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The Espionage Act And WikiLeaks - Would it End Journalism As We Know It?

Catz Part Deux

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Adam Serwer Archive | The American Prospect

If WikiLeaks is prosecuted under the Espionage Act as it currently exists, then no journalistic institution or entity is safe. The idea that anytime that a journalist obtains a document that has "information related to the national defense" that could be used "to the injury of the United States" they could be subject to prosecution would destroy national-security journalism as it currently exists. Also frightening is the reality that government officials looking to skew public debates one way or another regularly leak information to the press, so the government would really only be prosecuting people for publishing leaked information they didn't want leaked.

I think there's this idea that because the New York Times and the Washington Post are treasured journalistic institutions the government wouldn't dare engage in the kind of coercion it has leveled so effectively against Assange, and that even if he were prosecuted under an archaic unconstitutional law like the Espionage Act, he's a scary foreigner and there's no way that Americans would be treated the same way. But it really wasn't that long ago that Republicans like Bill Kristol and Rep. Peter King were talking about the NYT in the same kind of language they're using to describe Assange.

Sen. Joe Lieberman also called for Assange to be prosecuted, but he let slip that he thought other journalistic outlets could be held similarly "accountable," stating, "To me the New York Times has committed at least an act of, at best, bad citizenship, but whether they have committed a crime is a matter of discussion for the Justice Department." Lieberman recently introduced the SHIELD Act along with Sen. Scott Brown, which would amend the Espionage Act to make it easier to prosecute Assange.

Is Julian Assange a nasty foreign person with crappy sexual ethics? Probably.

Would prosecuting him compromise the ability of the press to hold government accountable to the people? Almost certainly.

That's a far larger and more detrimental outcome than anything that Assange is capable of causing by leaking our information.
 
Adam Serwer Archive | The American Prospect

Is Julian Assange a nasty foreign person with crappy sexual ethics? Probably.

Would prosecuting him compromise the ability of the press to hold government accountable to the people? Almost certainly.

That's a far larger and more detrimental outcome than anything that Assange is capable of causing by leaking our information.

This is one of those times where we're damned if we do and damned if we don't. I doubt anyone has much sympathy for Assange -- and most would like to see him prosecuted for something. On the other hand, what about freedom of speech?

Surely we have the right to protect our state secrets. Surely we do. That's on the one hand.

On the other hand, how does our Fourth Estate go about letting the people know about real abuse, real dirty tricks? If the government can easily make a case of espionage against a news outlet (or anyone, for that matter), we will lose the safety net that a free press provides. It's kind of chilling, when one thinks about it.

So. What's the answer?

What if the information this guy put up named all of our foreign operatives? Gave their home addresses? Posted their pictures? What if it posted strategic military information re Afghanistan and Iraq? Cutting edge military technology?

It's a very difficult puzzle. When one has to "write a law" surrounding these things, it becomes very difficult. Sort of like pornography. It's hard to define, but we all pretty much know it when we see it. Not a great example, but the only one I could think of. And the same problem applies, doesn't it? Your idea of pornography is different than mine. The government's idea of "this crosses the line" is different from mine, too.

One of the answers simply has to be holding SIPRNet officials responsible for this debacle. We hear nothing about the stupid management that allowed this lowly military guy to copy secret stuff on a thumb drive and walk out the door. Somebody(ies) ought to go to jail....and it shouldn't just be what's 'is name.
 
There has to be a reasonable middle ground here. Not everything released actually hurt. But I will say this, our leaders have to know the world has changed. They can't be flippant in emails, and most documents are far too accessibale today to someone who wants them. If wikileaks could get these, so could someone else, and that means the threat is there no matter what journalist do. Some responsibility has to be with those who cared for these documents and were unable to prevent them from being obtained.
 

Not even sure that the espionage act can be used, since the "act" was done first off all by someone else and not Assange, and that Assange placed his site on international servers and not in the US. How can it be espionage if the person being charged was not even in the US when the act was supposedly done?

Since when is "spying" on the US in say Sweden illegal in the US? That would mean that every country on the planet and millions of police and security agents would be liable under the espionage act....talk about cutting off the US with the treat of being arrested because you happen to work for another countries government.. "you looked at our embassy in Copenhagen when you were on vacation, hence you must be a spy... off to Gitmo with you"...Yes it is exactly that what we are talking about.

Is Julian Assange a nasty foreign person

Based on what? That he published embarrassing material on the US state department and/or the US? It happens all the time and often by American's.. so why should he be "nasty"? Personal experience? :)

with crappy sexual ethics?

So has most of the teenage population in the US considering the teenage pregnancy rate. Hell, half of the Republican congress have questionable sexual ethics.. from the Republican Congressman hunting Congress pages to the US senator looking for sex in airport toilets, to the governor who had a mistress in Argentina.

Would prosecuting him compromise the ability of the press to hold government accountable to the people? Almost certainly.

That was compromised long ago. October 7th, 1996 was a key date... look it up, but it started before that.. Gone are the days of investigative journalism that keeps government and politicians in check. The best we can hope for is The National Enquirer now days and that is sad.

Also the US media and companies gets bullied often by politicians and corporations into silence or into following a certain line. It happened during the second Iraq war, where the US media on mass ate the Bush administration's talking points without any critical eye. Those few that did raise questions were ridiculed and called un-patriotic and marginalised.. It happened during this case, when Amazon got bullied by a US senator to take wikileaks off its servers..

When TV stations start to actively promote political movements or politicians.. then you have lost all hope for any fairness or truthfulness in the media organisation.

That's a far larger and more detrimental outcome than anything that Assange is capable of causing by leaking our information.

It would be the final nail in the coffin so to say.. When media personalities are calling for the assassination of a foreign citizen and are not kicked off the air or/and arrested for inciting to violence, then you have a serious problem... especially when it is happening in such a lopsided way... are you right wing.. no problemo... are you left wing.. then you are un-patritoic and terrorist.
 
The major distinction I would draw between Assange and a government whistleblower is that the whistleblower leaks information to expose wrongdoing, which is completely legitimate in my view. Assange leaks state secrets just for the hell of it...I mean, is the world really a better place because everyone knows that US diplomats in Turkey don't like Tayyip Erdogan? That's just embarrassing to everyone involved and doesn't do anything to advance any specific policy. I don't see how society benefits from most of this stuff; there was very little in the way of actual wrongdoing that was exposed. If the worst thing that Assange has on the State Department in 300,000 documents is that US spies tried to steal Ban Ki-Moon's credit cards, I think the US government actually comes across looking great.

Maybe the distinction between whistleblowing and random leaking needs to be codified into law, if it isn't already. Perhaps the Espionage Act could be modified to protect people who publicize secret information who are motivated by a desire to expose wrongdoing or potential wrongdoing, while still prosecuting douchebags like Assange who do it for personal fame/glory/vendettas.
 
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One of the answers simply has to be holding SIPRNet officials responsible for this debacle. We hear nothing about the stupid management that allowed this lowly military guy to copy secret stuff on a thumb drive and walk out the door. Somebody(ies) ought to go to jail....and it shouldn't just be what's 'is name.

That is the actual and ONLY answer. There would have been nothing for Assange to publish if the information had been handled properly.

There is also adopting a pragmatic response of being grateful that at least we learned about these holes through the release of classified, and not top secret, material.
 
The major distinction I would draw between Assange and a government whistleblower is that the whistleblower leaks information to expose wrongdoing, which is completely legitimate in my view. Assange leaks state secrets just for the hell of it...I mean, is the world really a better place because everyone knows that US diplomats in Turkey don't like Tayyip Erdogan? I don't see how society benefits from most of this stuff; there was very little in the way of actual wrongdoing that was exposed. If the worst thing that Assange has on the State Department in 300,000 documents is that US spies tried to steal Ban Ki-Moon's credit cards, I think the US government actually comes across looking great.

Or we could consider being much stricter about protecting information that is actually top secret, and declassifying much of what is currently classified. See, I think the primary response that should come from this is an INTERNAL response of using this situation to understand how we can improve our current status of collection of intelligence, and not as an EXTERNAL, heavy handed response directed at Assange.
 
Or we could consider being much stricter about protecting information that is actually top secret, and declassifying much of what is currently classified. See, I think the primary response that should come from this is an INTERNAL response of using this situation to understand how we can improve our current status of collection of intelligence, and not as an EXTERNAL, heavy handed response directed at Assange.

No reason we can't do both. Assange is different from both the New York Times or a shady go-between who receives leaked documents. For (what I think is) the first time in history, this is a guy who has created a popular method of transmitting state secrets with a promise to publish them. So it's not just the CURRENT leak that's the problem, it's the fact that this kind of thing will CONTINUE to happen as long as Wikileaks is allowed to operate. Assange has neither the anonymity of a shady character who receives government secrets in a dimly lit parking garage, nor the responsibility of mainstream media outlets like the New York Times.

Obviously the US is going to need to revise its secrecy classifications in light of this breach of security. But it also should not allow a popular website to publicly encourage and facilitate the publication of state secrets.
 
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No reason we can't do both. Assange is different from both the New York Times or a shady go-between who receives leaked documents. For (what I think is) the first time in history, this is a guy who has created a popular method of transmitting state secrets with a promise to publish them. So it's not just the CURRENT leak that's the problem, it's the fact that this kind of thing will CONTINUE to happen as long as Wikileaks is allowed to operate. Assange has neither the anonymity of a shady character who receives government secrets in a dimly lit parking garage, nor the responsibility of mainstream media outlets like the New York Times.

Obviously the US is going to need to revise its secrecy classifications in light of this breach of security. But it also should not allow a popular website to publicly encourage and facilitate the publication of state secrets.

You don't consider that there is a place/need for this?
 
You don't consider that there is a place/need for this?

Sure, there's a need for publishing SOME secrets: in order to expose wrongdoing or potential wrongdoing. But that isn't what Assange has done, he's just dumped the documents into the public and let the chips fall where they may. That isn't appropriate, and if we need to rewrite the Espionage Act to draw that distinction more clearly, we should.
 
Sure, there's a need for publishing SOME secrets: in order to expose wrongdoing or potential wrongdoing. But that isn't what Assange has done, he's just dumped the documents into the public and let the chips fall where they may. That isn't appropriate, and if we need to rewrite the Espionage Act to draw that distinction more clearly, we should.

I actually prefer what Assange has done to a press that cowers in fear of being charged with espionage for outing governmental wrongdoing. The latter is MUCH MORE DANGEROUS than Assange could ever be.

Y'all do love your bogeymen, though, don't you? First, Americans cowered in fear from an Afghani sheep herder, now they cower in fear from a white-haired former hacker.

We're turning into goddamn France, y'all.
 
I actually prefer what Assange has done to a press that cowers in fear of being charged with espionage for outing governmental wrongdoing. The latter is MUCH MORE DANGEROUS than Assange could ever be.

Well, then why not rewrite the law to clarify the distinction between outing government wrongdoing and outing state secrets just for the hell of it? That would solve that problem.

Catz Part Deux said:
Y'all do love your bogeymen, though, don't you? First, Americans cowered in fear from an Afghani sheep herder, now they cower in fear from a white-haired former hacker.

We're turning into goddamn France, y'all.

What
 
Well, then why not rewrite the law to clarify the distinction between outing government wrongdoing and outing state secrets just for the hell of it? That would solve that problem.

Will never ever happen. The Espionage act (and similar laws world wide) are meant to be as they are, so governments can charge anyone they want when some information is leaked or stolen. Remember, any information within government can be labelled as secret or similar.. Bush was king of doing that... and once done, then anyone leaking the information can be charged with spying. In principle, a list over the presidents toilet visits could be labelled as secret and if leaked then said leaker's could be executed for treason.

Basically it is a government "get revenge" card for exposing their wrong doings.
 
The major distinction I would draw between Assange and a government whistleblower is that the whistleblower leaks information to expose wrongdoing, which is completely legitimate in my view. Assange leaks state secrets just for the hell of it...I mean, is the world really a better place because everyone knows that US diplomats in Turkey don't like Tayyip Erdogan? That's just embarrassing to everyone involved and doesn't do anything to advance any specific policy. I don't see how society benefits from most of this stuff; there was very little in the way of actual wrongdoing that was exposed. If the worst thing that Assange has on the State Department in 300,000 documents is that US spies tried to steal Ban Ki-Moon's credit cards, I think the US government actually comes across looking great.

Maybe the distinction between whistleblowing and random leaking needs to be codified into law, if it isn't already. Perhaps the Espionage Act could be modified to protect people who publicize secret information who are motivated by a desire to expose wrongdoing or potential wrongdoing, while still prosecuting douchebags like Assange who do it for personal fame/glory/vendettas.

You have a point. On the other hand if Wikileaks (I refuse to reduce the entire org to one person) released only what they thought was exposing wrongdoing, we'd be hearing that the releases were intentionally skewed to only show certain things. I think the fact that they are letting the journalists decide what's important and what needs redacting and such, actually adds a level of credibility to the issue. Yes, all the cables are available, but very few of GQPublic are reading those, most are just reading what's being written in publications.

I think no matter what they/he did, all or selected, would be criticised. Seems at the time the Pentagon Papers release and that journalist were just as demonized when those first came out, now he's a hero of sorts. Much of the embarrassing stuff is silly I agree, on the other hand, it does show a lack of maturity that is discouraging at such high levels in the government among people making national security and military intervention decisions.
 
Well, then why not rewrite the law to clarify the distinction between outing government wrongdoing and outing state secrets just for the hell of it? That would solve that problem.

And this would be just like curtailing freedom of speech. Imagine someone saying the "N" word "just for the hell of it" and then being able to charge that person with a capitol crime. Is what the person said bad? Yep. Should he be punished for it? Nope. Because once you start curtailing freedoms you open the door for even more to happen....all in the name of "doing what you think is right". Remember, our Constitution favors individual rights...not majority "rights".
 


Tried to embed the video, but it didn't work. It's a Fox clip.

Well, now the NYTs should be investigated per Liebermann. I wish I could say, "unbelievable" but the outcry since Assange mentioned that some of soon to be released cables are relating to the bank debacle, seems everyone in Washington is actively trying to shut down all sources, even established media outlets. Will he recommend Fox and MSNBC and ABC and CBS and NBC be investigated as well?
 
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I have no issue with The Press or other entities republishing information exposed in accordance with the Whistleblower Protection Act. In those cases, the leaked information is legally being leaked and thus to me you're not trading on essentially stolen goods.

However, when its not something that would fall under that then I think there's a legitimate discussion to be had...akin to talking about slander, libel, or shouting fire in a crowded theater...about the limits of free speech and the press when it comes to profiting off of illegal material.
 
I have no issue with The Press or other entities republishing information exposed in accordance with the Whistleblower Protection Act. In those cases, the leaked information is legally being leaked and thus to me you're not trading on essentially stolen goods.

That fails to take into consideration that what's occurred with wikileaks is, in many ways, very similar to what happened with the Pentagon Papers. Someone who is a whistleblower is taking a serious personal risk, ON EVERY LEVEL, especially if the wrongdoing they are exposing is severe. Why shouldn't that be allowed in anonymity?

However, when its not something that would fall under that then I think there's a legitimate discussion to be had...akin to talking about slander, libel, or shouting fire in a crowded theater...about the limits of free speech and the press when it comes to profiting off of illegal material.

Who decides when something meets the standard you've set for leaked information, and when it doesn't?

Maybe the real issue is that we should stop keeping so many secrets, and reserve top secret classification for those secrets that REALLY warrant it, but never without actual oversight by elected officials.
 
Remember, any information within government can be labelled as secret or similar.

This is exactly right.

It's funny how many posters don't trust the government with an x-ray image of their naked body, but they DO trust the government in areas which are much more serious in regards to their impact on human rights.

I'd like a libertarian to explain that dichotomy...Why do you assume that the government is in the right here?
 
This is exactly right.

It's funny how many posters don't trust the government with an x-ray image of their naked body, but they DO trust the government in areas which are much more serious in regards to their impact on human rights.

Nationalism at its worse.. some non American is being painted as the bad guy so it is the patriotic thing to rally behind the government to defend it regardless of the crap that comes out.. typical right wing.. it happened daily under Bush.

I'd like a libertarian to explain that dichotomy...Why do you assume that the government is in the right here?

Assange is a foreigner, a socialist (has to be since he hates America according to the US right), terrorist (because Fox News and the GOP say so) and of course did not use a condom during sex. Ironically, by defending the government against this guy and making this guy the "bad guy".. they go off script because they are defending Obama ... talk about catch 22!
 
Will never ever happen. The Espionage act (and similar laws world wide) are meant to be as they are, so governments can charge anyone they want when some information is leaked or stolen. Remember, any information within government can be labelled as secret or similar.. Bush was king of doing that... and once done, then anyone leaking the information can be charged with spying. In principle, a list over the presidents toilet visits could be labelled as secret and if leaked then said leaker's could be executed for treason.

Basically it is a government "get revenge" card for exposing their wrong doings.

That's why it should be clarified in law. If the attorney general wants to press charges against a whistleblower, he should have to prove to a court that A) there was no substantial wrongdoing in the documents, and B) the defendant could not reasonably have thought (or showed reckless disregard) that there was substantial wrongdoing in the documents. That would distinguish retaliatory charges against those who expose corruption, from those who release embarrassing information solely to throw a wrench into the system.
 
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And this would be just like curtailing freedom of speech. Imagine someone saying the "N" word "just for the hell of it" and then being able to charge that person with a capitol crime. Is what the person said bad? Yep. Should he be punished for it? Nope. Because once you start curtailing freedoms you open the door for even more to happen....all in the name of "doing what you think is right". Remember, our Constitution favors individual rights...not majority "rights".

The difference is that leaking state secrets is illegal, and saying the N word isn't, nor should it be.
 
The difference is that leaking state secrets is illegal, and saying the N word isn't, nor should it be.

Considering that it was Manning that did the leaking and not wikileaks I don't see a difference when we are talking solely about wikileaks. If it had been FOX or MSNBC or CNN or any other official well known news agency the outcry for "treason" and all that crap wouldn't have been near as bad. If it was even mentioned at all.
 
Considering that it was Manning that did the leaking and not wikileaks I don't see a difference when we are talking solely about wikileaks.

Wikileaks received the files and was certainly complicit. Just like if you knowing receive stolen property from someone else, you've committed a crime as well. Furthermore, it's not like the documents just fell into Wikileaks' lap. They have an organized campaign with a website that encourages people to break the law.

Kal'Stang said:
If it had been FOX or MSNBC or CNN or any other official well known news agency the outcry for "treason" and all that crap wouldn't have been near as bad. If it was even mentioned at all.

Well, no responsible media outlet would have published the documents at all. That's the whole reason Wikileaks exists...so that leakers have someone to irresponsibly publish their documents, no questions asked.
 
Wikileaks received the files and was certainly complicit. Just like if you knowing receive stolen property from someone else, you've committed a crime as well. Furthermore, it's not like the documents just fell into Wikileaks' lap. They have an organized campaign with a website that encourages people to break the law.

Part in bold: The same could be said if the files were recieved by CNN or Fox. Yet they would get barely yelled at. When they are yelled at it would just be a token yelling.

Part underlined: Ah but the two are not the same for the simple fact of the 1st amendment. One is allowed as a way to have the government accountable to the citizens. Which is what our Founding Fathers wanted, especially since the government is a public entity that is suppose to be "by the people, for the people". The other is about stolen items from a private individual. So you really can't compare the two.

Part in Red: If you look at wikileaks about page they explicitly state that they do not encourage anyone to break the law. Now you may dismiss it as them lying if you wish, that is certainly your perogative. Just don't expect others to believe you when you state such. ;)

Well, no responsible media outlet would have published the documents at all. That's the whole reason Wikileaks exists...so that leakers have someone to irresponsibly publish their documents, no questions asked.

Good thing that you added "responsible". Since you did there's really no point in argueing about it as the word "responsible" is way to subjective for an actual debate on it. I would deem the NY Times as being responsible, yet you may not.
 
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