Traitors, Spies and Military Tribunals: The Assault on Civil Liberties During World War I

by Eric Chester

1. The Defence of the Realm Act, August 8, 1914, Acts of Parliament, 1914, Chapter 29.

2. The Defence of the Realm Act (Amended), August 28, 1914, Acts of Parliament, 1914, Chapter 63.

3. The Defence of the Realm Act (Consolidated), November 27, 1914, Acts of Parliament, 1914, Chapter 8.

4. Richard Haldane, November 27, 1914, House of Lords Debates, 5th Series, Volume 18, Column 205.

5. The Defence of the Realm Act (Amended), March 16, 1915, Acts of Parliament, 1915, Chapter 34; K. D. Ewing and C.A. Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914-1945 (Oxford: Oxford University Press, 2000), p.50.

6. The relevant regulations are Regulation 9 and Regulation 51. Charles Cook, ed., Defence of the Realm Manual, 6th edition, (London: HMSO, 1918), p. 1 and p. 184.

7. Cook, ed., Manual, p. 126.

8. William Wiseman to Mansfield Cumming, February 7, 1917, Box 4, Wiseman Papers, Yale University, New Haven Connecticut. Cumming was the first head of MI6, the original ‘C’ of James Bond fame. Wiseman’s report can not be located in his own papers at Yale, or the British National Archives in Kew Gardens or the U.S. National Archives at College Park, Maryland. It would make interesting reading.

9. Wiseman to Cumming, February 7, 1917, Box 4, Wiseman Papers.

10. Charles Warren to Rufus Isaacs (Lord Reading), October 12, 1917, Reading Papers, British Library, London, England. Warren also pointed to two other items that he drafted in this context. These were the Trading with the Enemy Act and a presidential proclamation allowing for the detention of enemy aliens.

11. The Administration would push to have the Espionage Act made even more draconian. The effort would result in the Sedition Act of May 1918, which amended the Espionage Act by specifying that anyone who used "any language intended to bring the form of government" or "the military or naval forces" into contempt "or disrepect" was subject to prosecution. Although the amendments further widened the scope of the Espionage Act, most prosecutions of anti-war activists during the last months of the war still proceeded under the original sections of the Act.

12. Albert Burleson to Woodrow Wilson, October 16, 1917, in Arthur S. Link, ed., Papers of Woodrow Wilson (Princeton: Princeton University Press, 1983), 44:390.

13. Warren, "What Is Giving Aid and Comfort to the Enemy," Yale Law Journal (January 1918) 27:337.

14. In 1918, Eugene Debs would be prosecuted for violating the Espionage Act while speaking in Canton, Ohio. The indictment argued that one could voice opposition to the war or the draft "unless the natural and reasonable tendency and effect" of a speech would have "consequences forbidden by law." Debs' conviction in a federal district court was upheld in a unanimous decision by the Supreme Court.

15. Chief Justice Lord Reading in Rex v. Casement (1916), cited in Charles Warren, "What Is Giving Aid and Comfort to the Enemy," Yale Law Journal (January 1918) 27:3.

16. Thomas Gregory to Senator Morris Sheppard, February 25, 1918, File 9-19 (General), Classified Subject Files, Justice Department Records, Record Group 60, National Archives.

17. Gregory to Sheppard, February 25, 1918, 9-19 (General), Classified Subject Files, Record Group 60, National Archives.

18. Proctor, Memorandum to the Attorney General, April 14, 1917, File 190470, Department of Justice Records, Record Group 60, National Archives.

19. Ex Parte Milligan; 71 U.S. 1, 1866.

20. New York Times, April 17, 1918.

21. Congressional Record, December 1, 2011.

22. Woodrow Wilson to Robert Latham Owen, February 1, 1918, in Arthur S. Link, ed., Papers of Woodrow Wilson (Princeton: Princeton University Press, 1983), 46:206. Owen's original letter is not in the Wilson Papers.

23. Wilson to Owen, February 1, 1918, in Papers of Woodrow Wilson, 46:206. Owen also proposed that "enemy aliens," that is recent immigrants from either Germany or the Austrian-Hungarian Empire, be prosecuted by military tribunals if charged with treason. The President was unsure of his position on this issue and referred it to Gregory. Nothing more was heard of the matter, as the Department of Justice asserted its authority to prosecute civilians, even aliens, on criminal charges.

24. New York Times, April 17, 1918. The wording of Chamberlain’s proposed legislation can also be found in Senate Committee on Military Affairs, Hearing, "Extending Jurisdiction of Military Tribunals," April 17, 1918, 65th Congress, 1st Session.

25. Charles Warren, "Spies and the Power of Congress to Subject Certain Classes of Civilians to Trial by Military Tribunal," American Law Review (March 1919): 53:201.

26. Warren, "Spies and the Power of Congress," American Law Review (March 1919): 53:206-7

27. Wheeler Bloodgood, Testimony, April 17, 1918, "Extending Jurisdiction of Military Tribunals."

28. Bloodgood, Testimony, April 17, 1918.

29. John Lord O’Brian, Oral History, Columbia University, pp. 229-30, 234. Warren wrote the Trading with the Enemy Act as well as the Espionage Act.

30. Bloodgood, Testimony, April 17, 1918, "Extending Jurisdiction of Military Tribunals."

31. The special election for Wisconsin's U.S. Senate seat held in April 1918 was a three-way race, with Irvine Lenroot, the Republican candidate, winning a plurality of votes. Berger received more than 25% of the vote, a very respectable result. He would go on to be elected to the U.S. House of Representatives in November 1918.

32. The five Socialist Party leaders were convicted of violating the Espionage Act in February 1919, and Berger received a twenty-year sentence. Ultimately, in January 1921 the U.S. Supreme Court overturned the convictions on the basis of the blatant bias evidenced by Judge Kenesaw Landis.

33. Bloodgood, Testimony, April 17, 1918, "Extending Jurisdiction of Military Tribunals."

34. New York Times, April 17, 1918.

35. New York Times, April 17, 1918.

36. New York Times, April 17, 1918.

37. Ralph Van Deman, Testimony, April 19, 1918, "Extending Jurisdiction of Military Tribunals."

38. Alfred Bettman to John Lord O’Brian, Memorandum, July 11, 1918, File 186701-39, Straight Numerical Series, Department of Justice Records, Record Group 60, National Archives. Bettman had looked at the MID files for Pittsburgh, but it is clear that his dismissal of the MID as an effective intelligence agency is obvious. Bettman was so disdainful of the MID that he questioned "what value there" was "to the Government in using the time and energy of these investigators" for "the accumulation of this sort of matter."

39. New York Times, April 23, 1918. Warren testified before the Senate Military Affairs Committee on April and he was forced to resign on April 19, 1918.

40. Thomas Gregory to William Gordon from the New York Times, April 23, 1918. The article gives the letter in full, but does not supply its date. It was written some time between April 19 and April 22, 1918.

41. Woodrow Wilson to Lee S. Overman, April 20, 1918, from the New York Times, April 23, 1918.