwerk v US summary, 1918,
[2] Frohwerk v US, Supreme Court ruling, 1919,
[3] US v Peter Wimmer, 1920, Federal Reporter, Google Books
[5] Abrams v US, 1919, Oliver Wendell Holmes dissent, and the "market" of ideas.
[6] Dissent in the Supreme Court: a chronology By Percival E. Jackson, 1969, Google Books
[7] A Byte Out of History: The Palmer Raids, , 12/28/07
[8] Judge rejects motions to dismiss North Korea leak case, August 26, 2011, Josh Gerstein,
[9] Cosmos, Carl Sagan, Ann Druyan, Steven Soter, et al. 1980.
[11] Abrams v US, Supreme Court decision, Oliver Wendell Holmes, Nov 1919
[12] The Supreme Court, PBS, Abrams v. United States (1919), on Holmes and Chaffee
[13] Rooftop Shouting: see Canary in the Coalmine by Jesselyn Radack for a modern experience of truth-repression
[14] Aristotle, The Politics.
[15] NK's Post UN Sanctions Plans, Revealed June 11, 2009, James Rosen,
[16] Memorandum Opinion and Order,, Aug 24 2011, Colleen Kottar-Kotelly, US District Court, District of Columbia, judge rejects Kim's arguments. via
[17] Avrich, Paul, Sacco and Vanzetti: The Anarchist Background, Princeton University Press, 1991,  via Wikipedia 1919 United States anarchist bombings
[19] U.S. Pressing Its Crackdown Against Leaks By SCOTT SHANE, June 17, 2011, New York Times
[20] Any good book on Hoover, the Palmer Raids, etc.
[21] Andrei Sakharov ( ,  Harry Wu (, Ellsberg (
[22] For coverage of the modern Espionage Act cases see Jesselyn Radack's dailykos blog,Josh Gerstein's "Under the Radar" series at, Steven Aftergood's Secrecy Newsblog at the Federation of American Scientists, etc etc.

Read also: Is Speech Really Free?

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