traitors, spies and military tribunals

7/29/2019 Traitors, Spies and Military Tribunals

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Traitors, Spies and Military TribunalsThe Assault on Civil liberties During World War /ERICCHESTER wm^ ^mmmm^ ^ mmmm^ ^mmm^ ^ mm^ ^mmm

ON DECEMBER 31 , 2011 , President BarackObam a s i gned i n t o law the N a t i o n a lDefense Authorizat ion Act (NDAA) of 2 0 1 1 .Tucke d into th e bill providing the m ilitary withhundreds ofbillions ofdollars were provisionsauthorizing the President to indefinitely detainin military jails those charged with providing"substantial support" to al-Q aida or the Taliban,and to prosecute these individuals in militarytribunals. The se provisions could easily be usedagainst those w ho raised funds for an orga niza-tion controlled by Islamic fundamentalists withties to al-Qaida. In addition, the wording is soimprecise that it could lead to the detention ofanyone w ho helped to organize a dem onstration,or hosted a website, that promoted the viewsof Islamic fiandamentalism as propounded byal-Qaida.

In s igning N D A A (2011 ), Ob am a issueda finding stating that he would not detain anyU.S. citizen in a military prison as authorizedby the bill. In fact, his finding is not legallybinding, and the statute remains on the booksas enacted by Con gress. Fur therm ore, any futurepresiden t would no t be bound morally or legallyto the finding, and would be free to utilize itsprovisions.

The bill denies U.S. citizens flindamental

ERIC CHESTER stood as the Socialist Party's vice-pres-idential candidate in 1996. He taught economics atthe University of Massachusetts-Boston. His fuhlishedworks include Covert Network (1995) and Rag-Tags,Scum, Riff-Raffand Com mies (2001), He is airrentlycompleting a book on the IWW during its heyday,

rights guaranteed by the Constitution's Bill ofRights . The r ight to atrial by a jury of one'speers in a court of law that adheres todue pro-cess is an essential prerequisite to a genuinelydemocratic society. In enacting N D A A (201 1),Congress and the President have taken asig-nificant step toward military rule.

This isnot the first time that the questionof military tribunals has been raised. Indeed,the struggle to prevent military courts fromclaiming jurisdiction over civilians has beenrepeatedly fought since the United States wasfirst founded . Th e issue has often becom e acuteduring times of war, when those in power areeager to sacrifice basic rights to the expedi-ency of the moment . A critical episode in thiscontinuing struggle came during World War I,when the federal government initiated asus-tained campaign to quash dissent. As a result,fundam ental civil liberties were tramp led upo nin the rush to jail radicals, pacifists, and milita nttrade un ion activists.

In the midst of this wartime hysteria, keym em bers of Congress , wi th the suppor t ofmilitary intell igence, pushed hard to expandthe jurisdiction of military tribunals to includeopp onen ts of the war. Th is effort triggered anintense debate that foreshadowed the currentcon trove rs y conce rn i ng N D A A (20 11 ) . Inthe end. President Woodrow Wilson blockedthe move, and diss iden t s con t inued to beprosecuted within the civilian judicial system,whe re the y were accorded a jury trial. A closeexam ination of this debate can help us to bet-ter unders tand the dangers inherent in N D A A


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T r a i t o r s a n d S i

T h e B r i ti sh E x p e r ie n c eS H O RT LY A F TE R BRITA IN 'S D ECLA RA TIO N o fwar on Germany on August 4,1914, the Lib-eral government of Herbert Asquith moved toerect an elaborate legal apparatus to crush anyopposition. Th re e days later, on August 7,19 14,the government introduced the Defence of theRealm A ct. In its initial version, the A ct banne dany action hampering the war effort at docks

IWW leaders remained inLeavenworth Federal Penitentiary,a brutally rigorous maximum

security prison, for more than fouryears after the war had ended.Many of them never recoveredfrom the harsh treatment they

received as prisoners.

and railways, and authorized the governmentto issue regulations to ensure this goal. Thoseaccused of violating the statute or the regula-tions would be tried by courts-martial, that ismilitary tribunals.

Th ree weeks later, the governm ent re turnedwith a revised version of the Act. The revisedstatute extended the zones in which Britishcitizens could be tried before a military tribu-nal to include any area used for the "trainingor concentration" of British troops. T he Arm yand Navy high com mand then declared that thecoastal areas of southern and western England,as well as the entire coast of Scotland and Ire-land, were covered by the revised sta tute.The first two versions of the Defence of

vember, 1914, the Asquith governm ent re turneto Parliament with a new version, and founitself emb roiled in a volatile debate. T hi s timanyone, including B ritish citizens, could be trieby a military tribu nal for allegedly violating thstatute, or the regulations issued to enforce ianywhere within the United Kingdom. F urthermo re, the d eath pe nalty could be levied againsthose who were found to be acting "with thintent of assisting the enemy."

Debate on this provision in the House oLords was extensive and heated. Peers werdismayed with the willingness of the Liberagov ernm ent to nullify a key mainstay of B ritisliberty going back to the Magna Carta of th13 * century. Richard Haldane, as Lord Chancellor and government spokesperson, admittetha t "the princ iple of trial before a jury is principle wh ich is very deep" in British jurisprudence, "and one w hich w e should all respect."In the course of this debate, the governmenagreed to come back to Parliament with a revised version of the statu te. In accordance witthis agreement, the government proposed thfourth and final version of the Defence of thRealm Act, which was approved by P arliamenin March, 1915. T he revised Ac t perm itted B ritish citizens charged with violating the statutor the regulations to choose which court systemwould be utilized to try them. Needless to saycivilians opted to be tried in a civilian courOne clause of the 1915 legislation gave thgovernm ent an escape valve. An official proclama tion could manda te courts-ma rtial for B ritiscitizens violating the regulations "in the evenof invasion or for special military emergenciearising out of the present w ar."T his section wanever invoked in Britain (England, Scotland anW ales), but such a proclama tion was issued foall of Ireland in the imm ediate afterma th of thEaster Uprising of April , 1916.

T h e regu lations issued by fiat to enforce thDefence of the Realm A ct proved to be as dan


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the jurisdiction of military tribunals, the m ilitarystill exercised tremendous power over civilians.T he regulations permitted military comm andersto ban anyone from a specified area, forcing theindividual to move to another pa rt of the Un itedKingdom. Another regulation authorized them ihta ry to raid any house o r office to search forprinted material that could "cause disaffection"from the war effort. Printing presses seized bythe mihtary during a raid could be destroyedto ensure that they were not used to produceseditious hterature.

The se and other regulations gave the m ih-tary immen se powers to police dissidents w ithinthe Uni ted Kingdom. In the Uni ted States ,President Woodrow Wilson was unwill ing togrant the mili tary such sweeping authority.Instead, the federal government relied on oneregulation. Regulation 27. In addition to ban-ning "false reports," or "statements likely tocause disaffection," it also proh ibited statem entsor reports "hkely to prejudice the recruiting,training [and] discipline" of the U.S. military.This wording provided the basis for the Espio-nage Act of June 1917.

W arren and th e Espionage ActD U R I N G T H E F IR S T M O N T H S following th e deci-sion to enter the war, U.S. authorities relied onthe British experience in developing a strategyto suppress dissent. President Wilson, throughhis confidante Edw ard H ouse , turned to W il-l iam W isem an for advice. W isem an headedthe U.S. operations of the Secret IntelligenceService, or M I6 , the British equivalent of theCentral InteUigence Agency, but he also culti-vated a close working relationship with House.

In January 1917, Wiseman began "workingwith federal authorities" on legal strategies tocounter and disrupt the anti-war opposition. Indoing so, he not only gained access to detailedinformation on the activities of U.S. intelligenceagencies, but he was also able "to some extent

T r a i t o r s a n d S p i e sauthorities" were "at loggerheads, and withoutproper cooperation." He therefore "drafted areport showing [the] necessity for cooperationand much fiiUer powers."

According to Wiseman, this report con-v inced the admin is t ra t ion to fo rmula te a"Conspiracies Bill" for C ongressiona l approval.W isem an also provided the De partm ent ofJus-tice with a comp lete copy of the D efence of theRealm A ct, including the man y regulations thathad been issued to enforce it. He reported to hissuperiors that U.S. authorities had then "basedtheir bill on it." W ise m an w as not enga ging inidle boasting.Charles Warren was the Assistant A ttorneyGeneral assigned to draft the proposed legisla-t ion. A Harvard graduate. W arren had beeninvolved in Democratic Party politics beforejoining the Justice D epa rtm ent in 1914, wherehe specialized in enforcing the Neutrality Actduring the first years of the war. In October,1917, W arren sent a copy of the Espionage Actas approved by Congress that June to RufiisIsaacs, Lo rd Rea ding, w ho ha d recently visitedthe United States as a special emissary of theBri t ish government . Warren pointed to theEspionage Act as a key indication of how "farthis country has gone in the direction of yourDefence of the Realm Act."

Title I, Section 3 of the Espionage Actprovided the federal government with the legalground s to incarcerate hun dreds of anti-war ac-tivists and radical union mih tants du ring W orldW ar I. Th ose convicted of violating this sectioncould be imprisoned for up to twenty years. Itsprovisions closely followed key sections of theDefence of the Realm Act.

T he mo st frequentiy used provision ofT itie1, Section 3 of the E spionage A ct provided thatanyone who "shall willfully obstruct the recruit-ing or enlistm ent service" of the a rmed servicesduring wartime would be in violation of thelaw. In 1918, dozens of Industrial Workers of


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T r a i t o r s a n d S p i e sfederal prisons up on b eing convicted of violatingthis provision, in large part because the union'snewspap er had printe d editorials criticizing thedraft.

T h e actions of the federal govern me nt d ur-ing W orld W ar I represented the m ost sustainedassault on civil liberties in the history of theUnited States. T he I W W was left in shambles,and the Socialist Party was a shell of the massparty it had once been. Nevertheless, prom inen tfigures such as former president Teddy Roos-evelt insisted that the Wilson Administrationwas too lenient, and tha t harsher measures wereneeded. This position found infiuential support-ers within the federal government as well.

TraitorsA L T H O U G H C H A R L E S W A R R E N had draftedthe Espionage Act, and init ially oversaw itsenforcem ent, he was convinced tha t it providedan inade quate basis for the total suppression ofradical dissidents and anti-war activists. Warrenbelieved that it was essential to move the trialsof dissidents from the civilian judic ial system tomilitary tribunals, which would be authorizedto impose the death pen alty on those convicted.The President disagreed, bel ieving that theEspionage Act provided a sufficient basis toeffectively quash any organized opposition tothe war, and he therefore opposed the drive toexpand the jurisdiction of military tribunals.

Warren vehemently objected to the Presi-dent's decision on this critical issue, so he con-tinued to press for more drastic measures. Hewas convinced that two key fiaws in the existingsystem would underm ine govern men t efforts torepress dissidents. Warren's first objection wasthat some of those convicted of violating the E s-pionage A ct were released on bau pe nd ing finaldispo sition of their legal appeals. In fact, federaldistrict judges usually set such high bail termsthat the great majority of defendants chargedwith violat ing the Espionage Act remained

Euge ne D ebs and Bill Hayw ood, were releasedon bail and remained free for months beforetheir verdicts were upheld. Cases such as theseincensed Warren.

In add ition. W arre n was convinced tha tactivists would not be deterred by the lengthyprison sentences being imposed on those con-victed under the Espionage Act . Diss identswould risk prison sentences convinced that theywould be granted presidential pardons once thewar ended. In the end, most pohtical prison-ers did not serve their fuU sentences, althoughI W W leaders remained in Leavenworth FederaPenitentiary, a brutally rigorous maxim um secu-rity prison, for m ore th an four years after th e warhad en ded. M an y of them never recovered fromthe harsh treatment they received as prisoners

In Warren's view, only the death penaltycould deter radicals from engaging in activitiesthat might obstruct the war effort. Obviouslythere could be no presidential pardon for thoseexecuted. Furthermore, a few executions wouldprovide a signal warning to everyone who wasthinking of joining an anti-war group.

In the spring of 1 9 1 7 , Warren developed adouble-edged legal strategy to meet these per-ceived failings in the Espionage Act. He beganby arguing that those who actively opposedthe war, organized militant strikes, or engagedin sabotage were guilty of treason and shouldbe executed. His original brief supporting thisargument does not seem to be extant, but othersources, includin g a law review article, providethe essential points.

Charges of treason were frequently hurledat anyone who opposed the war. Sensationalizedarticles in the tabloid press spuriously claimedthat dissidents were funded by the Germangovernm ent. The se argume nts were even madeby members of the Cab inet. Postmaster Gene raAlbert Burleson categorized the anti-war pressas "traitorous," thus defending his decision tobar socialist newspapers from the mails. Nev


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and, potentially, executed on that basis.Treason is the only crime specified in the

Co nsti tution, with the wording derived from aBrit ish parl iam entary statute of 135 1. ArticleI I I , Section 3 of the United States Consti tu-tion specifies that treason is either the "levyingof war" against the federal government, that isarmed revolt, or "adhering to their ene mies, giv-ing them aid and comfort." The authors of theConstitution were concerned that this sectioncould be misused, and thus they specified thata person could only be convicted of treason onthe basis of two witnesses who would testifythat the defendant committed an "overt act" tofurther the conspiratorial plot.

Throughout U . S . history, very few individu -als have been convicted of treason. Indeed, thefederal courts have narrowly limited the scopeof the actions that can be defined as providing"aid and comfort" to an enemy in time of war.Akeady in 1806, Chief Justice John Marshallin wr i t ing a p reva i l ing op in ion acqu i t t ingAaron Burr had held that treason "should notbe extended by construction to doubtful cases,"and th at, instead, "crimes no t clearly within theconstitutional definition should receive suchpunishment a s the leg islature in its vsasdom m ayprovide."

The Esp ionage Act , which Warren haddrafted, had been enacted to do exactiy this.Nevertheless, Warren sought to vastly expandthe scope of the treason charge to cover a widerange of activities including sabotage and orga-nized opposition to the war and the draft.

The charge of treason had been devised todeter the citizens of a combatant nation fromproviding assistance to the government of anenemy nation. D uri ng the period from the startof W orld W ar I in August 1914 to the U . S . entryinto the war thirty mon ths later, Ge rm an agentscarried on an extensive program of sabotagedirected at facilities in the United States thatwere produ cing goods for the British war effort.

T r a i t o i s a n d S p i e s

and to incite strikes in factories pro ducin g m u-nitions for the British. After the United Statesdeclared war on Ge rma ny in Ap ril 1917, U.S.author ities, with the aid of British intelligence,quickly rounded up and detained most of thosesuspected of cooperating with G erm an agents.

Warren 's bel ief that the Espionage Actwas inadequate did not stem from his fear ofthe activities of German agents, or those whocooperated with them. Instead, he focused onthose on anti-war activists and radicals. In thesumm er of 1 9 1 7 , the federal government felt es-pecially threatene d by the Ind ustrial W orkers ofthe Wor ld, which h ad organized m ilitant strikesin the timber camps of the Pacific Northwestand the cop per mine s of the We st. In a letter toAttorney General Tho ma s Gregory on August7 , 1917, W arren denounced the I W W str ikesas "treasonable."

T he federal governm ent viewed the I W Was a significant threat because it had shown itsability to coordinate effective strikes involvingtens of thousand s of workers. S till, prosecutionsinitiated on this basis would have representeda political disaster. Instead, the Department ofJustice pointed to acts of violence that causedproperty damage to recalcitrant corporations.Over the years, the I W W had been vocal in itssupport for sabotage as a valid tac tic in the classstruggle, although it had been generally vaguein specifically defining this tactic. Once theUn ited States entered the war, and the I W Wbecame a target of government repression, theunion publicly disavowed the use of sabotage.Nevertheless, there is credible evidence thatWobblies committed acts of vandalism againststrikebreakers during the t imber strike thatspread throughout the Pacific Northwest inthe summer of 1917, and that union leaderssanctioned these tactics.

Thus, the broader issues became focusedon the narrower question as to whether thosealleged to have com m itted acts of sabotage could


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T r a i t o r s a n d S p i e sless he could counter the guideUnes set forwardby MarshaU in the Burr case. He therefore ar-gued tha t the destruction of property being used"for the successfiil prosecution of the war mayequaUy constitute treason, and giving aid andcomfort to the enemy." Such actions were cov-ered wh en "performed with the inte nt" of aidingth e enemy. W arren insisted that in determining

Congress can authorize themilitary to indefinitely detain

anyone, including a U.S. citizen,who provides "substantial

support" to al-Quaida and theTaliban.

intent a defendant "must be held to intend thedirect, natural, and reasonable consequences ofhis own act.

W arren w as mak ing use of a legal standardof proof that aUowed the government to gainconvictions on the basis of a minimum of evi-dence. T he "bad tendency" argum ent is rootedin British common law in relation to Ubel. Aperson can be prosecuted for statements utteredor printed that have the "tendency" to encour-age Usteners or readers to violate the law. TheU.S. Supreme Court had ruled that the FirstAmendment did not protect s tatements thatviolated this rule.

Warren was stretching the net cast by the"bad tendency" argument even further thanpreviously. He was proposing that defendantsbe convicted of treason, that is of assisting theenemy, because their actions objectively aidedthe G erm an cause. Th us, the prosecution didnot have to prove that defendants intended to

m en t could estabUsh the "natural and reasonableconsequences" of these actions. This was anargume nt simUar to that used by the gov ernmenin prosecuting oppone nts of the war under theEspionage Act, but it required a further jumpin the argument to infer a Unk between thosecharged with treason and the German governm en t on the basis of the potentia l results of theiactions, even when no evidence of such a Unkhad been uncovered.

W ar ren ha d a difficult time finding anypreced ents for such a vast expansion of thescope of the charge of treason in U.S. case lawInstead, he turned once again to the Brit ishlegal precedent. SpecificaUy, he cited a ruUng byRufus Isaacs, wh o had presided as Lo rd Ch ieJustice over the trial of Roger Casement, anIrish nationalist involved in the Ea ster U prisingin DubUn in April 1916. Isaacs had held thaany British subject who commits an act "whichstrengthens or tends to strengthen the enemieof the King in the act of the war against theBang" is thereby giving "aid and comfort" tothe enemy, and is, therefore, guilty of treasonCasement had been executed on the basis othis ruUng. T h e wo rding provides such swe eping grounds for prosecution that virtuaUy anopposition to the war, or any strike, could bconsidered an act of treason.

Attorney General Gregory was preparedto expand the range of the treason charge tocover sabotage, holding that "the destructionof human Ufe or property for the purpose oaiding the enem y" constituted a treasonous actNevertheless, the Attorney General rejectedW arren's legal strategy, as it related to the I W Wand sabotage. H e was convinced th at the treasonstatute faUed to provide an effective basis fo"dealing with the wiUfiil destruction or injurof war suppUes or war industries." Treason wasuch a high crime, and the penalty for its commission so severe," tha t "the hoste inte nt" h adto be "clearly demonstrated." This represente


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T r a i t o r s a n d S p i e sreasonable consequences" of an allegedly trea-sonous act.

Warren's proposal to levy the charge oftreason against I W W leaders and anti-w aractivists never moved beyond the Departmentof Just ice . T he Ad ministra t ion believed thatthe death penalty was not needed, and wouldbe unnecessarily provocative. In spite of War-ren 's object ions, dissidents continued to beprosecuted under the E spionage Act througho utthe last months of the war.

M artial LawI N C O N J U N C T I O N W I T H H I S P L A N to widen thescope of the charge of treason. W arren alsoproposed that Congress impose mart ia l lawthroug hou t the United States. Th ose accusedof treason would therefore be tried by militarytribunals, and could be executed upon convic-tion. In a military court-martial, a defendanthas far fewer rights, and appeals to a higherauthority are far quicker. Furtherm ore, the jud gein a military tribunal is not ind epen dent of theprosecution, bu t rather is an officer acting u nd erorders from the same com ma ndin g officers wh oare directing the government's case.

M artia l law nullified the fundam ental rightof habeas corpus, that is a defendant's right torequest a review in civil court, before a civihanjudge, where the prosecution has to providecredible proof that the accused has committedthe crimes specified. Article I, Section 9 of theCon stitution gu aranteed the right to seek a writof habeas corpus, and guaranteed that Con gresscould only suspend this basic right "w hen in caseof rebellion or invasion, the public safety mayrequire it."

A declaration of martial law, backed up byCon gress, wou ld have grante d the arm ed forcesenormous powers, while depriving citizens offundamental rights. Fortunately, both Atto rneyGeneral Gregory and President Wilson werewary of moving in this direction, so Gregory

within that context.Proctor concluded th at the prevailing con-

ditions in 1917 made it "impossible" to declaremartia l law in any zone within the UnitedStates, and, in addition, neither the Presidentnor Congress had the authority to suspend theright of habeas corpus. Alth oug h the U nitedStates was then engaged in fighting a total,global war, the coun try itself was peaceful, w ith"neither invasion, nor thr eat of invasion, nor anyinterference with the administration of law bythe courts." Furthe rmo re, martial law could notbe imposed, and those charged with treason du r-ing time of war still maintained their right to ajudicial review of their detention by seeking awrit of habeas corpus in a federal district co urt.

Proctor w a s relying on a key Supreme Cou rtdecision in interpreting the Con stitution on thisissue. D uri ng the C ivil W ar, the m ilitary com -mander of Union troops stationed in Indianadeclared martial law, although the state wasnot a battle zone. In 1864, Lambden Milligenand four others were charged with plotting anarmed attack on a prisoner of war camp hold-ing Con federate soldiers. AH five were tried bya mihtary tribunal and sentenced to de ath. Th isverdict became a test case for the the limits ofthe military judicial system in the midst of theCivil War.

In 1866, the U.S. Supreme Court over-turned th e jud gm ent of the military tribunalby a unanimous vote. A majority of the Courtused the opportunity to issue a sweeping deci-sion upholding the right of civilians to be triedin a civilian court even during a wartime emer-gency. Military tribunals established in areas"in which the federal courts were open" and in"unob structed exercise" of their operations "hadno jurisdiction" to try civilians from states th athad not joined the rebellion for "any criminaloffense."

T h e majority decision we nt on to explicitlyreject a key prosecution argument. Attorneys


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T r a i t o r s a n d S p i e sStates since the entire country was mobihzedfor the war effort, and saboteurs were ope ratingbehind the battie hnes. In this context, everystate had beco me "in a military sense" a "theaterof mihtary operations." T he majority opinionrejected this position even though the judgesrecognized that Indiana had been threatenedwith an invasion in the recent past, and mightbe in the fiiture. Nevertheless, m artial law couldbe imposed only wh en C onfederate troops actu-ally invaded, or when there was a credible andimmediate threat of invasion. Until then, theflindamental right to a trial by jury rema inedintact and irrevocable.The logical implication of the Mill igandecision, as Proctor correctly understood, wasthat martial law could not be declared in anyregion of the United States during World WarI, and that federal courts therefore maintainedtheir exclusive jurisdiction over civilians chargedwith any wart ime crime, including t reason.Warren at tempted to ci rcumvent this argu-ment by insist ing that World War I posed aset of challenges to government authority thatwere significantly greater than those posed bythe Civil War. Indeed, "under the new orga-nization of warfare introduced by Germany,"which involved "enlisting the services of hostsof civihans" to "cause all the injury possible byund erm ining propaganda" or com mitting acts ofsabotage, "the question arises wh ether the wh olecountry has not become a part of the zone ofoperations of the war."

In a total w a r . W arren argued, the economyof the entire country is mobilized to produce themunitions, armaments, and suppHes requiredto supply an army of miUions of soldiers. Anyactivities that might restrict output, whetherby organizing strikes or distributing hteraturecriticizing the government, provided a directthreat to the war effort and must be stopped.The imposition of martial law, followed by theexecution of targeted dissidents, would crush

Supporters of the mili tary tribunal sections of NDAA (2011) have advanced a similaargument. During a Senate debate on the bilSenator C arl Levin, chair of the Arm ed ServiceCom mit tee and a Michigan D emo cra t whacted as one of the key sponsors of NDAAinsisted that the entire United States had "beema de part of the battiefield with out any do ubtIndeed , "on September 1 1 , the war was brou ghhere by al-Q aida."

This argument , as fo rmula ted by bo tW arren and L evin, is no t persuasive. T h e Civwar was also a total war, albeit no t a global oneFur thermore , the Confedera tes engaged isabotage througho ut the Nor th, and encourage"peace De mo crats" to press President Lincoln tinitiate talks leading to a negotiated settiem enNev ertheless, the MLUigan case had uphe ld thbasic constitutional righ t to a trial by jury in civihan court operating in accordance with thdue process o f law, and this righ t prevailed evein the midst of World War I.

Gre gory was no t swayed by W arren's brieand Proctor's memorandum continued to sethe parameters for federal policy throughouW orld War I . W arren responded by at tem pting to circumvent the D epa rtm ent ofJustice bwinning the support of key members of Congress. In January, 1918, Senator R obe rt L ath amOwen, an Oklahoma Democrat, an ally of thAdministration and a zealous supporter of thwar effort, wrote to the President suggestinthat Attorney General Gregory draft " a law authorizin g th e trial by cou rt-m artial" of "citizenof the United States detected in conspiracieinvolving treason."

Woodrow Wilson firmly rejected Owensuggestion as "a very serious mistake." Such move w ould u nde rcut the civilian judicial systemby giving "the im pression of wea kness," therebsending an implicit message of no confidencin the courts. Although Wilson's definitive rejection of a proposal to expand the jurisdictio


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would m aintain a similar position wh en W arrenadvanced a new rationale for bringing anti-waractivists before military courts-martial.

SpiesB Y A U G U S T 1917, Warren had abandoned hiseffort to greatly widen the range of actionscovered by the charge of treason for a newlegal theory. B ypassing the touch y questions oftreason and martial law. Warren argued insteadthat those who opposed the war, or commit tedacts of sabotage, were engaging in espionage. Inhis view, "owing to cha nges in the conditions ofmodern warfare," specifically the efforts madeb y Ge rman y "to attack and injure the successfulprosecution of the war" by a variety of covertme ans, anyone g uilty of violating any section ofthe Espionage Act in wartime would be triedby a military tribunal as a spy and could besentenced to death upon conviction.

In drafting the Espionage A ct, W arren ha dalready equated opposition to the war to spying.T i t l e 1 of this statute was headed Espionage andits first two sections targ eted the usual activitiesof spies, obtaining secret military informationand transmitt ing it to an enemy nation. S ection3 , on the other hand, contained several broadlyphrased prohibitions, clauses that were used toprosecute a wide range of radicals and anti-w ardissidents. Warren's new legal theory went agreat deal further, holding that those who op-posed the war sho uld be tried as spies by militarytribunals.

Warren unders tood that the MUIigan casewould be cited in opposition to his new pro-posal . A l though W arren recognized tha t theSupreme Court 's ruling in the Milligan casehad limited the t imes when martial lawcouldbe impo sed, the ru ling did no t "necessarily limit"the "application of military law to civilians."The r igh t to impose martial lawarose "out ofstrict m ilitary necessity," wh ile the authority ofCongress to institute m ilitary tribunals derived

T r a i t o r s a n d S p i e sauthorized Congress to "declare war," "providefor the common defence," and "make rules forthe governm ent and regulation of the land andnaval forces." From these general guidelinesW arren argued that Congress had the power tooverride the basic rights guaranteed to citizensof the U nited S tates in the B ill of Rights whe nit determined that the risk to the armed forcesof "the inherently dangerous effect" of certainacts "upon the military situation" required suchlegislation. Thus, he concluded, the Milligandecision had n ot limited the "power of Co ngressto legislate unde r A rticle 1, Section 8 of theConsti tution."Congress had already enacted legislationholding that civilians could be tried as spiesin military tribunals in t imes of war. In 1806,Congress had held that "aU persons not citizensof the U nited S tates" wh o were found "lurkingas spies" in the vicinity of military installationscould be tried by m ilitary tribuna l and executedif convicted. In 1862, in the midst of the CivilWar, Congress had am ended this act to include"all pers ons" found "lu rking " near fortifications.Th i s mark ed a significant extension of thescope of military justice, but it does not seemthat anyone was actually prosecuted under theprovisions of the amended act. Instead, U niongenera ls relied on courts-martial created on thebasis of m artial law.

Warren argued that Congress had alreadyasserted its right to determine who could betried by a military tribuna l for spying, and thusit could determine what acts were covered bythe charge of esp ionage . The Co n s t i t u t i o ngave Congress "the power today to subject tocourt-ma rtial civians who com mit acts just asinjurious to the m em bers of our army and navy"as those wh o spied on military fortifications.

In 1919, after the war had come to an end.Warren wrote a law review article defendingthe proposition that Congress could authorizemili tary tribunals to try civilians for acts of


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T r a i t o r s a n d S p i e she also conceded that espionage had a clearlydefined scope, wh ich did no t encompass acts ofsabotage, but he nevertheless insisted that theConsti tution had given Congress the author-ity to permit mihtary tribunals to punish "theacts of the destructive enem y agent." After all,saboteurs might prove to be "more dangerousthan spies."

Warren's argument in this art icle comesvery close to that advanced by those supp ortingthe relevant provisions in the Na tiona l DefenseAu thor iza t ion A ct . T he damage caused onSeptember 11 , 2001 was sabotage writ large.Th e N D A A (2011) does not include a rationalefor its sweeping provisions, but imphcitly theargument holds that under the provision of theCo nsti tution that gives Congress the responsi-bility to "provide for the common defense" ofthe United States, Congress can authorize themihtary to indefinitely detain anyone, includ-ing a U.S. cit izen, who provides "substantialsupport" to al-Quaida and the Tahban. Suchindividuals , goes the argument , represent asignificant threat to the national security of theUnited States during a time of hostihties, andthus are not protected by the BiU of Rights.

The argument that the Mill igan decisiondid not hmit Congressional authority to extendthe jurisdiction of mihtary tribunals to civihansis tenuou s at best . T he decision to overturnthe conviction of Mill igan could have beenmade on narrow technical grounds, but JudgeDavid Davis used the opportunity to write anopinion intended to establish broad guidelineson the entire issue. His opinion held that "it isthe birthright of every American citizen wh encharged with crime to be tried and punishedaccording to law." The controversy concerningthe jurisdiction of mihtary tribunals is groundedin "the struggle to preserve liberty an d to relievethose in civil hfe from mih tary trials." Fu rthe r-more, the Constitution "is a law for rulers andpeople equally in war and peace ."Th e argum ent

great exigencies of gov ernm ent" is "pernicious,and "leads directly to anarchy or despotism.Although the MiUigan case arose out of a triaheld unde r m artial law, Davis was mak ing a rguments that were designed to restrict the poweof mihtary trials at any time and whatever thlegal rationale.

T h e C h a m b e r l a i n C o u r t - M a r t i a l B i lwould have greatly increased the power of thmihtary, and would have marginahzed the D epar tm ent of Justice in the effort to quash dissenduring W orld War I . Nei ther At torney GeneraGrego ry nor President W ilson was prepared tomove in this direction, and the issue soon ledto a tense confrontation between the Presidenand members of Congress.

The President RespondsW A R R E N D I D N O T J U S T D E V E L O P a legal theo rjustifying the use of mihtary tribunals to prosecute civilians as spies for opposing the waand the draft, he sought to bypass the Departme nt of Justice in order to win Co ngressionaapproval for his plan. In August 1917, Warremet with Senator Paul Husting of Wisconsiand Wheeler Bloodgood , an a t to rney whheaded the Mi lwaukee County Counci l oDefense. Husting was eager to have anti-waactivists tried by m ilitary courts. Wisco nsin haa large population of German heritage, whilMilwauk ee was a bastion of the mode rate winof the Socialist Party of America. Husting anBloodgood were incensed that the MilwaukeLeader, the newspaper of the Sociahst Party oMilwa ukee, was sti ll being printed two mo nthfollowing the passage of the Espionage Act.Victor Berger, the editor of the Leader and thleader of the right-wing of the Socialist Partycrit icized the war as an imperialist ventureand yet he also urged his readers to obey all thlaws, to register for the draft, and even to buLiberty Loan Bonds to fund the war. Hustinand Bloodgood reahzed that the war remaine


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presen t a threa t therefore to govern me nt policy,and they were, therefore, anxious to establisha repressive apparatus that could immediatelysilence the Leader and dismantle the SocialistParty. W arre n propo sed his new legal theoryunder which opponents of the war would betried as spies in military tribunals as the solu-tion to this problem. Convinced, Husting andBloodgood persuaded Warren to write a m em o-randu m providing the legal rationale u nderlyingthe proposed legislation.

Warren was undermining adminis t rat ionpolicy on an im po rta nt and sensitive issue, wh ilecontinuing to occupy an infiuential position ofresponsibility. Attorney General Gregory wasquick to respond. In mid-September, 1917,Gregory met with John Lord O'Brian, a promi-nent attorney in upstate New York with closeties to the Rep ublican Party. As a result, a newdivision of the Justice Department was createdon Octob er 1, the W ar Em ergency Division. Ashead of this new division, O'Brian supervisedand coordinated the entire array of programswithin the Justice Dep artm ent aimed at sup-pressing radicals and disrupting the anti-waropposition. Warren was displaced, confined toprosecutions targeting those who violated theTrading with the Enem y Act .

Obviously, Warren had been demoted inretaliation for his persistent advocacy of a policythat would have stripped the Justice D epa rt-ment of its leading role in the suppression ofanti-w ar activities. Nev ertheless, he remaine d anAssistant Attorney General, and he continuedto promote th e ideas formulated in his mem o-randum.

The issue finally came to a head in thespring of 1918. On ce again, events in M ilwau -kee appear to have provided the spur to theconflict. A year earlier, soon after the UnitedStates had entered the war, Bloodgood had ap-proached Mayor Daniel Hoan, who had beenelected on the ticket of the Socialist Party, to

T r a i c o r s a i i d S p i e santi-war resolution that the Socialist Party hadrecently passed at an emergency convention inSt. Louis. Hoan pledged that he "was ready toassist the Defen se Co uncil" in its wo rk, and, in -deed, Bloodgood reported, Hoa n had provided"active and very helpfiil assistance" along theselines. In public, Hoan dodged the issue of thewar, but with municipal elections approaching inApril 1918, Hoan, under pressure from Berger,signed on to the Party's platform criticizing theU.S. entry in to th e war, and calling for a quickend to hostilities and a negotiated peace.

A t the same time as Milwaukee's municipalelections were scheduled, a special state-wideelection was called to fill the seat vacated bythe death of Senator Husting, who had beenkilled during a duck hunting trip in October,1917. Berger stood as the socialist candidateon a platform urging imm ediate negotiationsleading quickly to a peace treaty based on theprinciple of "no annexations and no repa ra-tions." H is cam paign attracted considerablesuppo rt beyond the S ocialist Party's Milwau keestronghold, thereby dem onstrating a widespreadbelief that the war should be brought to an endas soon as possible.

In March 1918, Bloodgood returned toWashington, incensed at Hoan's public, albeitreluctant, opposit ion to the war, and deeplyworried by the possibility that Berger could beelected Senator. Of course, the Administrationshared Bloodgood's concerns. A m on th earlier.Berger and four other Socialist Party leaders,including Ad olph Germ er, its national secretary,had been indicted for violating the EspionageAct.

Bloodgood was convinced that the ap-proach taken by the Department of Just icewould be ineffective, and Warren agreed. InW arren's view, only the d eath penalty could su c-cessfiiUy intimid ate the a nti-w ar oppo sition, andthus safeguard the war effort. He insisted that"the mora l effect of one ma n arrested and tried


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T r a i t o r s a n d S p i e scourts." W arren suggested to Bloodgood thatCongress enact legislation mandating the Armyto "deal with enemy activities."

A t Bloodgood's urging. W arren began cir-cu la ting h is memo randum .The memorandum,and a bill imp leme nting its argum ent, were soonin the hands of Senator George Chamberlain,an Oregon D em ocra t and the chair of the S en-ate Mili tary Affairs Committee. A few dayslater. W arre n sent a draft to Cha mb erlain ofa proposed bil l embodying the legal argumentformulated in the memorandum.

O n April 16, Senator Ch amb erlain filed theproposed legislation, claiming that the UnitedStates had been "allowing treason to run riot."He then proceeded to hold hearings on the billbefore his comm ittee. (Cha mb erlain may havebeen p articularly eager to sponsor a bill extend-ing the jurisdiction of military tribunals becauseOreg on had felt the impac t of an I W W strikethat had shut down the lumber industry of thePacific North we st for several mo nths beginn ingin the late spring of 1917.)Initially, Ch am berla in received the su pportof a majority of the Senate Military AffairsCommittee for his bill. Supporters of the billspecifically cited the success of Victor Berger'scampaign for a Senate seat as a reason that amore draconian repression was essential. Theproposed legislation specifically mandated thatthose charged in military tribunals under itsprovisions would be denied bail. According toChamberlain, "the privilege of bail" had "beenused in furthering spy plots."

T h e C h a m b e r l a i n C o u r t - M a r t i a l b i l l ,as drawn up by W arren , es tablished a widedefinition of espionage in time of war. Thosewho violated the Sabotage Bill, which wouldbe signed into law by the President a few daysafter the Chamberlain bill had been introduced,were included. In addition, a provision of thebiU barred the "spreading [of] false statem entsand propaganda." Th is replicated the E spionage

that unde rmine the morale of those in the arm edforces or that "oppose the cause of the UnitedStates" in the war were spies, and, thus, couldbe tried by a military tribunal. Th os e convictedof any provision of the b ill wo uld "suffer de ath .Warren testified in a closed, executive session during the first days of the Committee'shearings, voicing his dissatisfaction with themethods be ing used by the Depar tment oJustice to suppress opposition to the war. Thisclosed session was followed by a series of openhearings. Bloodgood appeared before the committee , expressing his dismay with the situationin Wisconsin. Colonel Ralph Van Deman, thechief of the Army's Military Intelligence Division, testified it was essential to have tribunalthat could "give quick and summary action" toquell those who opposed the war. Since civicriminal courts were "tied up with forms andred tape and law," military courts were necessary

Van Deman did not refer to one aspect othe proposed legislation. M I D agents tended toview liberal oppo nen ts of the war as at least amuc h of a threat to the government as th e I W Wand the radical, left-wing of the Socialist PartyAs a result, Joh n L ord O'Brian and the attorneyat the War Emergency Division generally disregarded these reports as unreliable. If m ilitarytribunals, operating under the auspices of thWar Department, supplanted civil courts, thArmy's Military Intelligence Division, and VanDe ma n, would largely determine w ho would bprosecuted for their opposition to the war.

Van Deman's wiUingness to openly testifin favor of legislation in blatant contradictionto Administration policy is telling. It is hardllikely that he would have agreed to appear ipubhc without the support of some of his superior officers. Woodrow Wilson understoodtha t his authority was being directiy challengedand he moved quickly to meet the challengeWarren was forced to resign from the JusticD epa rtm ent on April 19 , only days after h i


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T r a i t o r s a n d S p i e sIntelUgence Division, and then transferred toGeneral Pershing's headquarters staff in Paris.Van Deman's career as an inteUigence officerwas over, although he remained an Army of-ficer untU 192 9. Hi s replacement, M arlbo roug hChurchiU, foUowed simUar poUcies, but he didso more discreetly.

Clearly , the Adminis t rat ion was embar-rassed and angered by the Committee hear-ings on the Chamberlain Court-Martial BiU.It therefore moved forcefliUy to prevent theChamberlain b iU from being further consideredby Congress. Attorney General G regory sent anopen letter to Representative WiUiam Go rdo ncategorizing the biU as "exactly contrary" to thepoUcy adopted by the De par tme nt of Justice.Furtherm ore, Gregory insisted that Warren hadsent his brief and the pro posed biU to C ongress"without the consent or knowledge of the At-torney Gen eral," and w ithout his approval.

O n April 2 0 , President WUson sent his ownpubUc letter to Senator Lee Overman, insistingthat he was "whoUy and unalterably opposed"to the Ch ambe rlain Co urt-M artial bU l.The biUwas "unconstitutional" and its passage "wouldpu t us upon the level of the very people we arefighting and affecting to despise." Confrontedwith the imm inen t threat of a Presidential veto.Ch am ber lain reluctantly withdre w his biU fromconsideration. Warren's drive to vastly expandthe scope of miUtary tribunals had finaUy beenthwarted.

In the end, the Justice Dep artm ent retainedthe primary responsibiUty for prosecuting anti-war dissidents. T he federal governm ent did notlessen its efforts to quash dissent, but it did sowithin the formal procedures set by the judicialsystem. Indeed, utiUzing of the Espionage Acthun dred s of activists were jailed for their opp osi-tion to the w a r , or for initiating strikes, and servedlengthy sentences in federal penitentiaries.

ConclusionsW O R L D W A R I was intensely unpo pular am ongmilUons of Americans, especiaUy those in theWestern states. In order to silence the opposi-t ion, the federal government imposed draco-nian measures that left the First A me ndm ent 'sguarantees of freedom of speech in tatters. Th eassault on basic rights was more drastic duringWorld War I than in any other period of thiscountry's history. Nevertheless, as severe as therepression became, influential voices soughtto make the repressive measures even harsher,to greatly expand the role of the military insuppressing domestic dissent. Only PresidentWilson's intervention blocked the passage oflegislation greatly widening the jurisdiction ofmiUtary tribun als.

T he N D A A o f 2011 p laced i n t o l awmany of the provisions that were advocated byCharles Warren during World War I. Citizensof the United States charged with a crime wiUbe stripped of rights guaranteed by the BiU ofRights and wiU be subject to trial by a miUtarytribun al. Only t he vocal objections of an arousedpopulace can force the federal government toabandon its assault on basic rights. Under-standing past debates on this vital issue is animportant part of this process.

Alth oug h the U nited States Ukes to presentitself as a model of democracy, the historicalrecord is very different. Those who are dis-mayed by the erosion of civil liberties sincethe destruction of the World Trade Center inSeptember, 2001 need to consider these recentdeve lopm ents in the Ught of events in past timesof crisis.E d . note: A fiiUy footnoted version will b e found on ourwebsite newpol.org


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traitors, spies and military tribunals

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