The Executive Director for the Rosenberg Children’s Fund and long time activist, Robert Meeropol, made a statement last week urging support and defense of Julian Assange in anticipation of the use of the US Espionage Act against him. Meeropol’s own experiences with the Espionage Act have led him to extend particular criticisms of its use in a constitutional context. It is with this in mind that he voices support for Julian Assange.
I view the Espionage Act of 1917 as a lifelong nemesis. My parents were charged, tried and ultimately executed after being indicted for Conspiracy to Commit Espionage under that act.
The 1917 Act has a notorious history. It originally served to squelch opposition to World War I. It criminalized criticism of the war effort, and sent hundreds of dissenters to jail just for voicing their opinions. It transformed dissent into treason.
Many who attacked the law noted that the framers of the Constitution had specifically limited what constituted treason by writing it into the Constituton: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort” (Article III, section 3). The framers felt this narrow definition was necessary to prevent treason from becoming what some called “the weapon of a political faction.” Furthermore, in their discussions at the Constitutional Convention they agreed that spoken opposition was protected by the First Amendment and could never be considered treason.
It appears obvious that the Espionage Act is unconstitutional because it does exactly what the Constitution prohibits. It is, in other words, an effort to make an end run around the Treason Clause of the Constitution. Not surprisingly, however, as we’ve seen in times of political stress, the Supreme Court upheld its validity in a 5-4 decision. Although later decisions seemed to criticize and limit its scope, the Espionage Act of 1917 has never been declared unconstitutional. To this day, with a few notable exceptions that include my parents’ case, it has been a dormant sword of Damocles, awaiting the right political moment and an authoritarian Supreme Court to spring to life and slash at dissenters.