Why Do We Have an Espionage Act?
Military justice is to justice as military music is to music. In a civilian court, anyone accused of a crime has the right to trial by a jury of their peers. In the military, a soldier accused of a very serious crime can be tried without any jury at all. In a civilian court, the judge explains the decision as soon as it’s handed down. In the military, the judge just announces the decision and passes sentence.
In Bradley Manning’s case, Judge Denise Lind did say “she would issue findings later that would explain her ruling on each of the charges.” We don’t know how long “later” may be. All we know now is that Judge Lind does not think Manning was aiding the enemy.
Which raises an interesting question: If you take classified documents, but you don’t do it to help some enemy, apparently you haven’t done any harm to the United States. So why is it a crime? Why does it count as “spying” at all? I always thought “spying” meant one side stealing secrets from the other side.
Manning said he did it on behalf of a nation—his own. He did it on behalf of all of us. I haven’t heard of any reason to doubt him. Yet he’s getting applause only at the left end of the political spectrum. Across the rest of the spectrum the responses range from uncertainty to outright condemnation. So the public verdict on Manning, like the judge’s verdict, is decidedly mixed: “Hero to some, traitor to others,” an AP story called him.
You might think he’d get plenty of applause from the mass news media. After all, he provided them with headline material for weeks. But the mass media are hardly showing much appreciation. Some (like that AP headline) are studiously neutral. Others, including high-profile liberal outlets, avoid the substance of the issue by making Manning’s personality the issue. “Bradley Manning had long been plagued by mental health issues,” NPR headlined. The New York Times called him a “loner” and “misfit,” “a teenager bullied for his conflicted sexuality.” That’s one easy way to convict him in the court of public opinion.
Which raises another interesting question: Why is there so little public approval for a man who took immense risks simply to let us all know what our government is doing, with our money, in our name?
To dig into both of the questions I’ve raised, let’s look at the origins of the Espionage Act under which Manning was convicted. It began with Woodrow Wilson.
In his authoritative biography of Wilson, John Milton Cooper reminds us that U.S. entry into World War I aroused a lot of public opposition and protest. “The need to whip up popular fervour behind the war made dissent look dangerous.” The Espionage Act aimed mainly to quell that dissent.
Perhaps Wilson, who initiated a massive PR campaign to swing public opinion to support the war, recognized that it also works the other way around: Making dissent look dangerous is one powerful way to whip up popular fervor. Anything that makes the public feel endangered helps generate support for the government’s efforts to “defend us against all enemies, foreign and domestic.”
When war critics were convicted en masse under the Espionage Act, it served this dual purpose admirably, blunting dissent and fostering a sense of danger that built pro-war sentiment. No doubt the conviction of even one soldier today under the same Act has a somewhat similar effect, which helps to explain why there is so little public support for Bradley Manning.
But the matter is more complicated, because Wilson proposed the Act a full 16 months before the U.S. entered World War I, when he was still promising to keep us out of the war. In his annual message to Congress for 1915 he explained, “I have had in my mind no thought of any immediate or particular danger arising out of our relations with other nations.”
What he did have in mind—what moved him to call for a new anti-spying law—were foreign-born citizens of the U.S. who “have sought to pry into every confidential transaction of the Government” with the goal of moving the public to support one or another of Europe’s warring nations. In other words, they threatened to limit the Wilson administration’s freedom to shape U.S. policy, for war or peace, as it saw fit.
Wilson was obviously pointing a finger mainly at pro-German sympathizers. But he couldn’t say so, because his official stance—and the ostensible reason for proposing an Espionage Act—was that the U.S. had to maintain its neutrality.
As usual, Wilson turned it into a moral issue: These foreign-born citizens who pry into the government’s confidential affairs “are not many, but they are infinitely malignant.” They “have sought to bring the authority and good name of our Government into contempt. ... I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out.”
Maybe it’s just a coincidence that the prosecutor in the Manning trial called the defendant “an anarchist.” Or maybe he had studied Wilson’s speech. In any event, the word “anarchy” gets to the root of the Espionage Act and the issue of “spying” as well as the public reaction to the Manning conviction. .
The premise of the Act is that the government can, indeed must, have “confidential transactions”—secrets, to put it bluntly. If you are an honorable, self-respecting gentleman and a secret is entrusted to you, you keep it safe. You erect inviolable barriers to protect it from prying intruders who would steal it away.
The same goes for an honorable, self-respecting nation: If the government allows its secrets to be stolen, the structures it has so painstakingly erected will be seriously endangered. Whenever structures are weakening, it’s a sign that passion is taking control. Anarchy looms on the horizon. Presidents don’t come out and say this any more, the way Wilson (and his predecessors) did without hesitation.
But the idea remains as a key premise, not just in presidential speeches but throughout American political culture: Life is a struggle of order against unruly passion. The government, simply by its continuing existence, serves as a powerful symbol of enduring order for many (I suspect for most) Americans. Even those who are most critical of “big government” enthusiastically embrace the notion of “Constitutional government”; that is, a government working the way it’s supposed to, according to the prescribed structure. Passion and anarchy are what they fear most; rigid, inviolable control is what they want most.
A government that can keep its secrets and quickly punish snooping secret-snatchers is obviously a government that knows how to set limits, maintain boundaries, keep control, and preserve order.
The secret-snatchers, on the other hand, call into question the authority of the government, its ability to maintain boundaries and preserve order. Thus they tread on the government’s good name and cast it into disrepute. What good is a government that isn’t strong and honorable enough to keep its secrets, as any gentleman would? Such a weak government is always vulnerable to the forces of chaos and anarchy.
That’s the real meaning of “spying.” It’s not necessarily about one nation or group taking secrets from another. It’s about any individual or group breaking through the barriers the government has set up to keep its secrets safe. The essence of “spying” is demonstrating that the government’s structures are not at all inviolable.
That’s what makes espionage a crime. That’s why it has to be punished -- to prove that the government is still in control; that its structures have been repaired; that no one can violate them with impunity.
The Manning trial is a moral drama, played out in the bright media spotlight. It’s supposed to teach us all a simple lesson: Order always triumphs over anarchy in the end. That’s why, in the final scene, Bradley Manning has to be put behind the inviolable walls of a prison cell: to prove that the government can keep its secret-stealers, like its secrets, safely locked up forever.
But in a digital age that can never be the true moral of the story. As Manning, Edward Snowden, Julian Assange—and the NSA—have so clearly reminded us, in a digital age there are no secrets. No matter how hard the government tries, once it digitizes all its secrets there are no walls strong enough to safeguard them forever.
Does that mean we are plunging into anarchy or entering a new age of transparency and participatory democracy? That’s the real question driving the debates about Manning, Snowden, Assange, and all the future “spies” who are bound pierce more holes in the government’s increasingly vulnerable wall of secrecy.
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