Over the past 10 days, there has been endless palaver over the significance of Wikileaked cables showing diplomats and public officials to be somewhat less than “these like saints appearing.”
But the real “leak” in the WikiLeaks affair is that it has forced the U.S. Government to drop its mask and reveal itself as a vindictive ogre that brings all its force to bear on hunting down a single man as a sacrificial prelude to extinguishing fearless, free speech, informed debate and open government.
This is not to say that the blood curdling shrieks from the press to “take out” Julian Assange by any means is not shameful itself. The howlings of the American
'mudia' make hyenas seem melodic sweetness.
But far more lethal to liberty are the quieter slitherings of those snakes who, manoeuvering through the tall grass of judicious sounding legalities, aim to criminalize the possession of unauthorized knowledge that is inconvenient to governmental impunity.
On 29 November Secretary of State Hillary Clinton “strongly”
condemned “the illegal disclosure of classified information” which she said, “puts people's lives in danger, threatens our national security, and undermines our efforts to work with other countries to solve shared problems....”
Seeking to “objectify” the harm, Clinton called the leak an “attack” on “America's foreign policy interests,” on the “international community” and on “negotiations that safeguard global security and advance economic prosperity.”
Also on 29 November, Senator Dianne Feinstein, who sits on the Intelligence Committee,
declaimed that,
"Whoever released this information should be punished severely. ... [C]learly more is needed to deter people from disclosing secret information. ...The Intelligence Committee is looking at whether legislation is needed to accomplish this goal."
That same day, Attorney General, Eric Holder held a
news conference at which he stated that the Wikileak,
“puts at risk our national security... [and] puts at risk individuals who are serving this country in a variety of capacities either as diplomats, as intelligence assets; it puts at risk our relationships with important allies around the world.”
Holder went on to declare that,
"To the extent that we can find anybody who was involved in the breaking of American law and who has put at risk the assets and the people that I have described, they will be held responsible,"
and
"To the extent there are gaps in our laws, we will move to close those gaps, which is not to say ... that anybody, at this point, because of their citizenship or their residence, is not a target or a subject of an investigation that's ongoing."
In straightforward English, the Justice Department was bearing down on foreign citizens living abroad.
Almost on the dime, Holder’s assurances earned a resounding “
Bravo!” from the Senate Intelligence Committee which, on 3 December, formally urged the Department of Justice “to bring criminal charges against WikiLeaks founder Julian Assange.” The Committee’s
letter stated,
“We believe that Mr. Assange’s conduct is espionage and that his actions fall under the elements of this section of law. Therefore, we urge that he be prosecuted under the Espionage Act.”
“If Mr. Assange and his possible accomplices cannot be charged under the Espionage Act (or any other applicable statute), please know that we stand ready and willing to support your efforts to ‘close those gaps’ in the law, as you also mentioned this week.”
In sum, the Obama Administration, egged on by Congress, is taking Bushian unilateralism one step further by going after anyone anywhere who puts American assets and relationships “at risk.”
This is the hubris of a raving lunatic.
From the dawn of civilization it has been understood that each independent village, city or state has exclusive jurisdiction over criminal conduct that takes place within its borders. For example, China does not prosecute a burglary that takes place in France, even if the victim or the perpetrator is Chinese. To maintain otherwise is to claim a right of intervention in the internal affairs of other states. It is the sort of claim made by empires and megalomaniacs that desire to rule the world.
Worse even than this claim of unilateral and universal jurisdiction is the basis on which it is being invoked.
There has been no claim of actual damage to the United States. None of the inflamed and ominous sounding reactions to the Wikileaks have pointed to more than a risk to some vague “asset” like our “relationships” with slimebag diplomats from other nations. Instead, the Administration proposes to criminalize and prosecute people who put American assets at risk.
After a quarter century of listening to sociologists, distressed mothers, sobbing victims and “at risk groups,” Americans may have forgotten that a “risk” is simply a conjectural possibility of harm. Some risks may be more probable or more direct than others but all risks are simply a speculative harm which might or might not actualize.
With this in mind, it can be seen that the Administration is seeking to prosecute and imprison anyone who is unfortunate enough to have done something that some official decides is potentially injurious to the interests of the State. This principle is not unheard of; it just happens to be a principle insisted upon by tyrants and totalitarian regimes.
The poisonous seed of this tyranny lies within the
Espionage Act of 1917 itself, which provides:
“Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, ... copies, takes, makes, or obtains, ... any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense... Shall be fined under this title or imprisoned not more than ten years, or both. "(18 U.S.C., § 793.)
Subsection(e) of the statue penalizes anyone who,
“having unauthorized possession of, access to, or control over any document, writing, [etc.]... willfully [and with the same purpose and intent] communicates, delivers, transmits the same to any person not entitled to receive it....”
Subsection (g) penalizes conspiracy to acquire defense information.
The manifest aim of the statute was to punish stealing codes or battle plans and passing them on to an enemy with whom we were at war. Unfortunately, the statute said far more than that and thus sprouted the usual copious weeds of jurisprudence.
No one disputes that governments are entitled to protect their data and documents, especially in wartime. But there are hundreds of innocent ways people can acquire or come into possession of such information. A person who takes a picture of a docked battleship or who finds a diplomat’s briefcase on an eleveated train is not necessarily a spy. Some destructive or anti-social purpose or intent is required before his conduct can be deemed to be what we call “spying”.
It is here that the statute opens Pandora’s Box because what will aid the enemy or should be forseen to be injurious to the country is highly speculative. The annals of war are rife with accounts of treasonous disclosures which the enemy ignored and of innocently trivial remarks that cost the battle.
In the context of true and actual spying, the facts and circumstance of the case are what end up solidifying a very liquid legal definition. But when the context involves disclosure of information for the purpose of informing the citizenry of a democratic country what their government is about, then the liquid definition turns into a cannon ball fired at the First Amendment.
Some in the pundit-press seem to think that the WikiLeaks affair is “resolved” by the so-called Pentagon Papers Case (
New York Times Co. v. United States (1971) 403 U.S. 713.) Actually not.
In that case, the Nixon Administration did not seek to punish the
Times for unauthorized possession, or for
having compromised national security, or for the violation of any statute. Instead, it sought to censor news on the basis that the president had an "inherent" power to
prevent the publication of any information which "could," "might" or "may" compromise "national security." (
Id., at pp. 718, 725.)
The claim was so over-the-top that virtually no one was persuaded. But over-the-top cases do not make good law, since everyone supposedly agrees that the minimum standard of anything is something more than plain crazy. Unfortunately, although eight justice agreed that the
Times could not be restrained from publishing the papers on such a basis, they could not agree why.
The result was a collection of OpEd pieces from the bench, which all together established nothing more specific than that a president cannot go about silencing people at will. Whether the Government can
punish people for possessing or disseminating official information in violation of the Espionage Act is a different issue.
The call to criminalize WikiLeak’s conduct squarely raises that statute’s twin problems concerning possession and intent.
In any case brought under the statute, the inceptional issue concerns the meaning of “having unauthorized possession.” There is little question that the Act applies to the original unauthorized taker (in this case, the alleged Pvt. Bradley Manning).
But (assuming digital-documents are included) does the Act apply to Julian Assange who only received the information or to the New York
Times who supposedly retrieved it third-hand from the cyber curb-side where Wikileaks dumped it?
There is every likelihood that the Act will be held to apply to anyone,
within the United States, who receives property he knows to be stolen. Such a result would conform to long-standing principles concerning theft and knowing possession of stolen property.
Asserting "long arm" jurisdiction over a non-citizen, non-resident whose conduct took place abroad involves a question on a different order of magnitude. Whether by “implication” within the statutory terms or by explicit amendment, the Government will assert a “nexus” on the basis of which jurisdiction can be asserted.
The obvious prosecution argument is that, when it comes to cyber-space, there is no "here" there so that in so far as data-flows are concerned, all “there” is here. If the courts accept this sort of “nexus” argument, Assange’s conduct in receiving the digital documents will be deemed criminal under U.S. law.
In all events, the Administration has given notice that it will seek to close any leaky loophole by amending the statute so that U.S. jurisdiction will be asserted to follow the trail of U.S. property. Traditionally, the Supreme Court has deferred to Congress on such issues.
Apart from the receiving and jurisdictional questions, the primary issue concerns
intent. As noted the statute requires that the “obtaining” of information be done with the intent to injure the United States or with reason to believe that the information “is to be used” to injure the United States. Did that requirement (phrased in the present tense) mean that the accused had to have known that the information was going to be used imminently to actually harm the United States or did it mean that he should have known that the information might be used to the detriment of the United States?
The first alternative requires strong evidence of actual knowledge and objective harm, which was why Secretary of State Clinton was all ablather about “attacks” on the United States, even though she really could not point to any concrete harm beyond “undermining” diplomatic conversations concerning security and prosperity. Attorney General Holder wasn’t up to the effort, and simply rested on the second alternative which allows prosecution based on free-form risk speculation.
Thus, the critical question affecting the publication and disclosure of leaked information will concern intent, harm and whether or to what extent a so-called public right-to-know trumps any actual or prospective harm to the Government.
Surprisingly, after close to a century of litigation, the Supreme Court has not definitively ruled on what one must need to intend or know in order to be guilty of unauthorized possession or dissemination of classified information.
The answer to these questions involves judicial policy of the highest order because they reach those transcendent issues that inform the very nature of our society.
The U.S. Constitution recognizes and enshrines certain paradoxes. For example, it allows magistrates to be impeached and removed from office, despite their democratic election, on the basis of “high crimes and misdemeanors” which need not be statutory crimes or misdemeanors at all. The provision derives from the nefarious subversion that was entailed in King James II’s declared purpose (1688) to raise his son and heir as a Catholic, thus sounding a death knell for the Church of England.
The Constitution also allows people the right to keep arms for the evident and originally recognized purpose of physically defending against the national government should the need arise. From a european Civil Law perspective, such a provision is a logical absurdity; but, as Justice Holmes wrote, the “life of the common law is not logic but experience.”
On par with such provisions, is the First Amendment which states categorically that Congress shall make "no law" abridging freedom of speech. Nothing in that provision conditions speech on its being “lawful” or “properly informed” or free from unauthorized knowledge. The reason it does not contain such qualifiers is that they
a fortiori negate the very freedom supposedly guaranteed. The framers of the Bill of Rights understood very well the meaning of “no law” and the political value judgements it incarnated. The question today is whether our current Supreme Court will be informed with the correct and proper memory.
The most likely result is that the courts will avoid grand pronouncements along the lines of freedom trumping security. Instead, they will seek to decide the issue on narrow grounds defining intent and harm. A ruling on such a basis will avoid theoretical jurisprudence in favor of practical rules which do almost as well. This niggardly mode of decision is entrenched in Anglo-American law and not without good reason.
In a curious way, the “niggardly” question brings the nastiness of what the Government proposes into sharper focus than broad brush palaver. Focusing on intent, knowledge, risk and harm forces us to look closely at the artful and subtle devices tyrants use to oppress and punish their subjects.
No King ever sent his men to kick down doors claiming a right to do evil. Rulers always justify their acts by piously claiming to do good, which inevitably ends up entailing a need to protect "honest citizens" against the specter of lurking evils.
It was thus that, almost immediately upon passage of the 1917 Espionage Act, Congress added the so-called “
Sedition Act” of 1918 which prohibited various forms of speech including "any disloyal, profane, scurrilous, or abusive language about the form of government of the United States... or the flag of the United States...” The Act was an immediate disaster and was repealed in 1921; but not before it had spawned some bad judicial weeds.
Pursuant to the Act, the Post Office Department sequestered any “matter which is calculated to interfere with the success of... the government in conducting the war." Lower courts followed suit. For example, in
United States v.
Motion Picture Film "The Spirit of 76," (SD Cal 1917) 252 F 946 , a federal court (in anticipation of Hillary Clinton) upheld the suppression of a film about the Revolutionary War on the grounds that the depiction of cruelty by British soldiers might undermine popular support for a wartime ally. Oh the risk!
The constitutionality of the Act came before the Supreme Court in
Schenck v. United States, (1919) 249 U.S. 47, where it was held that the Government could prosecute an anti-war activist who sent anti-draft pamphlets to draft age men. Justice Oliver Wendel Holmes who, despite his popularity and experience, was never known for careful judicial craftsmanship, opined that Shenck’s activity constituted a “
clear and present danger” to the Government. (
Id., at p. 51.) He added, uselessly and cryptically, that free speech did not include the right to shout “fire” in a crowded theater. Like flooding sludge, the phrase passed into public consciousness and has muddled thinking ever since.
The difficulty with the
Schenck formula is that it failed to preclude speculative harm as a basis for prosecution or for invoking state secrecy. To repeat, the word “danger” refers to a risk, a potential harm, some bad thing that could possibly arise in the future. The adjective “present” does not make the harm less improbable or remote because it modifies danger and not the harm lurking within the danger. In other words, any danger is always "present" precisely because a danger is simply the present prospect of future harm. The real question concerns the degree, probability and imminence of the potential harm. Holmes did not see this.
Neither did the rest of the High Court. In
Whitney v. California, (1927) 274 U.S. 357, the Court made matters worse by holding that "the Constitution d[id] not confer an absolute right to speak, without responsibility, whatever one may choose," and government had the power to punish those who "abused" their rights of speech "by utterances inimical to the public welfare,
tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow." (
Id., at p. 371.) In other words, if words had an arguable "bad tendency" they could be punished.
The reason matters
could be made worse is that “bad tendency” is precisely what lurks within the “clear and present danger test.” Boiled down to its essence, that test is no more than ominous sounding rhetoric covering up the small beer of tenuous conjecture and amorphous ills.
However, the Supreme Court has not been entirely blind to the problem. Even Justice Holmes had reservations about his rule and dissenting opinions in subsequent cases attacked the formula as insufficiently precise. In
Dennis v. United States (1951) 341 U.S. 494, the Court reviewed its own jurisprudence and concluded that the "clear and present danger" test was really one of degree "although it is not clear whether 'degree' refers to [a] clear and present danger or evil." (
Id., at p. 505.)
In the end,
Dennis upheld the Holme's test but re-defined it so as to require a court to weigh "the gravity of the 'evil,' discounted by its improbability." (
Id., at pp. 510, 515.) This boiled down to asking "how bad? how close?" which, as a "test," did not provide much of an answer.
Finally, the Court more or less made up its mind in
Brandenburg v. Ohio (1969) 395 U.S. 444, in which it held that government could not constitutionally punish abstract advocacy of force or illegal action. Such speech could be punished only when it was intended to incite
imminent lawless action and was in fact likely to incite or produce such action. Clearing up the sludge, Justice Douglas went on to explain that the reason it is unlawful to shout fire in a crowded theater is because in that specific situation "speech is brigaded with action." (
Id., at p. 456.)
Otherwise, he said, "[t]he only difference between the 'expression of an opinion' and an 'incitement' ... is the speaker's enthusiasm for the result. (
Id., at p. 452.) Douglas could "see no place in the regime of the First Amendment for any 'clear and present danger' test,
whether strict and tight as some would make it." (
Id., at p. 454.) With that classic frankness which made him equally loved and resented, Douglas concluded by observing that criminalized "threats were often loud but always puny and made serious only by judges so wedded to the
status quo that critical analysis made them nervous." (
Ibid.)
None of the sedition and seditious syndicalism cases from
Schenck to
Brandenburg dealt with the Wikileaks problem under the original or current Espionage Act, and they are technically not controlling as precedent. However, by dealing with the question of the intent and harm necessary to punish speech, they provide a rule for the analogous question of the intent and harm necessary to punish the unauthorized obtaining and dissemination of information.
The
Brandenburg approach was in fact followed in the espionage case against Steven J. Rosen and Keith Weissman, employees of the American Israel Public Affairs Committee (AIPAC), who were charged with conspiring to obtain classified military information which they then passed on to the Israeli government and The Washington
Post.
The Justice Department dismissed the case after the District Court ruled that prosecutors were required to show that the defendants actually knew that the information they allegedly disclosed would in fact harm the United States or help a foreign government. (
U.S.A. vs. Rosen and Weissman (2009) Crim. No. 1:05CR225) Such a rule, while neither sonorous rhetoric nor satisfactory to strict First Amendment constructionists like Justices Douglas and Black, still serves to protect free speech by requiring more than government annoyance or outrage for conviction.
But while Congress was resoundingly silent in face of the AIPAC leaks, it has been full of outraged demands when it comes to Julian Assange and WikiLeaks.
In an interview with Fox News (12/7/2010) Senator Joseph Lieberman opined that not only did WikiLeaks violate U.S. law under the Espionage Act, but The New York
Times itself was on shaky legal ground for republishing some of the cables. Given the decision in the Pentagon Papers Case, Lieberman was correct. However, he went on to state,
“To me, The New York Times has committed at least an act of bad citizenship, but whether they have committed a crime, I think that bears very intensive inquiry by the Justice Department."
Lieberman’s remarks signalled clearly that, once again, the outcry from Congress is for a law against “sedition.”
Did Senator Lieberman mean that the law should seek to punish some sort of unspecified "bad citizenship" or that "bad citizenship" (whatever that might be exactly) should be subject to equally vague sanctions or pretextual prosecutions under other statutes?
Outlawing vague detrimental tendencies which put equally vague things “at risk” is the chief weapon in the arsenal of tyranny. Section 13 of the
Reich Editorial Law (4 October 1933) which required editors in Nazi Germany to "keep out of the newspapers anything which: ....
tends to weaken the strength of the German Reich, outwardly or inwardly, the common will of the German people, the German defense ability, culture or economy; or [which] ... offends the honor and dignity of Germany; [or] ... makes [a person] ridiculous or contemptible;" or ... is immoral for other reasons." (1933
Reichsgesetzblatt, Part I, page 713.)
Laws for the protection of people is the reason we live in societies. Laws for the protection of the State is what renders society a prison.
But more than providing an occasion to revive laws against sedition, the WikiLeaks affair has presented the neocon security network with the excuse they have been waiting for to bring the internet under government surveillance and control.
In fact, in June of 2010, Senator Lieberman introduced the ‘‘
Protecting Cyberspace as a National Asset Act of 2010’’
In essence, the 197 page amendment to the
Homeland Security Act of 2002, designates the internet as part of America’s “critical infrastructure” and would establish a National Center for Cybersecurity and Communications (NCCC) at the Department of Homeland Security to conduct “risk-based” assessments of the internet, as well as to collect and share information with other federal agencies in order to develop and implement, in "cooperation" with the private sector, such measures as would “increase the security and resiliency of cyberspace.”
According to the bill, America’s critical “information infrastructure” includes the internet, telecommunications networks, computer systems, embedded processors, controllers, frameworks, programmable electronic devices and any associated hardware, software or data.
It encompasses not only government networks
per se but any information structure “owned, operated or controlled” in the United States” and any structure
outside the United States “the disruption of which could result in national or regional catastrophic damage in the United States.”
In his remarks introducing the bill, Lieberman stated that "the internet" was "under constant attack" putting “our economic security, national security and public safety ... at risk from new kinds of enemies -- cyber-warriors, cyber-spies, cyber-terrorists and cyber-criminals.”
Co-Sponsor, Senator Susan Collins, raised the specter of a “cyber 9/11” and stated that “our enemies have identified cyber space as an ideal 21st century battlefield” and “could cause billions of dollars in damage and put thousands of lives in jeopardy.”
Just as no one disputes the legitimacy of detecting and arresting spies, no one disputes the legitimacy of taking internal, technical steps to prevent hacking or subterfuge of the internet’s infrastructure. But those reasonable and limited steps are not what the bill is about.
The Lieberman/Collins Bill was none other than a legislative implementation of the “Cyber War” strategies set out in the infamous policy paper of the neocon Project for a New American Century, entitled
Rebuilding America’s Defenses: Strategy, Forces and Resources for a New Century (September 2000). One of the paper's proposed, core “defense” strategies was “Control of the new ‘international commons’ of space and cyberspace.” (
Rebuilding &c., p. v.)
“Over the next several decades,” the paper stated, “the United States must ... divine ways to control the new ‘international commons’ of space and cyberspace, ...” (
Id., p. 7.) This would be "key to world power in the future [since] an America incapable of protecting its interests or that of its allies in space or the infosphere will find it difficult to exert global political leadership." (
Id., at p. 51.) The policy paper concluded its thoughts with a
Strangelovian drool that “[t]aken together, the prospects for space war or ‘cyberspace war’ represent the truly revolutionary potential inherent in the notion of military transformation." (
Id., p. 57.)
It also represents a truly revolutionary
constitutional transformation.
The sudden barrage of DNS attacks on WikiLeak portals speaks, with cynical irony, for itself. The arrest of Julian Assange on flimsy sexual charges goes to show the length to which the United States Government is prepared to hound, pressure and prosecute those who have offended its impunity. But even more than the persecution of Assange under a tissue of law, is the clear and imminent danger of irreparable harm to constitutional liberty.
Americans should not ignore what is slithering beneath purview in the tall legal grass. Laws against sedition whether National Socialist or Patriotically American are always framed so as to outlaw vague and speculative risks, dangers and tendencies in the name on national safety.
But liberty, said James Madison, is like air. One would no sooner abolish oxygen because it gives life to fire than one would abolish freedom because it may be abused. (
Federalist Paper No. 10.) Rather than reinforce the courage required to live in a free world, tyrants of whatever stripe prey on fear.
Neither should Americans repose in confidence that the Supreme Court will protect their freedoms. As Justice Douglas wrote in
Brandenburg the Court's track record in sedition cases had shown little inclination to value liberty over threats or inconveniences to security or the
statu quo.
The imposition of sanctions, whether formal or informal, against the dissemination of allegedly harmful information is the cornerstone on which State control of expression and opinion is erected. The securitization of social intercourse whether on the green or in cyberspace is civic death.
©Woodchip Gazette, 2010
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