News Release

“Unconstitutional” Espionage Act May Target WikiLeaks


ConstitutionROBERT MEEROPOL, via Amber Black
In response to reports that the House will be reading aloud the Constitution on Thursday, attorney Meeropol — founder and executive director of the Rosenberg Fund for Children — said today: “I hope that if that happens, Congress will take special note of Article III, Section 3, that defines treason, since rumors have been swirling that the United States is preparing to indict WikiLeaks leader Julian Assange for conspiring to violate the Espionage Act of 1917 — a law that I believe violates the Constitution.

“The modern version of the Espionage Act states among other things that: ‘Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States’ causes the disclosure or publication of this material, could be subject to massive criminal penalties (18 U.S. Code, Chapter 37, Section 793.)

“I view the Espionage Act of 1917 as a lifelong nemesis. My parents, Ethel and Julius Rosenberg, were charged, tried and ultimately executed after being indicted for Conspiracy to Commit Espionage under that Act. And their case was just the highest profile use of the Act which 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 qualified as treason by writing it into the Constitution: ‘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.”

For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167