"Citing the Pentagon Papers case, the CRS report warns that an attempt to stage a prosecution for the WikiLeaks disclosures would raise questions over “government censorship” and US attempts to exercise “extraterritorial jurisdiction.”
If the law were properly applied, a prosecution of WikiLeaks and Assange would not even be brought. However, given the sharp shift to the right by the US high court, along with the rest of the political establishment, there is every reason to believe that a government attempt to railroad Assange on espionage charges will proceed in earnest."
If the law were properly applied, a prosecution of WikiLeaks and Assange would not even be brought. However, given the sharp shift to the right by the US high court, along with the rest of the political establishment, there is every reason to believe that a government attempt to railroad Assange on espionage charges will proceed in earnest."
US government demands Twitter account information of WikiLeaks and followers and more
By Andre Damon with General Joe
10 January 2011
The US Department of Justice has issued a court order to Twitter, the social networking site, demanding that it hand over information on WikiLeaks and its collaborators. WikiLeaks said that the subpoena, if not blocked, will grant the government access to the names of the more than 600,000 people who “follow” WikiLeaks over the network.
The subpoena, issued December 14, covers all official Twitter accounts of WikiLeaks, as well as the personal accounts of Brigitta Jonsdottir, a member of the Icelandic parliament, and WikiLeaks collaborators Rop Gonggrijp and Jacob Appelbaum. The order also requests all information on Pfc. Bradley Manning―who the US government claims leaked information through WikiLeaks―and WikiLeaks founder Julian Assange.
The government is demanding that Twitter hand over mailing addresses and billing information, IP addresses used to access Twitter, as well as bank records and credit card information.
The subpoena provoked an uproar in Iceland, where the foreign minister summoned the US ambassador for an explanation. “[It is] very serious that a foreign state, the United States, demands such personal information of an Icelandic person, an elected official,” said Interior Minister Ogmundur Jonasson in a press interview with the Icelandic National Broadcasting Service.
This concern is heightened, Jonasson said, when “put [in] perspective and concerns freedom of speech and people's freedom in general.”
Ms. Jonsdottir denounced the subpoena in a telephone interview with the WSWS on Sunday. “There is no criminal case against me because I have done nothing in violation of any law,” she stated.
“The US government is trying to criminalize whistleblowing and publication of whistleblowing,” Jonsdottir added. “They want to make it tantamount to spying, and if they succeed in doing that, journalists could be prosecuted just for doing their jobs.”
Jonsdottir and Gonggrijp, together with Julian Assange, are listed as the producers of the Collateral Murder video released in April, which shows the slaughter of unarmed people, including two Reuters journalists, by a US helicopter gunship in 2007.
In addition to the information on WikiLeaks and its collaborators, the subpoena also demands “non-content information associated with the contents of any communications … stored by or for the accounts(s), such as destination email addresses.” If Twitter posts are interpreted as messages, that means that Twitter will be obliged to turn over the names of all of WikiLeaks’ followers.
WikiLeaks issued a warning on its Twitter feed Sunday that “all 637,000 @wikileaks followers are a target of US gov subpoena against Twitter.”
The subpoena ordered Twitter not to disclose that it had been served with the subpoena. Twitter's lawyers asked the district court to remove those secrecy provisions, which it did on January 5. Twitter then advised the subjects that if they did not challenge the subpoenas in court within 10 days, it would turn over the requested material.
Thus far, Twitter is the only social networking site that has reported being subpoenaed in relation to the investigation of WikiLeaks. However, WikiLeaks and Ms. Jonsdottir said they suspect Facebook, Google, and other companies received similar subpoenas, but quietly complied.
“If Twitter had not fought to unseal the subpoena, then we would never have known any of this,” said Jonsdottir. “I'm waiting for similar letters from Facebook, Google, and Skype, because I would like to know if they have also been subpoenaed.”
WikiLeaks issued a statement demanding that Facebook and Google make public any subpoenas they received. “Today, the existence of a secret US government grand jury espionage investigation into WikiLeaks was confirmed for the first time as a subpoena was brought into the public domain,” the organization said in a statement.
Jonsdottir said there would be a worldwide uproar if any country besides the United States demanded this type of information of a foreign MP. “I am in the International Network of Parliamentarians on Tibet. What would the world think if China demanded my computer records based on the idea that I was supporting terrorist monks?” she said.
Julian Assange condemned the court order in a statement Saturday. “If the Iranian government was to attempt to coercively obtain this information from journalists and activists of foreign nations, human rights groups around the world would speak out," he told the Associated Press.
There is reason to suspect that the US government has already collected part of this data through its illegal wiretapping and secret subpoenas. As Jacob Appelbaum, a security specialist listed in the subpoena, posted on his Twitter page, “I wonder if the subpoena is merely a front to legally introduce evidence captured by the confirmed NSA wiretaps two blocks from Twitter HQ.”
Jonsdottir and WikiLeaks have said they intend to wage a legal fight to keep Twitter from handing over the data
-----
This is so important. Every progressive person must stand up for wikileaks. If we are not prepared to “go the distance” on this, god help us. Please spread this everywhere. General Joe
Find details to ease further publishing below:
Summary: “Ms. Jonsdottir denounced the subpoena in a telephone interview with the WSWS on Sunday. “There is no criminal case against me because I have done nothing in violation of any law,” she stated.
“The US government is trying to criminalize whistleblowing and publication of whistleblowing,” Jonsdottir added. “They want to make it tantamount to spying, and if they succeed in doing that, journalists could be prosecuted just for doing their jobs.”
Jonsdottir and Gonggrijp, together with Julian Assange, are listed as the producers of the Collateral Murder video released in April, which shows the slaughter of unarmed people, including two Reuters journalists, by a US helicopter gunship in 2007.
In addition to the information on WikiLeaks and its collaborators, the subpoena also demands “non-content information associated with the contents of any communications … stored by or for the accounts(s), such as destination email addresses.” If Twitter posts are interpreted as messages, that means that Twitter will be obliged to turn over the names of all of WikiLeaks’ followers.”
“The subpoena ordered Twitter not to disclose that it had been served with the subpoena.”
Title: The US government demands Twitter account information of Wikileaks and Followeres.
By: Andre Damon with General Joe
------
And:
US government pursues bogus criminal prosecution of WikiLeaks and Julian Assange
By Don Knowland 11 January 2011
The US attorney in the federal court in the Eastern District of Virginia on December 14 obtained a subpoena directed to the social network site Twitter. It seeks the mailing addresses and billing information, connection records and session times, IP addresses used to access Twitter, email accounts, as well bank account and credit card numbers for WikiLeaks founder Julian Assange and imprisoned US Army private Bradley Manning. Also named are WikiLeaks supporters Birgitta Jonsdottir, who is a member of the Icelandic parliament, Dutch citizen Rop Gonggrijp and US programmer Jacob Appelbaum.
The subpoena amounts to confirmation that prosecutors have convened a grand jury in an effort to indict Assange and perhaps other WikiLeaks personnel on charges of conspiring to steal documents with Manning, a US Army intelligence analyst.
Manning himself faces a court martial and up to 52 years in prison for allegedly sending WikiLeaks the diplomatic cables, as well as military logs about incidents in Afghanistan and Iraq and a classified military video showing US soldiers indiscriminately shooting Iraqi civilians. The US Department of Justice has been trying to coerce Manning to testify that Assange conspired with him to release these materials.
The subpoena as issued ordered Twitter not disclose that it had been served with the subpoena, or the existence of the investigation. Twitter’s lawyers asked the district court to remove those secrecy provisions, which it did on January 5. Twitter then advised the subjects that if they did not challenge the subpoenas in court within 10 days it would turn over the requested material.
Assange condemned the court order in a statement on Saturday. WikiLeaks also suggested that Google and Facebook might also have been issued similar subpoenas. According to the New York Times, Facebook declined to comment, and Google did not respond to an inquiry.
Along with Assange and Gonggrijp, Ms. Jonsdottir produced the 2007 Wikileaks video showing a US Apache helicopter shooting civilians in Iraq, which first brought Wikileaks public attention. She was the chief sponsor of the Icelandic Modern Media Initiative law, which made Iceland an international haven for investigative journalism and free speech. Jonsdottir said she would challenge the subpoena and that the Icelandic foreign minister has asked the American ambassador to meet to discuss the matter, including whether it involves a grand jury proceeding.
US Attorney General Eric Holder last month confirmed there was “a very serious, active ongoing investigation that is criminal in nature” in relation to WikiLeaks’ disclosure of classified State Department cables.
First Holder said the Justice Department was looking to prosecute Assange under the Espionage Act. Section (c) of the Espionage Act (18 U.S.C. § 793) makes it a felony when a person “receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document” ... “respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.”
Those found guilty of “conspiring” to engage in any action found to violate the Act can also be convicted. Thus the government will also likely try to show that Assange induced someone in the government to provide him with secret information.
Later Holder said that while that Act might prove one basis for prosecution, his office was looking at “other statutes, other tools.” One such suggestion apparently is that Assange be charged with “trafficking in stolen government property”—an absurd accusation given that the published cables are reproductions of files, not physical documents—shows the lengths the government may go to concoct a case.
The reason is that prosecution under the Espionage Act presents daunting stumbling blocks to the government.
First, as to the intent requirement, the statute was well described by former Supreme Court Justice John Marshall Harlan as “singularly oblique.” It implicates political views—one man’s intention to injure the US is another man’s intent to help it. Thus it is very difficult to prove that Assange and WikiLeaks received material with intent or reason to believe that the information would injure the United States. Quite to the contrary, WikiLeaks correctly asserts that it obtained information in order to shine light on the sordid operations of US imperialism, to the benefit of the American people.
Second, an espionage prosecution against WikiLeaks would be a drastic assault on the First Amendment to the US Constitution and freedom of the press. The logic being that the operations of any news organization that is not a state propaganda outlet would be illegal.
The Espionage Act, passed in 1917, has a long and reactionary history. It was used to quell speech and association of government political opponents such as the legendary workers’ leader Eugene V. Debs in 1918, along with thousands of members of the Industrial Workers of the World and other working class militants.
The Act was passed before the Supreme Court had ever declared an act of Congress unconstitutional under the First Amendment. Doubts have repeatedly been raised as to its constitutionality. The 1919 landmark Supreme Court case of Schenk v. U.S. was an Espionage Act case where the so-called “clear and present danger” test was articulated as a constitutional check on the law. That test was modified some 50 years later in Brandenburg v. Ohio (1969) to an “imminent lawless action” test.
Other cases such as New York Times Co. v. United States, the case involving the precedent of the publication in the New York Times and Washington Post of the Pentagon Papers, and the refusal of the US Supreme Court to grant the government’s request for an injunction barring the papers from printing the material, raised doubt about the constitutionality of the Act, but did not decide it. But by rejecting the government’s position the high court implicitly made it clear that prosecution of a journalist or news outlet under the Act could not pass constitutional muster.
Recently, the Electronic Frontier Foundation (EFF) stated they “agree with other legal commentators who have warned that a prosecution of Assange, much less of other readers or publishers of the cables, would face serious First Amendment hurdles, and would be ‘extremely dangerous’ to free speech rights.”
EFF linked to a report by the Congressional Research Service (CRS), the nonpartisan research arm of the US Congress, spelling out the unprecedented character of seeking to prosecute Assange and WikiLeaks for making classified information public. US criminal statutes covering such information, the report notes, “have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States.”
No one other than government employees have been successfully prosecuted under the Espionage Act for receiving and passing on secret documents. In fact, the Bush administration’s attempt to apply the Espionage Act to two employees of the pro-Zionist lobby AIPAC, who obtained material from a US intelligence analyst and then passed it on to Israel, ended in failure, as courts acquitted the two employees, despite the evidence provided by the analyst, who was the source of the leak.
The CRS report goes on to point out, “Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.”
Citing the Pentagon Papers case, the CRS report warns that an attempt to stage a prosecution for the WikiLeaks disclosures would raise questions over “government censorship” and US attempts to exercise “extraterritorial jurisdiction.”
If the law were properly applied, a prosecution of WikiLeaks and Assange would not even be brought. However, given the sharp shift to the right by the US high court, along with the rest of the political establishment, there is every reason to believe that a government attempt to railroad Assange on espionage charges will proceed in earnest.
Political figures on the Republican right have called for Assange to be labeled an “enemy combatant” or “terrorist,” and to be taken out or assassinated. Moreover, they argue, WikiLeaks should be designated a “terrorist organization.”
Democrats have also joined in the campaign. US Vice President Joe Biden denounced Assange as a “high-tech terrorist.” In a column in the Wall Street Journal, California’s Democratic senator, Dianne Feinstein, called for the prosecution of Assange under the Espionage Act.
Feinstein attempted to provide a basis for denying Assange First Amendment protection, writing,
“Mr. Assange claims to be a journalist and would no doubt rely on the First Amendment to defend his actions. But he is no journalist: He is an agitator intent on damaging our government, whose policies he happens to disagree with, regardless of who gets hurt.” Feinstein continued, “Just as the First Amendment is not a license to yell ‘Fire!’ in a crowded theater, it is also not a license to jeopardize national security.”
In other words, a person who exposes the crimes of a government engaged in armed aggression and torture is a criminal. Free speech should be suspended by the mere invocation of “national security.”
The Supreme Court itself is now all too willing to junk its prior precedents and the Constitution in order to back the nefarious operations of the US government overseas. In June of last year the court ruled that a law which prohibits providing “material support” to foreign organizations designated as terrorist was constitutional, even where the “support” was peace training, and involved political advocacy at the UN supporting negotiation of military conflict. The court ruled that “even well-intentioned aid to terrorist organizations is likely to backfire.” Contrary to a longstanding bedrock principle of Anglo-American criminal law, intent did not matter in the context of criminal prosecution for such activity.
The fact that the grand jury proceedings against WikiLeaks have been convened in the Eastern District of Virginia itself is a calculated attempt to pack the potential jury pool with persons sympathetic to prosecution. It would almost certainly include people employed by or with family connections to the US national security apparatus, since the Pentagon, CIA and the Department of Homeland Security are headquartered in the area.
This combination of a lynch mob atmosphere pushed by American politicians, the rightward shift of the US courts and the location of the prosecution alone casts into severe doubt Assange’s ability to get a fair trial.
In a direct attempt to eliminate the hurdles to prosecuting WikiLeaks and Assange, Senator Joseph Lieberman and two other senators, along with the incoming chairman of the House Homeland Security Committee, Republican Peter King of Long Island, have introduced legislation that would make it a federal crime to publish the names of those who supply information to the US military or intelligence agencies, regardless of the intent of the publishing party.
The so-called SHIELD Act (Securing Human Intelligence and Enforcing Lawful Dissemination) would amend the Espionage Act to make it a crime to publish information “concerning the identity of a classified source or informant of an element of the intelligence community of the United States,” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to US interests. Nothing more would be required for conviction.
Presumably the new law could not be applied to past conduct by WikiLeaks. It would be barred under the Constitution as “ex post facto”—a law passed after the commission of an act which retrospectively change the legal consequences of such act.
The legislation takes square aim at WikiLeaks and other publishers. But its constitutionality would be even more dubious than the old Espionage Act provisions, especially in the context of journalism and news media.
In the final analysis, the US campaign to prosecute WikiLeaks and Assange is designed to shield the very politicians and US government officials who authorize and pursue criminal activities around the world and against its peoples. The exposure of those crimes is principled and heroic, but the criminals control the criminal prosecution agencies.
Were the prosecution of WikiLeaks successful it would set the stage for an even more far-ranging drive to suppress freedom of the Internet as a whole, to shut down other web sites that oppose the policies of the US government, and to impose an even tighter veil of secrecy over the operations of the CIA, the Pentagon and the White House.
-----
If this US government madness is not stopped soon any semblance of “free speech” is over and our world is surely doomed. Europeans have a key role to play in assuring that Julian Assange is not extradited to the US. Please do whatever you must to keep him there. He simply cannot receive “justice” here. Spread very widely. General Joe
By Andre Damon with General Joe
10 January 2011
The US Department of Justice has issued a court order to Twitter, the social networking site, demanding that it hand over information on WikiLeaks and its collaborators. WikiLeaks said that the subpoena, if not blocked, will grant the government access to the names of the more than 600,000 people who “follow” WikiLeaks over the network.
The subpoena, issued December 14, covers all official Twitter accounts of WikiLeaks, as well as the personal accounts of Brigitta Jonsdottir, a member of the Icelandic parliament, and WikiLeaks collaborators Rop Gonggrijp and Jacob Appelbaum. The order also requests all information on Pfc. Bradley Manning―who the US government claims leaked information through WikiLeaks―and WikiLeaks founder Julian Assange.
The government is demanding that Twitter hand over mailing addresses and billing information, IP addresses used to access Twitter, as well as bank records and credit card information.
The subpoena provoked an uproar in Iceland, where the foreign minister summoned the US ambassador for an explanation. “[It is] very serious that a foreign state, the United States, demands such personal information of an Icelandic person, an elected official,” said Interior Minister Ogmundur Jonasson in a press interview with the Icelandic National Broadcasting Service.
This concern is heightened, Jonasson said, when “put [in] perspective and concerns freedom of speech and people's freedom in general.”
Ms. Jonsdottir denounced the subpoena in a telephone interview with the WSWS on Sunday. “There is no criminal case against me because I have done nothing in violation of any law,” she stated.
“The US government is trying to criminalize whistleblowing and publication of whistleblowing,” Jonsdottir added. “They want to make it tantamount to spying, and if they succeed in doing that, journalists could be prosecuted just for doing their jobs.”
Jonsdottir and Gonggrijp, together with Julian Assange, are listed as the producers of the Collateral Murder video released in April, which shows the slaughter of unarmed people, including two Reuters journalists, by a US helicopter gunship in 2007.
In addition to the information on WikiLeaks and its collaborators, the subpoena also demands “non-content information associated with the contents of any communications … stored by or for the accounts(s), such as destination email addresses.” If Twitter posts are interpreted as messages, that means that Twitter will be obliged to turn over the names of all of WikiLeaks’ followers.
WikiLeaks issued a warning on its Twitter feed Sunday that “all 637,000 @wikileaks followers are a target of US gov subpoena against Twitter.”
The subpoena ordered Twitter not to disclose that it had been served with the subpoena. Twitter's lawyers asked the district court to remove those secrecy provisions, which it did on January 5. Twitter then advised the subjects that if they did not challenge the subpoenas in court within 10 days, it would turn over the requested material.
Thus far, Twitter is the only social networking site that has reported being subpoenaed in relation to the investigation of WikiLeaks. However, WikiLeaks and Ms. Jonsdottir said they suspect Facebook, Google, and other companies received similar subpoenas, but quietly complied.
“If Twitter had not fought to unseal the subpoena, then we would never have known any of this,” said Jonsdottir. “I'm waiting for similar letters from Facebook, Google, and Skype, because I would like to know if they have also been subpoenaed.”
WikiLeaks issued a statement demanding that Facebook and Google make public any subpoenas they received. “Today, the existence of a secret US government grand jury espionage investigation into WikiLeaks was confirmed for the first time as a subpoena was brought into the public domain,” the organization said in a statement.
Jonsdottir said there would be a worldwide uproar if any country besides the United States demanded this type of information of a foreign MP. “I am in the International Network of Parliamentarians on Tibet. What would the world think if China demanded my computer records based on the idea that I was supporting terrorist monks?” she said.
Julian Assange condemned the court order in a statement Saturday. “If the Iranian government was to attempt to coercively obtain this information from journalists and activists of foreign nations, human rights groups around the world would speak out," he told the Associated Press.
There is reason to suspect that the US government has already collected part of this data through its illegal wiretapping and secret subpoenas. As Jacob Appelbaum, a security specialist listed in the subpoena, posted on his Twitter page, “I wonder if the subpoena is merely a front to legally introduce evidence captured by the confirmed NSA wiretaps two blocks from Twitter HQ.”
Jonsdottir and WikiLeaks have said they intend to wage a legal fight to keep Twitter from handing over the data
-----
This is so important. Every progressive person must stand up for wikileaks. If we are not prepared to “go the distance” on this, god help us. Please spread this everywhere. General Joe
Find details to ease further publishing below:
Summary: “Ms. Jonsdottir denounced the subpoena in a telephone interview with the WSWS on Sunday. “There is no criminal case against me because I have done nothing in violation of any law,” she stated.
“The US government is trying to criminalize whistleblowing and publication of whistleblowing,” Jonsdottir added. “They want to make it tantamount to spying, and if they succeed in doing that, journalists could be prosecuted just for doing their jobs.”
Jonsdottir and Gonggrijp, together with Julian Assange, are listed as the producers of the Collateral Murder video released in April, which shows the slaughter of unarmed people, including two Reuters journalists, by a US helicopter gunship in 2007.
In addition to the information on WikiLeaks and its collaborators, the subpoena also demands “non-content information associated with the contents of any communications … stored by or for the accounts(s), such as destination email addresses.” If Twitter posts are interpreted as messages, that means that Twitter will be obliged to turn over the names of all of WikiLeaks’ followers.”
“The subpoena ordered Twitter not to disclose that it had been served with the subpoena.”
Title: The US government demands Twitter account information of Wikileaks and Followeres.
By: Andre Damon with General Joe
------
And:
US government pursues bogus criminal prosecution of WikiLeaks and Julian Assange
By Don Knowland 11 January 2011
The US attorney in the federal court in the Eastern District of Virginia on December 14 obtained a subpoena directed to the social network site Twitter. It seeks the mailing addresses and billing information, connection records and session times, IP addresses used to access Twitter, email accounts, as well bank account and credit card numbers for WikiLeaks founder Julian Assange and imprisoned US Army private Bradley Manning. Also named are WikiLeaks supporters Birgitta Jonsdottir, who is a member of the Icelandic parliament, Dutch citizen Rop Gonggrijp and US programmer Jacob Appelbaum.
The subpoena amounts to confirmation that prosecutors have convened a grand jury in an effort to indict Assange and perhaps other WikiLeaks personnel on charges of conspiring to steal documents with Manning, a US Army intelligence analyst.
Manning himself faces a court martial and up to 52 years in prison for allegedly sending WikiLeaks the diplomatic cables, as well as military logs about incidents in Afghanistan and Iraq and a classified military video showing US soldiers indiscriminately shooting Iraqi civilians. The US Department of Justice has been trying to coerce Manning to testify that Assange conspired with him to release these materials.
The subpoena as issued ordered Twitter not disclose that it had been served with the subpoena, or the existence of the investigation. Twitter’s lawyers asked the district court to remove those secrecy provisions, which it did on January 5. Twitter then advised the subjects that if they did not challenge the subpoenas in court within 10 days it would turn over the requested material.
Assange condemned the court order in a statement on Saturday. WikiLeaks also suggested that Google and Facebook might also have been issued similar subpoenas. According to the New York Times, Facebook declined to comment, and Google did not respond to an inquiry.
Along with Assange and Gonggrijp, Ms. Jonsdottir produced the 2007 Wikileaks video showing a US Apache helicopter shooting civilians in Iraq, which first brought Wikileaks public attention. She was the chief sponsor of the Icelandic Modern Media Initiative law, which made Iceland an international haven for investigative journalism and free speech. Jonsdottir said she would challenge the subpoena and that the Icelandic foreign minister has asked the American ambassador to meet to discuss the matter, including whether it involves a grand jury proceeding.
US Attorney General Eric Holder last month confirmed there was “a very serious, active ongoing investigation that is criminal in nature” in relation to WikiLeaks’ disclosure of classified State Department cables.
First Holder said the Justice Department was looking to prosecute Assange under the Espionage Act. Section (c) of the Espionage Act (18 U.S.C. § 793) makes it a felony when a person “receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document” ... “respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.”
Those found guilty of “conspiring” to engage in any action found to violate the Act can also be convicted. Thus the government will also likely try to show that Assange induced someone in the government to provide him with secret information.
Later Holder said that while that Act might prove one basis for prosecution, his office was looking at “other statutes, other tools.” One such suggestion apparently is that Assange be charged with “trafficking in stolen government property”—an absurd accusation given that the published cables are reproductions of files, not physical documents—shows the lengths the government may go to concoct a case.
The reason is that prosecution under the Espionage Act presents daunting stumbling blocks to the government.
First, as to the intent requirement, the statute was well described by former Supreme Court Justice John Marshall Harlan as “singularly oblique.” It implicates political views—one man’s intention to injure the US is another man’s intent to help it. Thus it is very difficult to prove that Assange and WikiLeaks received material with intent or reason to believe that the information would injure the United States. Quite to the contrary, WikiLeaks correctly asserts that it obtained information in order to shine light on the sordid operations of US imperialism, to the benefit of the American people.
Second, an espionage prosecution against WikiLeaks would be a drastic assault on the First Amendment to the US Constitution and freedom of the press. The logic being that the operations of any news organization that is not a state propaganda outlet would be illegal.
The Espionage Act, passed in 1917, has a long and reactionary history. It was used to quell speech and association of government political opponents such as the legendary workers’ leader Eugene V. Debs in 1918, along with thousands of members of the Industrial Workers of the World and other working class militants.
The Act was passed before the Supreme Court had ever declared an act of Congress unconstitutional under the First Amendment. Doubts have repeatedly been raised as to its constitutionality. The 1919 landmark Supreme Court case of Schenk v. U.S. was an Espionage Act case where the so-called “clear and present danger” test was articulated as a constitutional check on the law. That test was modified some 50 years later in Brandenburg v. Ohio (1969) to an “imminent lawless action” test.
Other cases such as New York Times Co. v. United States, the case involving the precedent of the publication in the New York Times and Washington Post of the Pentagon Papers, and the refusal of the US Supreme Court to grant the government’s request for an injunction barring the papers from printing the material, raised doubt about the constitutionality of the Act, but did not decide it. But by rejecting the government’s position the high court implicitly made it clear that prosecution of a journalist or news outlet under the Act could not pass constitutional muster.
Recently, the Electronic Frontier Foundation (EFF) stated they “agree with other legal commentators who have warned that a prosecution of Assange, much less of other readers or publishers of the cables, would face serious First Amendment hurdles, and would be ‘extremely dangerous’ to free speech rights.”
EFF linked to a report by the Congressional Research Service (CRS), the nonpartisan research arm of the US Congress, spelling out the unprecedented character of seeking to prosecute Assange and WikiLeaks for making classified information public. US criminal statutes covering such information, the report notes, “have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States.”
No one other than government employees have been successfully prosecuted under the Espionage Act for receiving and passing on secret documents. In fact, the Bush administration’s attempt to apply the Espionage Act to two employees of the pro-Zionist lobby AIPAC, who obtained material from a US intelligence analyst and then passed it on to Israel, ended in failure, as courts acquitted the two employees, despite the evidence provided by the analyst, who was the source of the leak.
The CRS report goes on to point out, “Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.”
Citing the Pentagon Papers case, the CRS report warns that an attempt to stage a prosecution for the WikiLeaks disclosures would raise questions over “government censorship” and US attempts to exercise “extraterritorial jurisdiction.”
If the law were properly applied, a prosecution of WikiLeaks and Assange would not even be brought. However, given the sharp shift to the right by the US high court, along with the rest of the political establishment, there is every reason to believe that a government attempt to railroad Assange on espionage charges will proceed in earnest.
Political figures on the Republican right have called for Assange to be labeled an “enemy combatant” or “terrorist,” and to be taken out or assassinated. Moreover, they argue, WikiLeaks should be designated a “terrorist organization.”
Democrats have also joined in the campaign. US Vice President Joe Biden denounced Assange as a “high-tech terrorist.” In a column in the Wall Street Journal, California’s Democratic senator, Dianne Feinstein, called for the prosecution of Assange under the Espionage Act.
Feinstein attempted to provide a basis for denying Assange First Amendment protection, writing,
“Mr. Assange claims to be a journalist and would no doubt rely on the First Amendment to defend his actions. But he is no journalist: He is an agitator intent on damaging our government, whose policies he happens to disagree with, regardless of who gets hurt.” Feinstein continued, “Just as the First Amendment is not a license to yell ‘Fire!’ in a crowded theater, it is also not a license to jeopardize national security.”
In other words, a person who exposes the crimes of a government engaged in armed aggression and torture is a criminal. Free speech should be suspended by the mere invocation of “national security.”
The Supreme Court itself is now all too willing to junk its prior precedents and the Constitution in order to back the nefarious operations of the US government overseas. In June of last year the court ruled that a law which prohibits providing “material support” to foreign organizations designated as terrorist was constitutional, even where the “support” was peace training, and involved political advocacy at the UN supporting negotiation of military conflict. The court ruled that “even well-intentioned aid to terrorist organizations is likely to backfire.” Contrary to a longstanding bedrock principle of Anglo-American criminal law, intent did not matter in the context of criminal prosecution for such activity.
The fact that the grand jury proceedings against WikiLeaks have been convened in the Eastern District of Virginia itself is a calculated attempt to pack the potential jury pool with persons sympathetic to prosecution. It would almost certainly include people employed by or with family connections to the US national security apparatus, since the Pentagon, CIA and the Department of Homeland Security are headquartered in the area.
This combination of a lynch mob atmosphere pushed by American politicians, the rightward shift of the US courts and the location of the prosecution alone casts into severe doubt Assange’s ability to get a fair trial.
In a direct attempt to eliminate the hurdles to prosecuting WikiLeaks and Assange, Senator Joseph Lieberman and two other senators, along with the incoming chairman of the House Homeland Security Committee, Republican Peter King of Long Island, have introduced legislation that would make it a federal crime to publish the names of those who supply information to the US military or intelligence agencies, regardless of the intent of the publishing party.
The so-called SHIELD Act (Securing Human Intelligence and Enforcing Lawful Dissemination) would amend the Espionage Act to make it a crime to publish information “concerning the identity of a classified source or informant of an element of the intelligence community of the United States,” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to US interests. Nothing more would be required for conviction.
Presumably the new law could not be applied to past conduct by WikiLeaks. It would be barred under the Constitution as “ex post facto”—a law passed after the commission of an act which retrospectively change the legal consequences of such act.
The legislation takes square aim at WikiLeaks and other publishers. But its constitutionality would be even more dubious than the old Espionage Act provisions, especially in the context of journalism and news media.
In the final analysis, the US campaign to prosecute WikiLeaks and Assange is designed to shield the very politicians and US government officials who authorize and pursue criminal activities around the world and against its peoples. The exposure of those crimes is principled and heroic, but the criminals control the criminal prosecution agencies.
Were the prosecution of WikiLeaks successful it would set the stage for an even more far-ranging drive to suppress freedom of the Internet as a whole, to shut down other web sites that oppose the policies of the US government, and to impose an even tighter veil of secrecy over the operations of the CIA, the Pentagon and the White House.
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If this US government madness is not stopped soon any semblance of “free speech” is over and our world is surely doomed. Europeans have a key role to play in assuring that Julian Assange is not extradited to the US. Please do whatever you must to keep him there. He simply cannot receive “justice” here. Spread very widely. General Joe
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