What’s Been Missing in the Coverage of the Story About the Locked iPhone

by Lloyd C. Gardner

Lloyd C. Gardner is professor emeritus of history at Rutgers University. He is the author or editor of more than a dozen books, including The Long Road to Baghdad, Three Kings, The Road to Tahrir Square, and Killing Machine, and a co-editor (with Marilyn B. Young) of The New American Empire and Iraq and the Lessons of Vietnam, all published by The New Press. His latest book is The War on Leakers: National Security and American Democracy, from Eugene V. Debs to Edward Snowden.

Everyone seems to agree that the story began in 2013 with Edward Snowden’s revelations that the government – specifically the National Security Agency – had been collecting metadata on millions of American citizens unaware that they were under surveillance. Not so. It is true that previous to Snowden’s dramatic actions relations between the government and the leading tech companies had been good, in fact a better term might be “cozy,” as every request Washington made of Verizon or AT&T was met with scarcely a moment’s delay. Since 2013, however, the sides have been drawn up in full legal battle array. The struggle has also become one for the hearts and minds of the American people – all the way into the White House. But the story really begins with the 1917 Espionage Act.

But let’s start with current events. The immediate occasion for the looming showdown is the ISIS-inspired shooting in San Bernadino that left 14 dead and others seriously wounded, which turns out to be like the 1964 Gulf of Tonkin in several respects. San Bernadino has been cited as an example of why government needs access to iPhone encryption using the heavy emotional impact of the shootings. The argument is that only in this way can law enforcement agencies obtain crucial knowledge about Syed Rizwan’s secret contacts with other conspirators. Apple refuses to comply, arguing in court briefs that to do so would mean that it cannot resist demands from other countries for similar open sesame keys, thereby endangering individual freedoms (and Apple sales around the world). Interestingly, officials in the Pentagon are not so sure about the FBI’s demands, nor is former NSA director Michael Hayden, nor is the current commander of the U.S. Cyber Command, Admiral Michael S. Rogers. But the FBI’s case turns out to be simply a convenient use of the emotional fall-out to cover a fateful precedent. “They picked the lamest case,” says Steve Wozniak, Apple’s co-founder, a work phone issued to Rizwan that is “worthless to expect something’s on it.” San Bernadino police chief Jarrod Burguan agrees: “I think there is a reasonably good chance that there is nothing of any value on the phone.”

Lost in all this commotion, however, is the real story about the federal government’s longtime efforts to shut down leaks that goes back to World War I and even before. Immediately after Congress declared war in April 1917, President Woodrow Wilson sought the power to censor the press. He failed to get all he wanted, but Congress did pass the Espionage Act, which was used against various antiwar journals to deny them access to the mail and, most notoriously, against Eugene V. Debs, the Socialist Party candidate for president in 1912, who spoke out against the draft. The presiding judge at that trial in Ohio declared that the government did not even have to show evidence that Debs had actually hindered the war effort – or even that he had intended to hinder the war effort – let alone that he had been in contact with an agent of an enemy nation. Here began the controversial history of the 1917 Espionage Act that has culminated in the Obama administration’s efforts to use it against leakers, again with no evidence that any of these persons have been in contact with an enemy nation.

The United States has never had an “Official Secrets” act like the British and other imperial powers of the past, because the First and Fourth Amendments have stood in the way. The Espionage Act has provided a way around those constitutional barriers, shifting the criminality from the degree of classification of the information leaked to the leaker – and, if the government had gotten its way in a couple of cases, to the recipient reporter.

Thus when Edward Snowden went from Hong-Kong to Moscow seeking asylum, he was charged with violation of the Espionage Act on two counts. Attorney General Eric Holder wrote his Russian counterpart a long letter asking for his return to the United States to face those indictments in a court of law. Holder’s letter was a remarkable commentary on our recent history, however, for the American attorney general felt compelled to promise the Russian government that Snowden would not face the death penalty, nor would he be tortured. “Torture is unlawful in the United States.” The days of “rendition” to secret CIA locations where waterboarding and other methods of “enhanced interrogation” were far too fresh in public memory, apparently, for Holder to forego assurances to world opinion and domestic critics about such practices, a deeply embarrassing situation especially vis-à-vis a government headed by Vladimir Putin. And, as it later became apparent, the U.S. government had one of the planes used in the infamous renditions of the Bush Administration standing ready in case Snowden attempted an escape to another country that had offered asylum!

The previous most famous effort to convict a leaker using the Espionage Act was the Daniel Ellsberg Pentagon Papers leak in the 1970s. That prosecution failed not because of an acquittal, but because the federal government’s case against Ellsberg was thrown out of court because of the Plumbers’ raid on Ellsberg’s psychiatrist’s office. Hence the question remained whether or not the Espionage Act could be used to punish leakers, if not those who received the information. If we jump ahead to the post-9/11 era, Presidents George W. Bush and Barack Obama have used the Espionage Act to intimidate (it is, after all, a form of profiling simply to charge someone with violating the act) other leakers into accepting guilty pleas on lesser charges, such as Thomas Drake and John Kiriakou, rather than be forced to spend tens of thousands of dollars to defend themselves. Two convictions under the act stand out, that of Chelsea Manning and Jeffrey Sterling, both cases in which a dedicated effort has been made to coerce the receiver of the information. The latter case was especially important because the conviction was obtained in a civilian court rather than a military court martial where the government had all the advantages. Courts have held, furthermore, that motives for leaking cannot be considered until sentence hearings after conviction.

Now almost forgotten, another legendary leaker, Frank Serpico, who revealed rampant corruption in the New York Police Department, and who was called a traitor by the reigning powers, now 80 years old, warns that corruption always comes from above in our world. “Our democracy has been shattered! See how they treated Manning or Snowden, or the drones they use to bomb innocent people. Then when you shine a light on what the powerful do, they blame the person who is shining the light.”