Espionage Act of 1917.... in 2012

Every once and a while, you realize that old laws really can play new tricks.  Take the recent U.S. Supreme Court arguments in Kiobel v. Royal Dutch Petroleum.  This case was brought by the plaintiffs under the Alien Tort Statute (part of the original Judiciary Act of 1789), a law originally intended to combat piracy, but now being used by human rights activists to seek justice for victims of human rights abuses under international law.

Today, the Obama administration has been making active use of the old World War I era Espionage Act of 1917 to police the leaking of information by government workers to the press.  As the New York Times reports, the Obama White House has been using this law to "silence" government workers more than others in the past, giving the following example:

"In one of the more remarkable examples of the administration’s aggressive approach, Thomas A. Drake, a former employee of the National Security Agency, was prosecuted under the Espionage Act last year and faced a possible 35 years in prison. His crime? When his agency was about to spend hundreds of millions of dollars on a software program bought from the private sector intended to monitor digital data, he spoke with a reporter at The Baltimore Sun. He suggested an internally developed program that cost significantly less would be more effective and not violate privacy in the way the product from the vendor would." (NOTE: more on Drake's case here)

Activist and writer Naomi Wolfe has warned in recent years about the potential of the Espionage Act to silence critics of government policy, particularly war. In a 2010 article reflecting on the Wikileaks scandal, Wolfe noted back in 2006 (before the Obama victory in 2008) that "forces that wish to strip American citizens of their freedoms, so as to benefit from a profitable and endless state of war -- forces that are still powerful in the Obama years, and even more powerful now that the Supreme Court decision striking down limits on corporate contributions to our leaders has taken effect -- would pressure Congress and the White House to try to breathe new life yet again into the terrifying Espionage Act in order to silence dissent."

So once again, the question of security versus freedom returns.  I wonder if this tension will ever resolve itself...