The Thin Red Line of American Law

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VENCE, France – I have concerns over the trends toward all-knowing supervision (what former Vice President Dick Cheney called “total information awareness”) and full-spectrum dominance. (Reading such phrases drove me back to reading George Orwell’s 1984.)

I now realize that I was unduly optimistic thinking of current activities merely as trends. The future is already here.

If what is already “on the books” is not restrained by political and legal action, they are not trends but a “clear and present danger.”

So what is the law?

I have just received a communication from Major Todd E. Pierce a judge advocate general in the U.S. Army Reserve, in which he reviewed the background of the current laws and court decisions on “communicating with the enemy.” I have mixed some of his opinions with my own research and have asked him to check the text for accuracy.

What we conclude follows:

The legal background of current law on the citizen’s rights vis-à-vis government is complex, and parts of it go back to the 1798 Alien and Sedition acts, but the most significant modern aspects date from the Civil War, and are again being applied in the Military Commissions.

During the Civil War, the Lincoln Administration commissioned  Francis Lieber to produce a code, which Lincoln proclaimed in 1863 as General Order 100, on the treatment of spies, prisoners of war, deserters and dissidents. Actually in large part it was a martial-law regulation, as the first section stated. Regarded as an improvement on the arbitrary orders of military officers, it forbade torture and killing surrendered troops, but it still allowed such draconian measures as firing on unarmed prisoners of war if they provoked their captors. The code was also applied to civilians.

As Major Todd wrote, “disloyal practices were not limited to actual acts of rebellion but could be an offense such as any of the following: unauthorized correspondence with the enemy; mail carrying across the lines; and publicly expressing hostility to the U.S. government or sympathy with the enemy…[and hundreds were] convicted for disloyal speech.” In one well-known case, Edmund J. Ellis, editor of the Boone County [Columbia, Missouri] Standard was convicted for publishing articles  containing “treasonable matter…designed and intended to comfort the enemy.”

Among those whom today we would call “activists” was Ohio Congressman  Clement Vallandigham. He was tried, convicted and exiled from the United States for the offense of “publicly expressing, in violation of General Orders No.  38,” his belief that the Civil war was “wicked, cruel, and unnecessary”  and because he referred to President Lincoln as “King Lincoln.” He also urged negotiations to end the conflict. In summary, this was said to have given comfort to the enemy, the Confederacy.

While the Lieber Code was first and foremost a regulation for martial law that President Lincoln had declared shortly before, it also provided the basis, or set precedents, for subsequent codes. It was the basis for the Hague Regulations of 1907 that were promoted by President Theodore Roosevelt. Unlike Lieber’s Code, those later regulations did not permit summary execution of spies, saboteurs, guerrillas and mercenaries, but required some due process before possible execution.

They were cited in the Nuremburg trials of the Nazi leaders.

In turn, the regulations were revised by the Third and Fourth Geneva Conventions of 1949. The Geneva Conventions clarified that spies, saboteurs, guerrillas and mercenaries were not war criminals per se, as they had previously been inaccurately described by belligerents in a war.

In addition to international conventions, the U.S. Congress passed its own laws. The First World War gave rise to the U.S. Espionage Act of 1917 and the Sedition Act of 1918 (which actually was an amendment to the Espionage Act). Much of these laws are still on the books, codified under Chapter 37, entitled “Espionage and Censorship.”

Under a strict reading of Section 793(e)  of  the Espionage Act,  it is conceivable that the U.S. government could prosecute any publisher, journalist, blogger, or anyone else forwarding a Wikileaks  article containing classified information, because,  even though widely published, that information remains classified.

Following the attack on the World Trade Center in 2001, military commissions were once again established by Executive Order invoking the “law of war.” Congress later ratified this substitution of military authority for civil authority with the Military Commission Acts of 2006 and then 2009, and expanded the authority even further with Section 1021 of the 2012 National Defense Authorization Act.

Drawing on these acts, Military Commission prosecutors argue, moreover, that regardless of where the alleged offense or the capture took place, the perpetrator can be prosecuted in U.S. military tribunals, just as was done under martial law during the American Civil war. But today, the law may be applied globally.

This claim of universal jurisdiction raises  a very real possibility that dissent to U.S. policy by journalists, bloggers or political activists anywhere can be seen as violations of the “U.S. common law of war.” This has the potential for any journalist, even from a close ally or a neutral country, to be subject to U.S. military arrest for any role he or she may have had in “communicating” U.S. classified information. It could apply also to anyone who may read his report and further disseminate it.

Thus,  what Military Commissions prosecutors are now calling the “U.S common law of war“ could now be charged against innumerable editors, commentators, former government officials and peace activists or ordinary readers anywhere in the world.

What “offenses” would make a person liable?

Under the U.S. Uniform Code of Military Justice, a person “aiding the Enemy”  is defined as, “ without proper authority, . . . [one who] gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly…“  Article 99 explains that “‘Enemy’ is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.” And Article 104c(6) specifies that

No unauthorized communication, correspondence, or intercourse with the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused.  The communication, correspondence, or intercourse may be conveyed directly or indirectly.

In the digital age, it is obviously impossible to avoid “communicating” with enemies of the United States if one communicates on the Internet. Nations can no longer cut the telegraph lines to enemy territory to prevent communication, nor can a journalist limit his or her global, digital audience.

Consequently, the “U.S. common law of war” hangs like the sword of Damocles over the exercise of freedom of speech, the press, and of consciences; the “sword” is held in abeyance only at the sufferance of the U.S. President.

As Major Pierce writes,

That this is so was just affirmed in the decision issued by the U.S. Second Circuit Court of Appeals in the Hedges v. Obama lawsuit.  Two plaintiffs were non-American citizens, Birgitta Jonsdottir and Kai Wargalla. They are journalists or members of advocacy organizations who asserted that they fear that their work makes them subject to indefinite detention by the U.S. military under Section 1021 of the 2012 National Defense Authorization Act. In dismissing their claim by concluding that “standing” to bring suit is absent, the Court stated that they could “assume without deciding that Section 1021(b)(2) covers Jonsdottir and Wargalla in light of their stated activities.” That means subject to military detention.

Finally, Colonel Denise Lind, who was described in the July 18, 2013, Guardian newspaper as “sitting as judge and jury over the army private [Bradley Manning] in a courtroom at Fort Meade, Maryland…has declined to throw out the main charge against him  — that he knowingly ‘aided the enemy’ by leaking state secrets that were posted on the Internet.”

As a non-lawyer and merely a historian, I am surprised that nowhere have I seen “the enemy” identified.

Surely, that is germane to the action Manning took.  When “giving comfort to the enemy” was first used,  by Union forces during the Civil War, the enemy was at least clearly defined.

Today, it seems to me vague.

I understand that both Manning and NSA contractor Edward Snowden at least aimed their messages at the American public, but, as pointed out above, the nature of the Internet makes “aiming” impossible.  Thus, almost any communication, including the one you are now reading, could reach “enemies” whoever and wherever they may be.

In short, we have already passed what might be correctly called “the red line” of the freedom-of-speech part of the balance between security and freedom.

Any future American President will inherit a full quiver of arrows in the claw of our national symbol, the Eagle.

If we do not act to limit his freedom of action, history teaches us that no matter who he is or what he professes, he is unlikely to limit his own powers.

Whether or not he is allowed to use them is our decision.

William R. Polk served in the Kennedy Administration, where he was the member of the Policy Planning Council responsible for much of the Islamic world, including Afghanistan. He later became professor of history at the University of Chicago and president of the Adlai Stevenson Institute of International Affairs. His latest book is Understanding Iran.