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The Espionage Act of 1917 Should Never Be Enforced

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Greenwald’s take on the specific charges brought against Edward Snowden is correct:

The US government has charged Edward Snowden with three felonies, including two under the Espionage Act, the 1917 statute enacted to criminalize dissent against World War I. My priority at the moment is working on our next set of stories, so I just want to briefly note a few points about this.

Prior to Barack Obama’s inauguration, there were a grand total of three prosecutions of leakers under the Espionage Act (including the prosecution of Dan Ellsberg by the Nixon DOJ). That’s because the statute is so broad that even the US government has largely refrained from using it. But during the Obama presidency, there are now seven such prosecutions: more than double the number under all prior US presidents combined. How can anyone justify that?

Exactly right. I don’t have any objection to Snowden being charged under more narrow statutes specifically dealing with releasing classified information; as Greenwald says, one element of civil disobedience is accepting the legal penalty. But the Espionage Act of 1917 is some of the worst legislation ever passed by the United States Congress, leading to such outcomes as being given a 10 year jail sentence and stripped of basic rights of citizenship for giving a speech. It has generally been unenforced since the Wilson administration until for very good reason; its overbreadth criminalizes basic political dissent. Its sudden and disgraceful revival under the Obama administration is an excellent illustration of the dangers inherent in keeping dangerous legislation on the books while trusting the executive branch not to start selectively enforcing it; to paraphrase Robert Jackson, the statute lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

It should be repealed, but until then (and, let’s be frank, we’re probably talking about “never”), the Obama administration should return to not enforcing it.

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