WikiLeaks about to hit the fan

Even if we accept that the Western democracies are bad when it comes to secrecy, their badness doesn't come close to that of the states specified in WikiLeak's original mission statement, and so we can at least say that Assange's aim is off.

WikiLeaks: Espionage? Journalism? Something else?
(Analysis, The Associated Press, December 1, 2010)

WASHINGTON — The government's decisions about whether or how to bring criminal charges against participants in the WikiLeaks disclosures are complicated by the very newness of Julian Assange's Internet-based outfit: Is it journalism or espionage or something in between?

Justice, State and Defense Department lawyers are discussing whether it might be possible to prosecute the WikiLeaks founder and others under the Espionage Act of 1917. They are debating whether the Espionage Act applies, and to whom. Other charges also might be possible, including theft of government property or receipt of stolen government property.

Rep. Peter King of New York called for Assange to be charged under the Espionage Act and asked whether WikiLeaks could be designated a terrorist organization.

But Assange has portrayed himself as a crusading journalist. He told ABC News by e-mail that his latest batch of State Department documents would expose "lying, corrupt and murderous leadership from Bahrain to Brazil." He told Time magazine he targets only "organizations that use secrecy to conceal unjust behavior."

Longtime Washington lawyer Plato Cacheris, who represented CIA official Aldrich Ames and other espionage defendants, said yesterday that Assange could argue he is protected by the First Amendment, a freedom of the press defense. "That would be one, certainly," Cacheris said.

Constrained by the First Amendment's free-press guarantees, the Justice Department has steered clear of prosecuting journalists for publishing leaked secrets. Leakers have occasionally been prosecuted, usually government workers charged under easier-to-prove statutes criminalizing the mishandling of classified documents.

But two leakers have faced Espionage Act charges, with mixed results.

The last leak that approached the size of the WikiLeaks releases was the Pentagon Papers during the Nixon administration. The Supreme Court slapped down President Richard Nixon's effort to stop newspapers from publishing those papers. But the leaker, ex-Pentagon analyst Daniel Ellsberg, was charged under the Espionage Act with unauthorized possession and theft of the papers. A federal judge threw out the charges because of government misconduct, including burglary of Ellsberg's psychiatrist's files by the White House "plumbers" unit.

The Reagan administration had more success against Samuel Loring Morison, a civilian intelligence analyst for the Navy and grandson of a famous U.S. historian. Morison was convicted under the Espionage Act and of theft of government property for supplying a British publication, Jane's Defence Weekly, with a U.S. satellite photo of a Russian aircraft carrier under construction in a Black Sea port. Dozens of news organizations filed friend-of-the-court briefs supporting Morison because he was a $5,000-a-year part-time editor with Jane's sister publication and thus arguably a journalist. Morison was sentenced to two years in prison.

But WikiLeaks has entered a space where no journalist has gone before. News organizations have often sought information, including government secrets, for specific stories and printed secrets that government workers delivered to them, but none has matched Assange's open worldwide invitation to send him any secret or confidential information a source can lay hands on.

Is WikiLeaks the leaker or merely the publisher?

"The courts have been somewhat reluctant to draw a line of demarcation between what we call mainstream media and everyone else," said Washington attorney Stan Brand. "If these people are publishing and exercising First Amendment rights, I don't know why they're less entitled to their First Amendment rights to publish."

But at a Nov. 29 news conference, Attorney General Eric Holder contrasted WikiLeaks with traditional news organizations, which he said acted responsibly in the matter even though several posted some classified material. Some news organizations consulted with the government in advance to avoid printing harmful material; Assange has claimed his efforts to do likewise were rebuffed.

"One can compare the way in which the various news organizations that have been involved in this have acted as opposed to the way in which WikiLeaks has," said Holder.

Some see openings for the government.

Assange "has gone a long way down the road of talking himself into a possible violation of the Espionage Act," First Amendment lawyer Floyd Abrams said on National Public Radio, noting that Assange has said leaks could bring down a U.S. administration.

Washington lawyer Bob Bittman expressed surprise that the Justice Department had not already charged Assange under the Espionage Act and with theft of government property over his earlier release of classified documents about U.S. military operations in Iraq and Afghanistan. Bittman said it was widely believed those disclosures harmed U.S. national security, in particular U.S. intelligence sources and methods, meeting the requirement in several sections of the act that there be either intent or reason to believe disclosure could injure the United States.

"These are not easy questions," said Washington lawyer Stephen Ryan, a former assistant U.S. attorney and former Senate Government Affairs Committee general counsel. Ryan said it would be legally respectable to argue Assange is a journalist protected by the First Amendment and never had a duty to protect U.S. secrets.

But Ryan added, "The flip side is whether he could be charged with aiding and abetting or conspiracy with an individual who did have a duty to protect those secrets."

On the question of conspiracy there's a legal difference between being a passive recipient of leaked material and being a prime mover egging on a prospective leaker, legal experts say.

Much could depend on what the investigation uncovers.

Army Pfc. Bradley Manning is being held in a maximum-security military brig at Quantico, Va., charged with leaking video of a 2007 U.S. Apache helicopter attack in Baghdad that killed a Reuters news photographer and his driver. WikiLeaks posted the video on its website in April.

Military investigators say Manning is a person of interest in the leak of nearly 77,000 Afghan war records WikiLeaks published online in July. Though Manning has not been charged in the latest release of internal U.S. government documents, WikiLeaks has hailed him as a hero.

Another obstacle would be getting Assange to the United States. His whereabouts are not publicly known.

In France, Interpol placed Assange on its most-wanted list yesterday after Sweden issued an arrest warrant against him as part of a drawn-out rape probe involving allegations he has denied. The Interpol "red notice" is likely to make international travel more difficult for him.

But even if Assange were charged and arrested in a country that has an extradition treaty with the United States, there could be problems extraditing him. The Espionage Act carries a maximum penalty of death, and nations with no death penalty often refuse to send defendants here if they face possible execution.

One renowned First Amendment and national,security lawyer, Duke law professor emeritus Michael Tigar, urged caution. "The U.S. reaction to all of this is rather overblown," Tigar said. "One should hesitate a long time before bringing a prosecution in a case like this. The First Amendment means that sometimes public expression makes the government squirm. ... That diplomats collect information, and are sometimes brutally candid, comes as no surprise to anybody."

One renowned First Amendment and national,security lawyer, Duke law professor emeritus Michael Tigar, urged caution. "The U.S. reaction to all of this is rather overblown," Tigar said. "One should hesitate a long time before bringing a prosecution in a case like this. The First Amendment means that sometimes public expression makes the government squirm. ... That diplomats collect information, and are sometimes brutally candid, comes as no surprise to anybody."

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In France, Interpol placed Assange on its most-wanted list yesterday after Sweden issued an arrest warrant against him as part of a drawn-out rape probe involving allegations he has denied. The Interpol "red notice" is likely to make international travel more difficult for him.

An Interpol Red Notice is not an international arrest warrant.

These Interpol 'Red Notices' represent only a tiny fraction of the number of red notices issued by Interpol.

The persons concerned are wanted by national jurisdictions (or the International Criminal Tribunals, where appropriate) and Interpol's role is to assist the national police forces in identifying or locating those persons with a view to their arrest and extradition.

These red notices allow the warrant to be circulated worldwide with the request that the wanted person be arrested with a view to extradition.

A distinction is drawn between two types of red notice: the first type is based on an arrest warrant and is issued for a person wanted for prosecution; the second type is based on a court decision for a person wanted to serve a sentence.

How do you feel about Daniel Ellsberg's position that the oath to protect the constitution supercedes the duty to protect lies?

I'd be really interested if you shared your views on that article, wandel.
Are the Wikileaks espionage, journalism, or something else, in your opinion?

BillW wrote:

There is a centrist point - do you publish the code to the doomsday button?

The solution to any problem is almost never to do the exact opposite of what you were doing before.

Cycloptichorn

I think it needs to be stated yet again that an Interpol red notice does NOT imply guilt of the person whose apprehension has been sought. The person is considered innocent until any charges are proved against them in a court of law.

How do you think the release of this massive amount of documents have been handled better than it has been handled?

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Think back to before there was a WikiLeaks. If I asked you how to obtain the degree of transparency you desire in our society, are you going to tell me that your answer would have been to wait for a group of hackers to come along and collect sensitive information and then release it as their leader sees fit? I doubt it.

No, of course, not.
I would far have preferred that my government had been far more transparent & honest in the first place.
In other words, act as a government which is far more accountable to the people who elected it. That's how governments are supposed to work in a democracy.
If it had acted in this way then there would be no need for leaks for us to be properly informed. Simple as that.

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It seems that the stigma grows that all that is secret is shameful, and that's bullshit.

I'd argue that far too much unnecessary secrecy has been the problem.
I have no problem, for example, with sensitive internal security measures to protect the public remaining secret. Why would I?
The "stigma", as you put it, is more that we don't know nearly enough about what our governments are saying & doing.Things that we are entitled to know.
That is why some of the previously secret information is causing those governments such severe embarrassment. In some instances it is now clear that we have been lied to. Governments saying one thing to its citizens, while doing entirely different things. Can you not understand that this might a source of concern, or alarm?

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... I'm saying that in your lessons-learned great open society, obviously there is no need for any state to ever keep their cables private. So why doesn't some state stand up an be the first to hold up this great torch of the open society and say: "We heard you world! Here's the key to the vault!"

I somehow suspect that the truth is rather that no state will do so. Better to play damage control and suggest that diplomacy is only dirty when the US is involved.

Of course no state will do so. And we will never have access to the whole truth.

The point is, these leaks are about our governments' dealings with the most powerful government in the world today. Which happens to be the US at the moment. In the future, leaks might be about our governments' dealings with China ..

If any of you choose to to see the reactions to the leaks from those of us from other countries as purely "anti-US" then you'd be wrong. Well definitely in my case, anyway. It is not just a convenient opportunity to bash the US. It is about finally finding out about our own have said & done, about (at times) our government's duplicity, about the integrity of our governments & how they have represented our interests with the most powerful & influential government in the world today.

I would argue that our concerns are very valid ones, in the light of what we are learning from official documentation. It shouldn't be all that surprising reactions to the Wikileaks from countries like say, Australia, are often quite different to the reactions from Americans. It's because the issues & concerns are quite different to those raised in the US. What is in the US government's interests, in other words, is not automatically identical to our interests.

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You post illustrates the public's relationship with the information. Having now the existence of WL, you've come to assume that leaks are the way things could be prevented.

Not at all, Art.
I said (as you quoted)

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I would have welcomed those leaks, if they had occurred.
They might have made a real difference.

I haven't said that leaks would prevent anything at all.


(I wish you'd read a bit more carefully & stop putting words into my mouth.)

To me they are journalism, but irresponsible journalism. Wikileaks needs to have a better designed set of standards. I agree with freedom of information, but ALL of our freedoms require responsibility.