On April 6, the House declared war. On April 7, the President signed a "Confidential" executive order concerning the loyalty of government employees. The debate on "the Act to punish Acts of Interference with the Foreign Relations, the Neutrality of the Foreign Commerce of the United States, to punish Espionage, and better to enforce the Criminal Laws of the United States, and for other purposes," known as the Espionage Act of 1917, continued through the spring, and the legislation was signed into law on June 15. 23
The Espionage Act had an antecedent in the Alien and Sedition Acts of 1798, three Acts dealing with aliens and one with sedition. The bills were passed by a Federalist Congress, as historian Jerald A. Combs writes, "to silence opposition to an expected war with France." Neither country had declared war, but French and American ships had fought many battles. One measure re-quired an alien to live in the United States for fourteen years before becoming a citizen; immi-grants at the time were mostly French and Irish who supported the Democratic-Republicans, who in turn tended to support France. Thomas Jefferson and James Madison challenged the constitu-tionality of the Acts, which were a prominent issue in the 1800 election, won by Jefferson. The Acts thereupon expired, were repealed, or were amended out of existence.24 It was our first such experience as a nation, and one which was eerily reenacted 119 years later.
It would be too much to state that the Democratic administration of Woodrow Wilson expected war with Germany from the outset of hostilities in Europe in 1914. But its sympathies lay with Great Britain, as would those of the administration of Franklin D. Roosevelt, a spare two decades later. Moreover, Imperial Germany, in the face of proclaimed American neutrality, set about a campaign of espionage aimed at curtailing the American supply of weapons for the Allied forces, and in so doing involved itself with ethnic elements: German and Irish, opposed to support for the Allies; and a new group, Indians, in the main Punjabis, opposed to British rule in India.
The pattern here is the perception of both external and internal threat, the latter deriving from ideological or ethnic elements, these latter often overlapping. The first statute enacted by the 1st Congress prescribed the Oath of Allegiance taken by officers of the American Government. It was an oath to support the Constitution of the United States. In 1861, four months into the War of Secession, the oath was amended to read "support, protect, and defend the Constitution and Government of the United States against all enemies whether domestic or foreign"25 (emphasis added). Note that domestic comes first. The linkage never thereafter dissolved.26
With the 20th century, a new intensity attended the anxieties of state. Normally moderate, reasonable men and women would grow hysterical confronting unnamed, unseen, frequently nonexistent dangers. In Europe, the Great War itself was in great measure the result of such insecurities. It was a civil war, as we can now see it, that all but destroyed the premier civilization of the age, both by itself and, even more, by its vertiginous aftermath. War brought revolution, which brought more war, then more revolution. No state was any longer secure; this in the aftermath of the long and virtually undisturbed stability of the century preceding.
The United States could not escape this; did not. Thus, it came about that on November 20, 1915, Wilson's Secretary of State Robert Lansing, the most moderate of men, experienced prior to the outbreak of war with all manner of arbitral tribunals which had promised an era in which disputes between nations would be settled by law, rather than arms, would write the President urging that he include in the forthcoming State of the Union address:
The previous May 10, Wilson, the embodiment of the academic in politics, thoughtful, careful, reasoned above all, had told a Philadelphia audience, "There is such a thing as a man being too proud to fight."28 Now on December 7, 1915, in his Annual Message on the State of the Union to Congress, he said of the War in Europe, "We have stood apart, studiously neutral." But then this:
No President had ever spoken like that; none since. In a half-century of Cold War with the Soviet Union, when there were indeed persons of foreign birth, living in the United States, actively involved in seditious activities on behalf of the Soviet Union, no President ever spoke like that. Others in public life did; many others in private life did, including many who knew what they were talking about. But the telling fact is that the intensity of fear and, yes, loathing of those years was never later equaled.
Assistant Attorney General Charles Warren was assigned the task of drafting such laws. On June 3, 1916, seventeen separate bills were sent to Congress.30 The following February 3, 1917, Germany resumed unrestricted submarine warfare, and the United States broke diplomatic relations. On February 20, the Senate combined thirteen of the seventeen bills and passed that measure, but the House did not act. At a cabinet meeting of March 20, Attorney General Gregory asserted that "German intrigues" were afoot but complained of the "helplessness of his Depart-ment under existing laws."31 In his address asking for a Declaration of War, Wilson cited spying as an example of the hostile intent of the "Prussian autocracy":
In short order, Congress passed legislation based on the original seventeen bills the administration had proposed, and on June 15, the Espionage Act was signed into law.
There was then, as now, a large American population of German ancestry. German culture was widely admired, the German language taught in public schools, German political traditions viewed as essentially democratic. Early in the War, the Berlin government set out to use these attach-ments to influence public opinion to oppose American entry into the War. As the War began in August, 1914, the German ambassador arrived in the United States with $150,000,000 in German Treasury notes 33 ($2.2 billion in current dollars) to pursue a propaganda campaign, purchase munitions for Germany, and conduct an espionage campaign aimed at denying war material to the Allies. This latter was the province of the Military Attache, Captain Franz von Papen.
In a fateful manner, whilst the British made friends, the Germans made enemies. Early in the morning of July 30, 1916, German agents, probably assisted by Irish nationalists, blew up a munitions dump at the Black Tom railroad yard and the adjoining warehouses in New York harbor. (The site is now Liberty State Park, where tourist boats depart to visit the Statue of Liberty.) It was a stunning event, in both magnitude and consequence.34 Sabotage became a national issue.
Captain von Papen also provided support for the Ghadar movement (Urdu for "mutiny"), composed principally of Punjabi Indians seeking independence from British rule. It was based principally in California, to which Punjabi agricultural workers had migrated from Canada. Once war was declared on Germany, the United States Government indicted some 105 persons of various nationalities for participating in the conspiracy. From the start it was viewed as the "Hindoo conspiracy." When the first arrests were made, the San Francisco Chronicle noted U.S. Attorney John W. Preston's characterization of those indicted as involved in "the Hindoo conspiracy [which] was an offshoot of the German neutrality plots." The article goes on to say that:
At the trial, the conspiracy was described as one which "permeated and encircled the whole globe."36 Twenty-nine defendants were found guilty: fifteen Indians, fourteen German-Americans or Germans. The latter included Franz von Bopp, German Consul in San Francisco. The "Hindoo conspiracy" entered the national imagery.37
For all the energy and expenditure, it is not clear what Berlin had to show for its elaborate and extensive espionage activity. At this time, the United States possessed one genuine "national defense" secret--which was that the American military was in no sense prepared for a major war with major adversaries. The Army was so under-equipped that when it got to France it had to borrow French artillery. But this was an open secret, and in that sense, the Espionage Act can be said to have accomplished little or nothing. German espionage, real or imagined, did, however, do great damage to German-Americans, and thereby to the American people at large.
As war approached, Woodrow Wilson had delivered himself of this mordant forecast:
He seems not to have noticed his own excess, a failing not unknown in university presidents. He had alerted Congress to the intrigues of the foreign-born pouring poison into "the very arteries of our national life." Whether he realized it or not, Wilson was forever showering civil liberties on Germans in Germany whilst taking them away from American citizens of German descent. In his message to the Congress asking for a Declaration of War, he was emphatic: "We have no quarrel with the German people. We have no feeling toward them but one of sympathy and friendship."
Throughout the War, he pressed a policy of "war on the German government, peace with the German people." Save such as might have migrated to Milwaukee!
Never before, never since, has the American government been so aroused by the fear of subver-sion, the compromise of secrets, the danger within. In The Growth of the American Republic (1969 edition), Samuel Eliot Morison, Henry Steele Commager, and William E. Leuchtenburg write:
Note the linkage of ethnic identity and political radicalism. This was present in Wilson's 1915 message to Congress: "creatures of passion, disloyalty, and anarchy" who "must be crushed out." Now it all broke out. The historians continue:
Fortunately, Dwight D. Eisenhower had graduated from West Point in 1915.
As Congress attempted to restrain the Executive, although faintly, it might better be said to have lagged. The Encyclopedia of the United States Congress records:
Postmaster General Albert S. Burleson and Attorney General Thomas W. Gregory vied with one another in clamping down on what they considered to be treasonable utterances. And within a year the president asked Congress for amendments to strengthen the Espionage Act by extending its reach to "profane, scurrilous, or abusive language about the form of government . . . the Constitution . . . or the flag of the United States, or the uniform of the Army and Navy." The result--the Sedition Act--became law on 16 May 1918.
Under these statutes some pro-German newspapers and speakers and, far more often, socialist and other radical antiwar voices were suppressed and punished. In its 1919 Schenck v. United States and Abrams v. United States decisions, the Supreme Court upheld the constitutionality of this legislation. Congress allowed the law to expire in 1921. 41
William Jennings Bryan, Wilson's first Secretary of State, was a pacifist--in the words of his biographer a "pacifist committed, with remarkably few reservations, to nonviolence in dealings between the nations." To this end, he had set about negotiating some nineteen "cooling-off" treaties providing for international commissions to conciliate disputes when ordinary diplomatic methods failed. (In the Hoover administration, Secretary of State Frank B. Kellogg would negoti-ate another nineteen).43 Bryan resigned, gracefully, over the tone of Wilson's response to the German sinking of the Lusitania and other ships. Arthur Link observes "it was not so much what the President's note said as what it did not say," that Bryan could not accept. It did not say that the United States would do everything possible "to avert even the possibility of war."44 Josephus Daniels, Wilson's Secretary of the Navy, was a Bryan supporter, and was certainly dubbed a "pacifist," as his obituary noted.45 A teetotaler, too. Doubtless also a foe of The Trusts. When, in March 1916, Wilson appointed Newton Diehl Baker Secretary of War, the New York Times headline read, "Baker to Be New Secretary of War; He is known as an Ardent Pacifist."46
Nonviolence had been advocated by Quakers in America since the 17th century. Of a sudden, such views became subversive, and "foreign," and a penal offense. The United States Government grew reckless in its infringement of liberty. Consider the matter of Eugene V. Debs, who had run for President as the candidate of the Socialist Party of America in 1912. He had received 900,369 votes, 6.0 percent of all votes cast. (Wilson received only 41.9 percent.) On June 16, 1918, Debs delivered a speech in Canton, Ohio, which had an anti-war theme and expressed solidarity with three men--Wagenknecht, Baker, and Ruthenberg--who were convicted of failing to register for the draft. He also condemned the conviction of Kate Richards O'Hare for obstructing the draft. Such speech was now forbidden under the Espionage Act. Debs was tried, convicted, and sentenced to ten years' imprisonment on each of three counts, to be served concurrently.
The Supreme Court did not consider the constitutionality of the Espionage Act of 1917 and the Sedition Act of 1918 until after World War I was over. The enduring legal precedent established by the Court in its consideration of these Acts comes from Schenck v. United States. In writing that opinion on behalf of the Court, Justice Oliver Wendell Holmes articulated the "clear and present danger" test. The ruling affirmed that Congress has a right to limit speech in an attempt to limit certain "evils." Holmes explained:
Subsequent to Schenck, Justice Holmes also wrote the opinion, for a unanimous court, upholding the conviction of Eugene V. Debs on March 10, 1919. 48
As never before, as never since, the American Presidency, with the cooperation of Congress and the courts, was obstructing democracy in the name of defending it.
Not altogether. In 1920, Debs once again ran for President as the candidate of the Socialist Party of America, this time from the Atlanta Penitentiary. He received more votes (915,940), but a lower percentage of the electorate (3.4), than in 1912. On Christmas Day 1921, President Warren G. Harding commuted his sentence. He was provided a railroad ticket from Atlanta to Washing-ton. On December 26, he called first on Attorney General Harry M. Daugherty, and thereafter had a half-hour visit with President Harding at the White House. In the 1920 election, Harding had promised a return to normalcy, and he kept his word. (On Wilson's last day as President, Congress repealed the 1918 amendment to the Espionage Act, known as the Sedition Act.) But nothing would be quite the same again.
23 Statutes at Large 40 (1917): 451.
24 Jerald A. Combs, "Alien and Sedition Acts," in The World Book Encyclopedia (Chicago: World Book, Inc., 1996), 368.
25 Statutes at Large 12 (1861) 326.
26 As Madison wrote to Jefferson on 13 May 1798, "Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad." James Morton Smith, ed., The Republic of Letters, The Correspondence between Thomas Jefferson and James Madison 1776- 1826 (New York: W. W. Norton & Co., 1995), 2:1048.
27 Lansing to Wilson, 20 November 1915. Arthur Link, ed., The Papers of Woodrow Wilson (Princeton: Princeton University Press, 1980), 35:230.
28 Ibid., "An Address in Philadelphia to Newly Naturalized Citizens" (10 May 1915), 33: 147-50.
29 Ibid., "Annual Message on the State of the Union" (7 December 1915), 35: 306-07.
30 U.S. Department of Justice, Annual Report of the Attorney General, 1916 (Washington, D.C.: Government Printing Office, 1916), 12-20.
31 "A Memorandum by Robert Lansing" (20 March 1917), Link, The Papers of Woodrow Wilson, 41:442. 32 Ibid., "Address to a Joint Session of Congress" (2 April 1917), 41:421.
33 Jules Witcover, Sabotage at Black Tom: Imperial Germany's Secret War in America, 1914-1917 (Chapel Hill: Algonquin, 1989), 42; Captain Henry Landau, The Enemy Within: The Inside Story of German Sabotage in America (New York: G.P. Putnam's Sons, 1937), 7-8.
34 The New York Times recorded in retrospect:
The blast came at 2:08 A.M. on July 30, 1916, at Black Tom, a depot jutting out from Jersey City into
the Hudson River opposite Manhattan. A New York newspaper said, "A million people, maybe five
millions, were awakened by the explosion that shook the houses along the marshy New Jersey
shores, rattled the skyscrapers on the rock foundation of Manhattan, threw people from their beds
miles away and sent terror broadcast."
The noise of the explosion was heard as far away as Maryland and Connecticut. Fire alarms and burglar alarms went off; phone lines between New York and New Jersey were severed. On both sides of the Hudson, people in their pajamas rushed out of buildings. Thousands milled around, watching the sky turn red from flames as more explosions thundered from the harbor.
In Jersey City, residents swarmed into churches. On Ellis Island, terrified immigrants were evacuated
by ferry to the Battery. Shrapnel from the explosion pierced the Statue of Liberty. The Black
Tom terminal was completely destroyed. (Marc Mappen, "Jerseyana," New York Times, 14 July
1991, sec. 12, 15.)
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