The Constitutionally deplorable intentions of the United States regarding Julian Assange and Wikileaks

December 5, 2011 | By | 6 Replies More

At Occasional Planet, Madonna Gauding explains that the U.S. campaign to imprison Julian Assange and put him to death, has nothing to do with national security:

Unfortunately, prosecuting leakers is not really about upholding the law or maintaining national security. It is about making sure the government or corporations can continue to hide information they do not want citizens to know, such as the video of the horrific gunning down of Baghdad civilians by U.S. forces in Iraq that Private Bradley Manning exposed. In this example, this secret brings the lie to the official story of the so called humanitarian mission in Iraq. Exposing military wrongdoing undermines the power of the government and the corporations it supports who make their fortunes off war.

Prosecuting Assange to the fullest extent, which could mean prison or even execution for espionage, is not about bringing a criminal to “justice,” or protecting the citizens of the United States. It is about instilling fear and intimidation in any one else (including mainstream journalists) who might want to expose information about government or corporate malfeasance. The purpose of Assange’s prosecution is to send a strong message that whistle blowing will not be tolerated.

Mauding’s account is bolstered by the unrelenting and precise writings of Glenn Greenwald, who points out that the Wikileak’s release of materials apparently provided by Bradley Manning have done the opposite of threatening U.S. security:

The objectives Manning described there have, in a very short time, already been vindicated: the Baghdad video was viewed by tens of millions of people around the world, and even the anti-WikiLeaks Executive Editor of the New York Times, Bill Keller, has credited the release of the diplomatic cables allegedly leaked by Manning as playing a substantial role in triggering the revolts across the Middle East against mostly U.S.-supported despots. Beyond that, so much of what we have learned about the world’s most powerful factions over the last year has come from these leaks. Those results, by themselves, mean Manning — if he is the alleged leaker — has done at least as much, if not more, to advance the causes of transparency, accountability, and freedom across the world than any single living individual.

In the process of releasing information the world needs to know, Wikileaks has not done anything different than the alleged mission of the New York Times, other than doing providing key information in greater quantity and to greater effect. And unlike the New York Times (e.g., Thomas Friedman and Judith Miller), Wikileaks has never perpetuated lies that ignited wars. Could the New York Times be prosecuted for publishing leaks on par with those leaked by Wikileaks? Absolutely not. This conclusion is explained in great detail by an article in the Harvard Civil Rights-Civil Liberties Law Review titled, “A Free Irresponsible Press: Wikileaks and the Battle over the Soul of the Networked Fourth Estate,” written by Yochai Benkler. At page 353, Benkler writes:

[T]he Pentagon Papers case concerned prior restraint, which the Court recognized as requiring extraordinary care. What of prosecution ex post? In the first instance, imagine what would have happened had the Justice Department turned around and brought criminal charges against the editors and journalists of the New York Times and the Washington Post after publication of the Pentagon Papers. Do we think that a court that held that the First Amendment requires that the newspapers be permitted to publish them would have simply allowed the government to charge and imprison the journalists after the fact? That would make a mockery of the protection and impose a much greater chill on publication than the risk of an injunction. The long history from the Masses case, Schenck v. United States, and the “bad tendency” era to Brandenburg v. Ohio’s overturning of Whitney v. California to embrace the “clear and present danger” framework ended up requiring a similar combination of high damage, high probability, and immediacy for prosecutions, as well as for prior restraints. As the Supreme Court put it in the context of considering criminal liability of a broadcaster who had broadcast illegal materials, the First Amendment does not permit prosecution of a journalist transmitting truthful information of public interest “absent a need of the highest order.” The distinction, then, is minimal in practice. The standard for prior restraint and the standard for criminal prosecution over the publication of truthful materials of public concern seems to be largely the same, and exceedingly stringent. On the background of this extremely high barrier to both prior restraint and to criminal prosecution, it is perhaps not surprising that efforts by the Bush Administration to prosecute the New York Times for its revelations of the National Security Agency’s program of domestic eavesdropping, and the Washington Post for its reporting on the existence of CIA-operated black sites in Eastern Europe, were abandoned.

Against the background of this legal regime, and what we know of the contents of the embassy cables eight weeks after their initial publication, it is for all practical purposes impossible to imagine that the New York Times would be prosecuted, or that if such an ill-advised prosecution were to be brought, that it could survive judicial scrutiny under prevailing First Amendment doctrine.

What about the viability of a suit against non-citizen’s such as Assange or The Guardian?  Benkler explains these potential hurdles at page 355.

A hypothetical suit against the Guardian or, for that matter, Assange, for publishing the embassy cables would be vastly simpler than the post-9/11 cases. First, it would proceed within the United States, not abroad. Even the absolutist version would not deny protection in trials conducted here. Second, the rights to be asserted are those involving the First Amendment’s freedoms of expression and of the press. Over one hundred years ago the Supreme Court, in one of the most important precedents limiting the extension of constitutional protections beyond the borders of the United States, nonetheless specifically stated that “freedom of speech and of the press” were among those rights so “indispensable to a free government” that they would apply abroad. Do we imagine, for example, that if the Guardian were to publish a report making revelations about a U.S. political figure, that person could sue the Guardian for libel in the United States without having to comport with the constraints of New York Times v. Sullivan? Indeed, Congress is pushing to have our own constitutional constraints protect our citizens from libel suits in perfectly democratic countries that give less deference to press freedom in the area of libel. It seems highly unlikely, then, that the mere fact of a publisher being a company or person who is not a U.S. citizen or resident, or of the publication being disseminated outside the United States, as would be the case were the government to prosecute the Guardian, would entail a lower level of First Amendment protection than the New York Times itself would receive. This conclusion is made even clearer  when we remember that the core purpose driving freedom of the press is the democratic necessity of an informed citizenry, to avoid the “farce, or tragedy, or both” that James Madison warned of. Functionally, whether the American public learns of official misconduct from a U.S.-based publication or a foreign publication is immaterial to the real beneficiaries of robust First Amendment freedom of the press—these are always and foremost the American public and American democracy.

What is the difference between the protections granted by the Constitution to Wikileaks and the New York Times? In the eyes of the law, there are no differences at all. The U.S. Constitution, as long-interpreted by Federal appellate cases, grants the same protection to both, as Benkler explains at page 357:

If Manning had walked off a military base in Oklahoma and handed the disc with the files to the editor of a tiny local newspaper of a small town 100 miles away, and that newspaper had published the materials, we would not conceivably have treated that local newspaper, even if it were a two-person operation, as categorically different from the New York Times. Indeed, we lionize the local newspaperman as a bulwark against local corruption. . . . As the Supreme Court put it, “Liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”

In fact,

[I]t is more important to provide robust constitutional protection to the weaker members of the fourth estate, who have less public visibility and wherewithal to withstand pressure from government officials, than it is to emphasize the rights of the organizationally and economically stronger members of the press. . . . . [p. 362] We come, then, to the conclusion that as a matter of First Amendment doctrine, Wikileaks is entitled to the protection available to a wide range of members of the fourth estate, from fringe pamphleteers to the major press organizations of the industrial information economy. As a matter of First Amendment values, what is being protected by this refusal to privilege the New York Times over Wikileaks is the continued access of the public to a steady flow of truthful, publicly relevant information about its government’s inner workings.

It is important to keep in mind that Wikileaks has revealed dozens of important news stories that Americans need to know, stories like these and these.

Yochai Benkler‘s article, cited extensively above, contains an excellent history of U.S. government abuses of Wikileaks, including the U.S. scheme to starve Wikileaks of funds by pressuring private banking and Internet hosting businesses to cut off access to Wikileaks.  I highly recommend a slow careful reading. I’ll conclude with a statement by Wikileaks regarding this U.S. attempt to starve it of all operational funds and to mount groundless prosecution of Julian Assange:

As a result of exposing U.S. embassies from around the world, five major US financial institutions, VISA, MasterCard, PayPal, Western Union and the Bank of America, have tried to economically strangle WikiLeaks The attack has blocked over 95% of our donations, costing tens of millions of dollars in lost revenue. The attack is entirely political. In fact, in the only formal review to occur, the US Treasury found that there were no lawful grounds to add WikiLeaks to financial blockade

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Category: Censorship, Citizen Journalism, Iraq, Journalism, Media, Media Blackouts, Orwellian, Secrecy, War, Whistle-blowers

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

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  1. Erich Vieth says:

    New ruling today: Julian Assange will be allowed to present his extradition case to supreme court. http://www.guardian.co.uk/media/2011/dec/05/julian-assange-extradition-supreme-court1

  2. Helga says:

    great article. But you might want to change the title. I mean WIKIPEDIA?

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