CHAPTER V
THE LAW AND ITS NEW TEETH
Insufficiency of the Espionage Laws at the Outbreak of the War—Getting Results—The Amended Espionage Act—The Law of 1798 Revived—Statement of the Attorney General of the United States.
If predisposed to alien enemy sympathy, a critic might declare that the League was made up of individual buccaneers, who did high-handed things and escaped punishment therefor only because of the general confusion due to a state of war. Nothing could be more unjust or farther from the truth than such a belief. On the contrary, the League and the Department of Justice as well felt continually held back and hampered by respect for laws admittedly inadequate.
We had matured a great system of jurisprudence, sufficient for ordinary needs. Moreover, when war began, we had passed more laws adjusted to the new needs; but it is a curious fact that, threatened as we were by Germany’s perfected system of espionage and propaganda, we had no actual statute by which we adequately could cope with it until May, 1918—more than a year after we went to war, and less than six months before the end of the war.
In the spring of 1918, the National Directors began, under the editorship of Daniel V. Casey, the issue of a League organ or confidential bulletin, called “The Spy Glass.” The first number of the publication, in June of that year, took up the amended Espionage Act, which was the base of practically all of the A. P. L. and D. J. work during the war. This amendment rebuilt and stiffened the original Espionage Act of June 15, 1917, which had been found insufficient, and “put teeth in the law,” as the Attorney General’s office phrased it. “The Spy Glass” printed a digest of the new enactment, which is of essential interest at this point of the League’s story as it determined the whole character of the League’s later activities. This summarization of the Espionage Act is printed as Appendix C in the present volume.
Up to the close of 1917, we had had, duly amended, many national statutes covering treason and sedition, foreign and hostile connections, pretending to be an officer, enticing to desertion or strikes, trespassing at military places, falsely claiming citizenship, aiding or counseling offense, wearing uniform unlawfully, conspiracy, neutrality, counterfeiting seals, use of mails, trading with the enemy, censorship, foreign language news items, sabotage, etc., as well as many specific enactments controlling persons liable for military service, and covering the increase of the army, the questions of evasion, desertion, etc. These powers, broad as they were already, were extended under the blanket power of the Articles of War, to cover fraud, desertion, mutiny, insubordination, misbehavior before the enemy, traitors and spies, murder, rape and other crimes, and the general conduct and discipline of those in military service.
Not even all these laws, however, were found to stand the extreme demands put on the country by thousands of new and wholly unforeseen exigencies. As a matter of fact, one of the most useful of all our laws against enemy aliens and spies was one not up-to-date at all, but dating back to Revolutionary times; that is to say, July 6, 1798![1]
This old law was unearthed by the agents of the Department of Justice. It gave almost blanket powers to the President of the United States, and it was under the President’s proclamations, based on that old law, that most of the early internment arrests were made. The old law, long disused, was found to work perfectly still! It was extended in force by the regulations controlling enemy aliens.[2]
It became the duty of the newly organized League to take on the accumulation of testimony under all these new laws; and what that was to mean may be forecast from the comment of the Attorney General of the United States in his annual report for 1918:
The so-called Espionage Act contains a variety of provisions on different subjects, such as neutrality, protection of ships in harbor, spy activities, unlawful military expeditions, etc. Most of the cases which have arisen, however, presenting the most complex problems, have been under the third section of Title I of this act, which is aimed at disloyal and dangerous propaganda.
This section 3 was amended by a law which became effective May 18, 1918, commonly called the Sedition Act, which greatly broadened the scope of the original act and brought under its prohibitions many new types of disloyal utterance. The use which our enemies have made of propaganda as a method of warfare is especially dangerous in any country governed by public opinion. During the first three years of the war, the period of our neutrality, the German Government and its sympathizers expended here a vast amount of money in carrying on different types of propaganda, and these activities are a matter of public knowledge. During our participation in the war, section 3 and its later amendment have been the only weapons available to this Government for the suppression of insidious propaganda, and it is obvious that no more difficult task has been placed upon our system of law than the endeavor to distinguish between the legitimate expression of opinion and those types of expression necessarily or deliberately in aid of the enemy. The number of complaints under this law presented to the Department of Justice has been incredibly large.
Such, then, was the ultimate machinery of our national laws when, late, but with such speed as a willing Congress could give after the gauntlet was flung and the issue joined, we began to face in dead earnest the peril of the times. We now had at last a full set of laws with teeth in them. But it was a tremendous burden that the older institutions of our administrative machinery had to carry. In sooth, the load was too much. The machinery buckled under it. We could not do the work we had to get done.
That work was more than ever had been asked of any nation of the world. We had a mixed population of wholly unknown disposition. Some said we delayed going to war for so long because we were not sure our people would back the Government. That, surely, could be the only reason for the delay. All the races of the world were seething in rage and jealousy. We had racial war within our borders. We could not count on our own friends. We could not predict as to what percent of men would be loyal to our flag. We had two million men of German blood inside our borders, guaranteed by their Kaiser to be loyal to Germany. And long before we had gone to war, we had had abundant proof of their disloyalty to us, of their hatred for Britain and France, and their discontent with our own neutrality. We had openly been warned by the German Kaiser that he counted on the loyalty to Germany of many or most of these men. Fear alone held the average pro-German back. But it did not hold back their seasoned spies and the agents who worked under cover. The sudden cessation of pro-German talk which fell when we declared war deceived none but the pacifists. The boasts of German-Americans as to their holdings in Liberty Bonds deceived not at all the men who had sat and listened on the inside; for even at this time the records were piling up—records of private acts and words of treason to America which had been noted by the A. P. L. The full record of German craft and duplicity, of treachery and treason to America, never will be made public. It was alike a loathsome and a dangerous thing.
Obviously, the hands of our Government sorely needed upholding. Who was to do that? Who would apply all these laws now that we had them? Who should watch two million tight-mouthed men whose homes were here but whose hearts were still in Germany? Who could cope with 300,000 spies, in part trained and paid spies, many of whom were sent over to America long before Germany declared the war which was “forced” on her?
That was what the American Protective League already was doing when war was declared; it is what it has done ever since, loyalty, patiently, indefatigably, to an enormous and unknown extent, in an unbelievable variety of detail. If ever you have held its members irresponsible or deemed them actuated by any but good motives, cease to do so now. Beyond all men of this generation they have proven that patriotism is not dead.
The enforcement of the President’s proclamation governing the conduct of enemy aliens in this country entailed a tremendous amount of D. J. work, the larger part of which devolved upon the agents of the League. Thousands of investigations of alien Germans were made under its provisions. Numerically speaking, however, the work in that imperatively necessary line yielded to the more thankless labor of slacker and deserter hunting.
The function of the League in all these matters is obvious. No case at law will “stick” unless supported by competent testimony. We have seen that the League was organized for the collection of evidence, and for nothing else. Limited as its power was, it really saved the day for our hard-pressed country. It increased our Army by many thousands of evaders whom it found and turned over to the military authorities. It put hundreds of aliens into internment. It apprehended plotters and prevented consummation of conspiracies beyond number. It kept down the danger of that large disloyal element, and held Germany in America safe while we went on with the open business of war in the field. It is by no means too much to say that much of the Kaiser’s disappointment over his German-American revolt was due not so much to any loyalty to the American flag—for of all of our racial representatives, the Germans are the most clannishly and tenaciously loyal to their own former flag—as it was to fear of the silent and stern hand searching out in the dark and taking first one and then another German or pro-German away from the scenes that erstwhile had known him. It was fear that held our enemy population down—fear and nothing else. It was the League’s silent and mysterious errand to pile up good reason for that fear.
At the crack of war, certain hundreds of dangerous aliens were interned at once. They simply vanished, that was all, behind the walls of camps or of prisons. It will be mistaken mercy if we shall not deport thousands more when we shall have the time deliberately to do that. Fear is the one thing such men understand. Honor and loyalty, terms interdependent and inseparable, are unknown to them. Too many Germans loved America only because they made money easily here. Their real flag still was across the sea, except as they had raised it here in their churches and their schools.
It was sometimes rumored that many spies were shot secretly in America. That would have been done in Germany—as witness the deaths of Edith Cavell and others. It was not done here. We did not kill a single spy, a single traitor,—more is the pity. By reason of the fact that we had outspied Germany’s vaunted espionage, we nipped in the bud none knows how many plots and conspiracies which otherwise would have matured in ruin to life and property. We did not shoot known spies, but we garroted them in the dark and hurried them to jail. That agency of the law is best, after all, which keeps crime from becoming crime. We did not wait for overt acts—we filled our prisons before the acts were done! That is why the public was obliged to romance as to German spies. They are in jail. The report of the Department of Justice itself, of June, 1918, on these war activities will in this connection prove interesting reading:
During the period of American neutrality many persons were prosecuted for criminal acts connected with efforts to aid the belligerents. Some of these cases were still pending when the United States declared war on Germany. A very satisfactory standard of success was attained in the ante-bellum prosecutions. Almost before the ink had dried on the proclamation of April 6, 1917, a select company of dangerous Germans were gathered in by the United States Marshals. These prisoners were believed to be potential, and in some cases actual leaders of pro-German plots and propaganda. Subsequent discoveries have quite fully confirmed this belief. Recently a most authoritative document was found to contain among other matters the names of several gentlemen whom the German Government trusted to carry on its work here unofficially after the withdrawal of the official representatives. Of these, all were arrested on April 6, 1917, save one who had already left the country. This disposal of the German leaders had effects which have been continually reflected in the disjointed and sporadic character of hostile outbreaks.
One of the most recent, most novel, and most important of the Department’s efforts is the denaturalization of disloyal citizens of foreign origin. Many natives of Germany or Austria, sheltered from summary internment by their acquired citizenship and clever enough to avoid the commission of actual crime, have insulted and injured this government at every opportunity. Fortunately the naturalization law contains a clause permitting the cancellation of citizenship papers obtained by fraud. Without waiting for further legislation, which is apparently on the way, the Department has assailed a number of defendants believed to have made fraudulent mental reservations of loyalty to their native countries. Several of these cases have already ended victoriously for the government. More than one defeated defendant has been interned.
Meanwhile the summary arrests have continued. From week to week through 1917 their numbers steadily increased. Since about the beginning of 1918, the rate has been more nearly constant.
Extremists have advocated the universal internment of alien enemies, somewhat after the English practice. Now, Great Britain interned permanently rather fewer than seventy thousand alien enemies. The United States would be compelled to intern at least eight hundred thousand Germans and more than twice as many Austrians. The colossal expense of maintaining this horde in idleness—civilian prisoners of war are far more useless than convicts, because they may not be forced to work—is too obvious to need discussion.
More temperate critics say that there have been too few arrests, too low a proportion of internments, and too high a proportion of paroles. As to the first and second charges, it is a sufficient answer that conditions have improved instead of becoming worse. A policeman’s record should not be judged by the number of people he has put in jail, but by the kind of order maintained on his beat.
In his annual report, issued December 5, 1918, subsequent to the signing of the armistice, the Attorney General stated that six thousand alien enemies had been arrested on presidential warrants, based on the old law of 1798. Of these, a “considerable number” were placed in the internment camps in charge of the Army. The majority of these were German men and women, with a certain number of Austro-Hungarians. He concludes: “I do not want to create the impression that there is no danger from German spies and German sympathizers. There are thousands of persons in this country who would injure the United States in this war if they could do so with safety to themselves. However, they are no more anxious to be hanged than you are.”
The foregoing will show, to any student of the strange and complex situation which has confronted America at home these last four years, the main facts as to the emergencies we met and the means by which we met them.
The surprising thing is that we Americans have not known ourselves! A thoughtful study of the American Protective League is not a mere yawning over phrases of the law any more than it is a mere dipping into exciting or mystifying experiences. It is more than that. It is an excursion into a new and unexplored region in America—into the very heart of America itself.
FOOTNOTES:
[1] See Appendix D for text of this law.
[2] See Appendix E for text of the President’s proclamation for the regulation of alien enemies.