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Thursday, Sep. 20, 2001 at 1:58 PM
The Espionage Act of 1917, George Bush's desperate need for a war, restrictions on civil rights during wartime, and some suggestions for coping with the new legal and social climate.
It has frequently been said that George Bush wanted a war. His administration couldn't seem to bring us out of a recession, his legitimacy and competence were being questioned long after the "election" which put him into power, and his tax cut had left him in the position of needing to raid the social security fund. In short, George was in trouble.
In addition, the defense contractors really needed a war, and they'd paid George II's campaign good money in the hopes that he would produce one. His attempt to make the spy plane incident into at least a good cold war failed when the Chinese decided to return the plane's crew rather than have a fancy show trial and hand out long prison sentences. Apparently the Chinese don't want a war right now.
George expects that the war will transform him into a war leader with all the perks that entails, including massive propaganda efforts aimed at convincing us that the President is something other than an unarticulate dummy, and a certain unwillingness by his political enemies to leave themselves open to attacks by criticizing his policies or his conduct of the war.
Lastly, and far more important than any of the other issues, war provides an excellent excuse for cutting back on civil liberties of all sorts. The growing anti-globalization movement was starting to make inroads against institutions such as the WTO, NAFTA, the IMF, and the World Bank, which have the corporate right's full support. These institutions have been carefully designed by the business world to reign in liberty, environmentalism, and the terrible tendency of smaller countries to attempt to control their own economies. A good war with full participation (on either side) by the richer members of the above organizations would provide an excellent excuse to repress dissent of all kinds.
The Supreme Court of the United States has ruled time and time again that a citizen should not expect to be granted the same civil liberties in wartime as in peace. Such acceptance of a wartime loss of rights goes back to the founding of our country. To quote a speech by Chief Justice William Rehnquist at the Woodrow Wilson Center:
"The courts, for their part, have largely reserved the decisions favoring civil liberties in
wartime to be handed down after the war was over. To lawyers and judges, this may
seem a thoroughly undesirable state of affairs, but in the greater scheme of things it
may be best for all concerned. The fact that judges are loath to strike down wartime
measures while the war is going on is demonstrated both by our experience in the Civil
War and in World War II. This fact represents something more than some sort of
patriotic hysteria that holds the judiciary in its grip; it has been felt and even embraced
by members of the Supreme Court who have championed civil liberty in peacetime."
For the full text of Rehnquist's speech, go to:
The Supreme Court ruled, for example, that the forced relocation of Japanese during WWII and the Espionage Act of 1917 (which prohibits certain kinds of speech during wartime) were constitutional. Even without the Supreme Court's approval, habeas corpus was suspended during an incident in the Civil War.
The most important of these examples is of course the Espionage Act of 1917, which is still on the books, and which comes into force during wartime. This Act makes it a crime to interfere with recruiting services, (not just the draft) to make false reports in order to interfere with military operations or promote the success of enemies, or to incite disobedience or disloyalty in the armed forces. The Act also makes it a crime to use the mails for such acts. Sent any anti-war letters out lately?
A later amendment to the Espionage Act, the Sedition Act of 1918, made it a crime to obstruct the sale of war bonds, incite the curtailment of production, obstruct the making of loans to or from the United States, or to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States..." The Sedition act was repealed in 1921, but I would not be surprised to see it revived with appropriate attention to new forms of media.
More to the point is the way the act was used. Over fifteen hundred people (many of them Socialists) were charged under the act. Rose Pastor Stokes, who wrote in a letter to the Kansas City Star that "no government which is for the profiteers can also be for the people, and I am for the people while the government is for the profiteers." was tried and sentenced to ten years under the Act. Eugene Debs, a socialist leader and frequent candidate for president was also sentenced to ten years for a speech against the war. In addition, the act was used to suppress socialist magazines such as The Messenger and The Masses and to threaten the NAACP.
Just to put that in perspective, imagine that Howard Zinn, Starhawk, Amy Goodman, Saul Alinsky, and a thousand other key people were serving ten-year prison sentences under the Espionage Act. Imagine that important magazines such as The Nation and The Progressive were suppressed. What would that do to the fights for equal distribution of wealth, for peace, the environment, and civil liberties? Imagine that the corporate right was given ten unopposed years to do what it would. All our nightmares would come true. Are you guilty of Espionage?
The penalties associated with the Espionage Act were increased in the 1940s, and about 160 people were convicted under this act in WWII. In 1944, the application of the act to propaganda was limited by the Supreme Court.
As I reported above, the act is still on the books, though whether it went into force without a formal declaration of war is a little unclear. Would the current Supreme Court buy the idea that we are formally at war? Sadly, I think they would. Would they construe an anti-war protest as "obstruction of recruitment?" or an incitement to disloyalty in the armed forces? My personal opinion is that the current Court would buy such an argument, probably by a 5 to 4 margin. Would the court see an anti-war letter sent by e-mail as being covered by the act? It wouldn't surprise me at all.
For an excellent history of the Espionage Act go to:
What does this mean for the anti-globalization movement? It means, quite simply, that we should expect the worst. Expect George II (or John Ashcroft) to dust off the the Espionage Act, and also to dig through old law books in search of every law, ordinance, statute or executive order which deals with such issues as "giving aid and comfort to the enemy." If the corporate right can't find any current laws which limit free speech as their plans require, expect Congress to pass one as soon as there is an incident or problem to which such a law can sold as the solution.
By "incident or problem" I mean something like an anti-war protest where there is a clash with police, property destruction in the name of peace, a protest outside a military base, a protest that turns violent, or a "terrorist" attack that takes place at the same time as a major protest.
Now I'm assuming that most of the people reading this piece feel the same way I do - that outlawing civil liberties, even during wartime, is a very, very bad idea. And I'm assuming that none of us wants to be the cause of that "incident or problem" which inspires Congress to pass a law against free expression, or Ashcroft to start paging through the law books.
So how should the movement handle this issue? Obviously that's a decision that will have to be made by each individual organization or affinity group, but I would like to suggest some strategies:
FIRST, DON'T PROVIDE THAT "INCIDENT OR PORBLEM."
I'm not saying that you should shut down your activist operation, (and I'm thoroughly disappointed in those who have already done so) but use some good sense. For example, don't blockade the entrance to a military base right now. Don't throw any rocks at the police. If your group gives George II the excuse he needs to clamp down on civil liberties you've screwed things up for thousands of organizations and affinity groups nationwide. They'll make all the right noises and contribute to your defense fund, but they certainly won't love you for it.
Chances are your group needs to chart some kind of path between the two extremes of pretending that nothing has changed, and being so frightened by the new situation that you do nothing. This will probably require that you have a meeting, carefully consider what the new limits, issues, and opportunities are, and find a way to apply that to your life as an activist.
While a far left group's action might provide the Administration with an excuse for restricting civil liberties, keep in mind that there may also be COINTELPRO operations going on right now with the intent of providing the justification for a serious clamp down. WATCH OUT FOR THIS! Use your instincts and beware of anyone who advocates an action that would be violent or in bad taste. It's possible that repression will happen whatever you do, but you certainly don't have to play into their hands.
SECOND, KEEP YOUR ORGANIZATION ALIVE AND WORKING, AND KEEP YOUR PEOPLE FREE.
Obviously this requires some foresight, planning, and consideration. You certainly shouldn't give up the fight, but you should change your strategies and your assessment of what the corporate right can do to oppose you. If your immediate impulse is to keep doing things exactly the way you were before the attacks, stop and reconsider. You're probably making a bad decision.
This may also mean consulting lawyers, keeping a closer eye on usual on Congress and your state legislature, looking at recent Supreme court decisions, checking public opinion polls, etc. I would also suggest a letter writing day for your group. Make it a point to deluge your representatives with letters about your feelings for civil liberties before someone starts pushing a bill that will take them away.
THIRD, LOOK FOR WAYS TO REFRAME THE MISSION OF YOUR OFGANIZATION.
If you're an organization whose main mission is to work for peace, you've obviously got a problem. Not only are you vulnerable to all the legalisms which might be used to attack someone who "incites disobedience or disloyalty in the armed forces," or "interferes with recruitment" or "gives aid and comfort to the enemy" but given the unpopularity of current peace efforts, the propaganda machine of the corporate right will try to connect you with any cause which they wish to render unpopular in order to attack that second cause. How you resolve this issue is of course up to you, but I would strongly suggest compartmentalizing anti-war activities and other sorts of activism. You can work on both issues, but don't (for example) carry an anti-war sign at an anti-globalization march.
The best move at this point may well be to engage in "education" rather than "activism." One of the many problems with agitating against this war is that no groundwork has been laid for a public understanding of the troubles besetting the Afghani people. Getting a good piece on the recent history of Afghanistan published in your local paper or putting up a web site about that country and what's been happening there could do more for changing public opinion than a hundred signs. Also, Afghanistan is a country that has been chewing up invaders and spitting out their bloody remains for centuries. No one in their right mind really wants to fight there. This issue can be exploited
Click here for my analysis of war in Afghanistan and some suggestions on how to use it in an anti-war campaign.
My own opinion is that the cause of peace (or at least the cause of less deaths) might be better served by a more pessimistic understanding of what's possible given the current situation. I just don't think that the American people are ready to be talked out of war right now. However, I do think that they could be talked into a limited war with limited objectives. Accomplishing this alone would save thousands if not millions of lives. Naturally, if the Afghanis decide to turn Usama bin Laden and his followers over to the United States, the chances of talking America out of any kind of war increase exponentially.
If you have the good luck to be part of a group opposed to globalization, you've got half a chance. Proclaim that the mistreatment of other economies is the root cause of terrorism and that you're protesting at the G-8 meeting (or whatever) on that basis. Not everyone will buy it, but I think it's a convincing argument.
Don't mention your feelings about this war, but make a good pitch for a "just peace" and imply that if the problem of distribution of wealth is not solved appropriately, that we'll be fighting this war over and over again. Once again, it's a convincing argument. If the anti-globalization movement is not around to agitate on this issue when the war is over, defeated nations will probably see their economies raped, pillaged, and looted in ways that make what's happening today look almost benign by comparison.
In some ways, the anti-globalization issue is the most important one to keep alive. Let the corporate right win the globalization battle and it will be constant war on ordinary people everywhere, forever.
This cloud does have a silver lining. As I implied above, this isn't the war George II wanted, and that is something we can take advantage of. Afghanistan is a poor country full of starving people who are the victims of twenty years of war and oppression, and educating people about this will certainly provoke sympathy. Also, no sane military man wants to invade Afghanistan, and this fact lends itself well to opposing a war in that country.
Keep this in mind as well. Terrorism is a hazardous war for the administration to fight. People have written about the disadvantage a war on terrorism holds for the left, but what about the advantages? Once people calm down, they can be educated about the causes of terrorism and perhaps inspired to see that post war recovery efforts in defeated countries are handled appropriately instead of corporately. Perhaps they can also be educated about the dangers of making war on a word rather than a country. After all, if dissent can be made into espionage, as it was in 1917, it can also be made into terrorism.
Also note that we're starting to see some weird over-reaches that about who is and isn't a terrorist, and what acts actually constitutes terrorism. These can be turned against the people who make them. For example, consider the bizarre language in Governer Pataki's New York State anti-terrorism bill, and be on the look out for other stupid stuff (which you can exploit) coming from big media and the government.
Let's face it, the next few years will be hard. But if we start thinking about the issues right now, change our strategies as appropriate, and stay one step ahead of George and his pals, we've got a chance to keep advocating even when fighting gets heavy. If we act like nothing's changed, we'll probably be crushed by the cops and emerge from jail as slaves to some huge corporation.
That's my rant for today. Keep fighting the good fight.
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