The Espionage Act and the “Golden Key” to Stop the State

The recent release of the documentary Citizenfour has refocused media attention on Edward Snowden, who last week restated his willingness to return to the U.S. to face the music if permitted a fair and impartial trial.

Of course, this isn’t something he will receive; the state has repeatedly claimed that Snowden has egregiously wounded national security, but cannot say exactly what has been damaged because of … well … national security. They would likely make this claim whether it was the case or not, largely because the real reason they won’t give Snowden a fair trial is that he struck a serious blow to their institutional legitimacy.

As Critical Art Ensemble pointed out in their 1996 classic Electronic Civil Disobedience and Other Unpopular Ideas, “The key indicators of power value [to a government] are the extent to which a location or commodity is defended, and the extent to which trespassers are punished.” In other words, an activist can tell how effective their activism is by how the state reacts to the injury.

There is little that matters more to a state institution than public confidence; as former intelligence director Michael Hayden noted, the “great harm of Snowden’s efforts to date is the erosion of confidence in the ability of the United States to do anything discreetly or keep anything secret … Snowden shows that we have fallen short and that the issue may be more systemic rather than isolated.” No matter the value of the leaks themselves, cracks in the facade must be swiftly and severely punished.

Such is the case with the Department of Justice’s intent to prosecute Snowden under the draconian Espionage Act of 1917. The Act remains a remarkable souvenir of nationalist paranoia during the First World War that managed to hang on into the current century, with apparently little chance of reform. President Woodrow Wilson’s choice of words is indicative of the almost comically authoritarian mindset he was in when he called for the legislation in 1915 to “crush” potential traitors to the state.

He said, “I urge you to enact such laws at the earliest possible moment and feel that in doing so 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. They are not many, but they are infinitely malignant, and the hand of our power should close over them at once.”

Those “infinitely malignant creatures” prosecuted under the Act included anti-interventionist newspaperman Victor L. Berger in 1919 and Nixon-era whistleblower and renowned journalist Daniel Ellsberg in the 1970’s. Wilson’s nationalism-fueled hysterics also included hostility toward Irish, German and Italian-Americans, declaring “any man who carries a hyphen around with him carries a dagger that he is ready to plunge into the vitals of the republic.”

A law born from this sort of paranoid mentality will be ripe for abuse by hysterical bureaucrats in any era. Perhaps the most insidious feature of the Act is that it doesn’t just punish leaks that are damaging to national security. Indeed, it prevents anyone from mounting any defense that might delineate different qualities or categories of leaked information, or claims that some leaked info is not relevant to security interests and might therefore qualify for a lesser charge. It demands that courts treat all leakers with the same fire-spewing nationalist venom that Wilson birthed the Act with.

The fact that the state imposes such massively inflexible punishment for information leaks is a strong indicator that it considers revealing privileged information of any sort to be a far greater threat to its legitimacy than think tanks, newspapers, grassroots advocacy, or the largely symbolic oversight of legislators and secret courts. Such a secretive and vigorously defended beast can only be wounded from within.

And thus a new kind of protester is born: the Electronic Civil Disobedient.

Snowden’s heroism indicates that the leaker-hacktivist is an inversion of the “golden key” that the NSA has aggressively sought from cybersecurity vendors to invade privacy indiscriminately: a failsafe security flaw to be utilized in the event of a serious threat from the state against the civil liberties of the individual.

Regardless of the actual threat posed by a leaker to the public good, the state will fiercely defend the worst of its blatantly unjust and unnecessary bludgeons like the Espionage Act. But its own ferocity could work against it: future Edward Snowdens are beginning to realize they may in fact be tools of today’s Woodrow Wilsons.

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Anarchy and Democracy
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