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The American Espionage Act Revisited

Howell Hurst Constitutional Issue


 Morro Bay, CA . . . I have been reading several online commentaries about the status of Americans who become Whistle Blowers. Think of Mr. Edward Snowden and the presently jailed government contractor, Ms. Reality Winner. Both have revealed classified government information to the public through the Internet.

This issue is more complex than initially meets the eye. Such respected congressional figures as Adam Schiff, ranking member of the House Intelligence Committee, and Senator Diane Feinstein have criticized such Americans who have leaked classified documents to the Press.

As a former U.S. Army Intelligence officer, I understand their concern about private citizens making public classified material to the public. However, there are two sides to this issue worth carefully exploring.

The opposing viewpoints are:

1: Protecting legitimate government information  from exposure to potential enemies, and:

2: Protecting American citizens from potential government authoritarianism by its own self-protection via over-classifying improper, possibly illegal, Government behavior.

That’s a mouthful. Let me clarify my thinking.

The American Espionage Act is about 100 years old. It was enacted during World War I. Its purpose was primarily to protect Americans from German espionage. It was not created to expose Americans trying to protect other fellow Americans from a potentially authoritarian American government.

Both Snowden and Winner signed documents promising not to expose government classified information. Both, it appears, did so despite their legal promises. That on the surface is a Federal crime.

On the other hand, consider the following theoretical situation: If our government created a classified law making it a crime for Christian American citizens to hold jobs with the government – would you not want to know that that law existed?

It is an unlikely situation, which I use here to make my point, However, it is likely you would want to know that your government had authorized such behavior as appropriate for it to enforce.

The argument Snowden makes is that certain classified Government behaviors do indeed endanger our citizen rights and should, therefore, become known to us.The same may be conceivably found to be the motivation of Ms. Winner.

The question becomes: what is more important?

1. That all classified government behavior should remain secret, even if it destroys certain freedoms guaranteed to us, or:

2. That any Americans discovering improper government behavior are morally obligated by their own judgment to Whistle Blow and expose alleged illegal government violation of our rights?

During World War II’s Nuernherg Trials, Nazi leaders professed that their killing Jews was simply following the acting law of their government. This is not precisely the same as Whistle Blowing, but it speaks to a similar issue: when can a citizen of a country make the personal judgment that our government may be disguising its own authoritarianism by creating illegal laws?

See the difficulty here? The issue becomes: when can American citizens inform their fellow citizens that our government is creating behavior under law to deny us our right to expose serious government misuse of law? In other words, when can we declare that certain government-created behaviors and laws are themselves illegal?

I wonder how many of us have actually read the many items exposed by Snowden or Winner about our government? Do we know whether they believe they exposed illegal U.S. behavior and law?

It is vitally important to note that the original American Espionage Act specifically denies Americans the right to testify in court that they have found illegal U.S. laws denying us our rights. They are simply guilty on the surface of violating the law against exposing classified government behavior. What do you think? Do you think that is proper?

I believe the issue of using a 100-year-old law to deny current Whistle Blowers the legal right to explain in court why they violated a legal promise to government needs serious reevaluation.

Remember, that we citizens are the legitimate original source of all law in the United States. Our elected officials are only our representatives. Before we punish either Snowden or Winner, it seems this issue needs closer visiting: that it is a far deeper subject than their simple condemnation.

Their being legally denied their right to defend in court why they broke their promise may be a denial of a constitutional right. Shouldn’t that issue be explored?

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2 thoughts on “The American Espionage Act Revisited

  1. The GOP is definitely moving toward a Constitutional Convention … whereas the plan on completely dumping and rewriting our Constitution with the definite removal of Birthright Citizen ship on the agenda. At this point, espionage really won’t make a difference.

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