A Century of Repression offers an unprecedented and
panoramic history of the use of the Espionage Act of 1917 as the
most important yet least understood law threatening freedom of the
press in modern ...American history. It details government use of the
Act to control information about U.S. military and foreign policy
during the two World Wars, the Cold War, and the War on Terror. The
Act has provided cover for the settling of political scores,
illegal break-ins, and prosecutorial misconduct.
This Note joins two previously parallel tracks of scholarship regarding the International Criminal Court (ICC). The first track studies the ICC's authority to prosecute certain crimes that do not ...have links to armed conflict. This power means that the ICC could have jurisdiction over repression of mass civil uprisings of the type occurring in the Arab Spring. The second branch of scholarship concerns "complementarity," or the principle of ICC deference to national prosecutions, and how that practice pressures reform in national judiciaries. This Note argues, at their intersection, that the prosecution of cases outside armed conflict by the ICC further encourages national judicial reform by mobilizing civil society groups. I call this "capacity catalyzing." Because states wish to retain control over national prosecutions that may infringe upon their sovereignty, especially in the prosecution of cases outside armed conflict, these cases create an incentive for states to avert ICC prosecution by trying the cases themselves. I demonstrate this through two recent ICC cases that occurred outside armed conflict. In Kenya in 2007, pro-government forces and criminal organizations perpetrated killings against civilians during post-election violence. In Libya in 2011, anti-government protests snowballed over two weeks before civil war began. The ICC only focused on these crimes in its initial warrant. When crimes against humanity were allegedly committed, armed conflict did not exist in either country. The ICC's involvement in these cases has encouraged national judicial reform.
WarGames Ralph Engelman; Carey Shenkman
A Century of Repression,
10/2022
Book Chapter
The aftermath of the Nixon presidency provided an unprecedented opportunity to address the misdeeds of intelligence and law enforcement agencies and to reconsider the Espionage Act. The revelations ...of Watergate prompted investigations into questionable practices of the major institutions of the national security state, from the FBI to the CIA, after three decades of Cold War. The Espionage Act had been refashioned as part of the McCarran Act, one of the most repressive pieces of legislation in US history. Watergate prompted, in the mid and latter part of the 1970s, a combination of press criticism, congressional scrutiny, and new political
Co-Conspirators Ralph Engelman; Carey Shenkman
A Century of Repression,
10/2022
Book Chapter
The attacks of September 11, 2001, marked the beginning of a so-called War on Terror and opened a new frontier in the history of the Espionage Act. They prompted a major increase in intelligence and ...military operations together with what Jack Goldsmith, who served as legal counsel at the Pentagon and Justice Department during the George W. Bush administration, called a “gigantic expansion of the secrecy system.”¹ The USA PATRIOT Act, signed into law six weeks later, suggested that civil liberties might once again be curtailed during a new form of global warfare. The nation faced an open-ended conflict with
Asylum Ralph Engelman; Carey Shenkman
A Century of Repression,
10/2022
Book Chapter
Expanded use of the Espionage Act was a defining legacy of the Obama administration, which indicted more individuals for unauthorized disclosure to the media than all previous administrations in US ...history combined. This took place in a newly emerging communications and journalism environment shaped by increasing reliance on digital technology by both intelligence agencies and oppositional media. That environment provided the setting for a series of media disclosures of secrets that were unprecedented in the history of journalism, both quantitatively and qualitatively, by virtue of the sheer volume and sensitivity of the material. In 2010, the digital publisher WikiLeaks released
Enter Hoover and Baldwin Ralph Engelman; Carey Shenkman
A Century of Repression,
10/2022
Book Chapter
J. Edgar Hoover and Roger Baldwin were virtual products of the Espionage Act of 1917 and the related repressive measures of Woodrow Wilson’s Justice Department. As young men, their trajectories were ...propelled—albeit in opposite directions—by the civil liberties crisis prompted by the First World War. Hoover would be instrumental in establishing, directing, and putting his indelible stamp on the Federal Bureau of Investigation; Baldwin would do as much for the American Civil Liberties Union. Their thinking began to harden at the very moment Oliver Wendell Holmes Jr. urgently sought to strike a middle ground in protecting First Amendment
The Second World War witnessed a revived and expanded use of the Espionage Act, arrayed against the political right as well as the left and against a powerful mainstream publisher. Yet application of ...the act was plagued by problematic prosecutions and the misgivings of Francis Beverley Biddle, the Roosevelt administration’s attorney general. The Hamlet-like Biddle had final authority over prosecutions under the act during the war. He brought to this task a complex mix of personal qualities and legal perspectives. Scion of a distinguished family, descendant of the nation’s very first attorney general, Biddle attended Groton as a classmate of
Enemy of the People Ralph Engelman; Carey Shenkman
A Century of Repression,
10/2022
Book Chapter
The Trump administration was launched with a declaration of war against the press. On day one, press secretary Sean Spicer angrily disputed reports on the size of the crowd at the inauguration. Trump ...would characterize reporters as “very dishonorable people.”¹ In a tweet on February 17, 2017, he wrote that the press “is not my enemy, it is the enemy of the American People.” In another instance, he would refer to reporters as “scum.”² The president would repeatedly deploy the notion of “fake news” to discredit unwelcome reporting and the fourth estate as an institution. Would this hostile posture vis-à-vis
Following the case against John Nickerson, whose Espionage Act charges were dropped in 1957, the government did not initiate any prosecutions for disclosure of national defense information to the ...press for nearly a decade and a half, spanning the remainder of Eisenhower’s administration and the presidencies of John F. Kennedy and Lyndon Johnson. The act would once again assume center stage during the Nixon administration in response to the most consequential releases of NDI to the media in US history to date, chief among them the Pentagon Papers, released by Daniel Ellsberg, whom Nixon’s National Security Advisor Henry Kissinger would call
Amerasia Ralph Engelman; Carey Shenkman
A Century of Repression,
10/2022
Book Chapter
Would the Espionage Act go into eclipse following the defeat of the Axis powers? After all, the act was a byproduct of the First World War, and the number of prosecutions declined significantly ...during the Second World War. The Roosevelt administration had selectively revived the act as a political weapon, albeit an ineffective one: the prosecution of the Chicago Tribune as well as the Great Sedition Trial of 1944 had collapsed. Francis Biddle subsequently expressed regrets about the use of the Espionage Act during his tenure as wartime attorney general. The ACLU issued an optimistic report in 1945 about future
