Much of the structure of secrecy now in place in the United States Government took shape in just under eleven weeks in the spring of 1917. As provided by the Constitution, President Woodrow Wilson on April 2 asked Congress for a Declaration of War against Imperial Germany. That same day, an espionage act was introduced in the House of Representatives; the next day in the Senate. On April 4, the Senate adopted a Declaration of War. On April 5, the United States Civil Service Commission provided the President with a choice of executive orders providing for "excluding from the Government service of any person of whose loyalty to the Government there is reasonable doubt."
2. The Experience of the First World War
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 The Acts thereupon expired, were repealed, or were amended out of existence.24 It was our first such experience as a nation, and one which was eerily reenacted 119 years later.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:
[S]ome suggestion as to legislation covering foreign intrigues in our internal affairs such as conspiracies to blow up factories, to encourage strikes, to interfere with industrial operations, to gather information of this government's secrets, etc., etc.27
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:
There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue. . . . A little while ago such a thing would have seemed incredible. Because it was incredible we made no preparation for it. We would have been almost ashamed to prepare for it, as if we were suspicious of ourselves, our own comrades and neighbors! But the ugly and incredible thing has actually come about and we are without adequate federal laws to deal with it. I urge you to enact such laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out.29
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":
[F]rom the very outset of the present war it has filled our unsuspecting communities and even our offices of government with spies and set criminal intrigues everywhere afoot against our national unity of counsels, our peace within and without, our industries and our commerce. Indeed it is now evident that its spies were here even before the war began.32
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:
According to the complaint on which the Hindoos were taken into custody they conspired to "Cripple, hinder and obstruct, the military operations of Great Britain" by sending Hindoos to India to stir up a revolt, and to help Germany by forcing Great Britain to withdraw troops from Europe for service in India to quell the revolt.35
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:
"Once lead this people into war," he said, "and they'll forget there ever was such a thing as tolerance. To fight you must be brutal and ruthless, and the spirit of ruthless brutality will enter into the very fibre of our national life, infecting Congress, the courts, the policeman on the beat, the man in the street." Conformity would be the only virtue, said the President, and every man who refused to conform would have to pay the penalty.38
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:
In 1917-19 the people of the United States abandoned themselves to a hysteria of fear of German conspiracies and of Communist subversion, and the government indulged in greater excesses than at any previous crisis of our history.39
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:
The war offered a great opportunity to bring patriotism to the aid of personal grudges and neighborhood feuds. The independent-minded sort of citizen who was known to his conforming neighbors as a 'Tory' in the Revolution, a 'Jacobin' in 1798, and a 'Copperhead' in the Civil War became a 'pro-German traitor' in 1917 and a 'Bolshevik' in 1918, and was lucky if he did not have garbled scraps of his conversation sent in to the Department of Justice or flashes from his shaving mirror reported as signals to German submarines. German-Americans, the vast majority of them loyal to the United States, were subjected to all sorts of indignities. Schools dropped German from their curricula, and even some universities abolished their German departments; German books were withdrawn from public library circulation and German publications driven under cover. The Governor of Iowa decreed that 'conversation in public places, on trains, or over the telephone' should be in the English language. Frederick Stock, distinguished conductor of the Chicago Symphony Orchestra, was deprived of his baton; the patriotic mayor of Jersey City refused to allow Fritz Kreisler to appear on the concert stage; and some universities revoked degrees they had conferred on distinguished Germans, thus giving academic sanction to the doctrine of retroactive guilt.40
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:
The censorship portion [of the Espionage Act] set off a storm of Congressional controversy. House Speaker James Beauchamp (Champ) Clark declared that censorship of the press was "in flat contradiction of the Constitution" and progressive Hiram W. Johnson and conservative Henry Cabot Lodge condemned it. Congress dropped the provision, but the rest of the bill sped through. . . .Again, the authors of The Growth of the American Republic:
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
Under these harsh laws the government instituted widespread censorship of the press; banned two Socialist newspapers from the mails; held up circulation of a tax-journal, The Public, because it advised that more of the costs of the war should be borne by taxation; and banned Thorstein Veblen's Imperial Germany and the Industrial Revolution. . . . A hapless film-producer was sentenced to ten years in jail for producing a film on the American Revolution called The Spirit of Seventy-six, because it was thought that it might excite anti-British sentiments; a Vermont minister was sentenced to fifteen years' imprisonment for citing Jesus as an authority on pacifism. . . . 42At the now considerable distance, it is difficult to appreciate the force of pacifism as a political movement of the late 19th and early 20th centuries. It was international, based on creed, and given to association with socialism and other such commitments. There was nothing notably exotic in its doctrine, certainly not in the age of The Hague Peace Conferences convened in Holland in 1899 and 1907 by the Czar of Russia, nor of the Hague Peace Palace built there between 1907 and 1913.
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:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. . . . The question in every case is whether the words used are used in such a circumstance and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.47
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:
SEVENTY-FIVE years ago this month, New York Harbor exploded. This is not a figure of speech; it was not an explosion of fear or an explosion of cheers. What took place was a colossal, ear-splitting, ground-shaking, glass-breaking explosion.35 "Ram Chandra in Toils with Four Hindoo Plotters," San Francisco Chronicle, 8 April 1917, 1.
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.)
36 Joan M. Jensen, "The 'Hindu Conspiracy': A Reassessment," Pacific Historical Review, 48 (February, 1979): 65.
38 John L. Heaton, Cobb of "The World" (New York: Dutton, 1924), 270.
39 Samuel Eliot Morison, Henry Steele Commager, and William E. Leuchtenburg, The Growth of the American Republic, 6th ed. (New York: Oxford University Press, 1969), 2:383.
40 Ibid., 2:386.
41 The Encyclopedia of the United States Congress, vol. 2 (New York: Simon & Schuster, 1995), 774.
42 Morrison et al., Growth of the American Republic, 2:384.
43 Louis W. Koenig, Bryan: A Political Biography of William Jennings Bryan (New York: G.P. Putnam's Sons, 1971), 502-03.
44 Arthur S. Link, Wilson: The Struggle for Neutrality, 1914-1915 (Princeton: Princeton University Press, 1960), 420.
45 "Josephus Daniels Dies at Age of 85," New York Times, 16 January 1948, 17.
46 New York Times, 7 March 1916, 1.
47 Schenck v. United States, 249 U.S. 47 (1919).
48 Debs v. United States, 249 U.S. 211 (1919).
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