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Why Hasn’t the U.S. Arrested WaPo Journalist for Publishing Classified Documents?
Why hasn’t the U.S. government arrested WaPo journalist Shane Harris for publishing highly classified documents related to the war in Ukraine and U.S. spying on its allies? The ones leaked by Air national Guardsman Jack Teixeira?
The documents contain significant revelations. Among other secrets, they show the CIA recruited human agents privy to the closed-door conversations of world leaders, reveal eavesdropping that shows a Russian mercenary outfit tried to acquire weapons from NATO ally Turkey to use against Ukraine, explained what kind of satellite imagery the United States uses to track Russian forces, and made clear U.S. and NATO have special forces on the ground inside Ukraine.
Why Shane Harris is not in jail has a long history, and a complex answer. In 1971, Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act (the same law under which Jack Teixeira is charged.) A federal court ordered the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper via prior restraint. In the end, the Supreme Court reversed the lower courts and handed down a victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ever since media have published national security secrets as they found them.
Law professor Steve Vladeck points out “although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause. The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
The Supreme Court left the door open for the prosecution of journalists who publish classified documents by focusing narrowly on prohibiting prior restraint. Politics and public opinion, not law, has since kept the feds exercising discretion in not prosecuting the press, a delicate dance around an 800-pound gorilla loose in the halls of democracy.
The closest an American journalist ever came to being thrown in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. They then accused former CIA officer Jeffrey Sterling of passing classified information to Risen. After a lower court ordered Risen to testify and disclose his source under threat of jail, the Supreme Court turned down his appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether the First Amendment implied a “reporter’s privilege,” an undocumented protection beneath the handful of words in the Free Press Clause.
In the end, the Obama administration, fearful of public opinion, punted on Risen and set precedent extra-judicially. Waving a patriotic flag over a messy situation, then-attorney general Eric Holder announced that “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and wasn’t punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into prison for three and a half years. To avoid creating a precedent that might have granted some form of reporter’s privilege under the Constitution, the government set a different precedent and stepped away from the fight. That’s why Shane Harris of the Washington Post isn’t under arrest right now. For traditional media American journalists like Shane Harris, the Risen case was a turning point.
Meanwhile Wikileaks’ Julian Assange is under arrest, rotting away in his fifth year in a UK prison fighting extradition to the United States. There are complex legal questions to be answered about who is a journalist and what is publishing in the digital world — is Assange himself a journalist like Risen or a source for journalists like Sterling was alleged to be? There is no debate over whether James Risen is a journalist and whether a book is publishing. Glenn Greenwald has written about and published online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher.
Assange isn’t an American, so he is vulnerable. He is unpopular, drawn into America’s 21st-century Red Scare for revealing the DNC emails. He has written nothing alongside the primary source documents on Wikileaks, has apparently done little curating or culling, and has redacted little. Publishing for him consists of uploading what has been supplied. The government would argue Assange is not entitled to First Amendment protections simply by claiming that a mouse click and some web code isn’t publishing and Assange isn’t a journalist. The simplest interpretation of 18 U.S.C. § 793(e) of the Espionage Act, that Assange willfully transmitted information relating to national defense without authorization, would apply. He would be guilty, same as the other canaries in the deep mine shaft of Washington before him, no messy balancing questions to be addressed. And with that, a unique form of online primary source journalism would be made extinct.
And that really, really matters. Wikileaks sidestepped the restraints of traditional journalism to bring the raw material of history to the people. Never mind whether or not a court determined disclosure of secret NSA programs which spied on Americans disclosure was truly in the public interest. Never mind the New York Times gets a phone call from the President and decides not to publish something. Never mind how senior government officials are allowed to selectively leak information helpful to themselves. Never mind what parts of an anonymous technical disclosure a reporter understood well enough to write about, here are the cables, the memos, the emails, the archives themselves. Others can write summaries and interpretations if they wish (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange and his sources traitors), or you as an individual can simply read the stuff yourself and make up your own damn mind about what the government is doing. Fact checks? There are the facts themselves in front of you. That is the root of an informed public, through a set of tools and freedoms never before available until the internet created them.
Allowing these new tools to be broken over the meaning of the words journalist and publishing will stifle all of what’s left of the press. If Assange becomes the first successful prosecution of a third party under the Espionage Act, the government can then turn that precedent into a weapon to aggressively attack the media’s role in national security leaks. Is a reporter, for example, publishing a Signal number in fact soliciting people to commit national security felonies? Will media employees have to weigh for themselves the potential public interest, hoping to avoid prosecution if they differ from the government’s opinion? The Assange case may prove to be the topper in a long-running war of attrition against free speech.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Why Does the NYT Now Support Assange?
Why did The New York Times, The Guardian, Le Monde, Der Speigel, and El Pais demand that Department of Justice drop most charges against Julian Assange?
The news organizations recently called on the United States government to drop most of its charges (the charges related to hacking directly with then-Army intel specialist Chelsea Manning are unmentioned) against WikiLeaks founder Julian Assange for publishing classified information. In a letter the media outlets said the prosecution under the Espionage Act “sets a dangerous precedent” that threatened to undermine the First Amendment and global press freedoms broadly. “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. If that work is criminalized, our public discourse and our democracies are made significantly weaker. Holding governments accountable is part of the core mission of a free press in a democracy.”
Demanding leniency for Assange, who has been fighting extradition from Britain to the U.S. since his arrest there in 2019, seems a noble act. But a complex history precedes Assange.
In 1971, Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act. A federal court ordered the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper via prior restraint. In the end, the Supreme Court reversed the lower courts and handed down a victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ever since media published secrets as they found them.
But looking at the Times case through the lens of Wikileaks, law professor Steve Vladeck points out “although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause. The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
The Supreme Court left the door open for the prosecution of journalists who publish classified documents by focusing narrowly on prohibiting prior restraint. Politics and public opinion, not law, has kept the feds exercising discretion in not prosecuting the press, a delicate dance around an 800-pound gorilla loose in the halls of democracy. The 2022 Assange letter from the New York Times, et al, is as self-serving (begging for the status quo no matter what happens to Assange the hacker) as it is noble.
Allowing the media to publish is not the same as allowing unfettered access to government secrets. On July 30, 1778, the Continental Congress created the first whistleblower protection law, stating “that it is the duty of all persons in the service of the United States to give the earliest information to Congress or other proper authority of any misconduct, frauds, or misdemeanors committed by any officers or persons in the service of these states.” The Executive has since aggressively used the Espionage Act and other laws to prosecute whistleblowers who leak to journalists.
The closest a journalist ever came to being thrown in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. They then accused former CIA officer Jeffrey Sterling of passing classified information to Risen. After a lower court ordered Risen to testify and disclose his source under threat of jail, the Supreme Court turned down his appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether there existed a gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the Free Press Clause.
In the end, the Obama administration, fearful of public opinion, punted on Risen. Waving a patriotic flag over a messy situation, then-attorney general Eric Holder announced that “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and wasn’t punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into prison for three and a half years. To avoid creating a precedent that might have granted some form of reporter’s privilege under the Constitution, the government stepped away from the fight.
Those same issues now hover over Julian Assange. Should the government decide to prosecute him, there are complex legal questions to be answered about who is a journalist and what is publishing in the digital world — is Assange himself a journalist like Risen or a source for journalists like Sterling was alleged to be? There is no debate over whether James Risen is a journalist and whether a book is publishing. Glenn Greenwald has written about and published online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher. The elements of fact checking, confirming, curating, redacting, and providing context around classified information were all present in the New York Times case with the Pentagon Papers; they are also present with American citizens Risen and Greenwald. Definitions and precedents may be forming.
Assange isn’t an American. He is unpopular, drawn now into America’s 21st-century Red Scare for revealing the DNC emails, supposedly hacked by Russia. He has written nothing alongside the documents on Wikileaks, has done little curating or culling, and has redacted little. Publishing for him consists of uploading what has been supplied. The government could argue that Assange is not entitled to First Amendment protections simply by claiming that a mouse click isn’t publishing and Assange isn’t a journalist. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to national defense without authorization, would apply. He would be guilty, same as the other canaries in the deep mine shaft of Washington before him, no messy balancing questions to be addressed. And with that, a unique form of online primary source journalism would be made extinct.
The 2022 media letter regarding Assange begs the question of why now. On paper, Assange’s situation is unchanged for months. He sits in dank Belmarsh prison in Britain fighting his extradition to the U.S.; nothing new there. On the American side Attorney General Merrick Garland has sought to limit ways the Justice Department can make life harder on journalists. In October, he issued new regulations banning the use of subpoenas, warrants or court orders to seize reporters’ communications records or demand their notes or testimony in an effort to uncover confidential sources in leak investigations. Could it be deal has been made for the U.S. to drop all charges against Assange absent working with Manning on the hack itself? Or is lapdog Britain simply tired of carrying water for the U.S. and demanding, politely, action (hence the Australian government support for media letter?) Has Assange’s health taken a significant turn for the worse?
It may just be that Assange is an easy target for both sides. With him the government is able to mold the legal precedents with such certainty that, where they backed away from other cases in their long-running war of attrition against free speech and the press, this one they may seize. It could be as simple as the self-serving media letter of 2022 is meant to forestall that.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
CIA (Dis)Information Operations Come Home to the US
Reporters joke the easiest job in Washington is CIA spokesman. You need only listen carefully to questions and say “No comment’ before heading to Happy Hour. The joke, however, is on us. The reporters pretend to see only one side of the CIA, the passive hiding of information about itself. They meanwhile choose to profit from the other side of the equation, active information operations designed to influence events in America. It is 2021 and the CIA is running an op against the American people.
Leon Panetta, the Director CIA from 2009 to 2011 explained bluntly his CIA did influence foreign media outlets ahead of elections in order to “change attitudes within the country.” The method, Panetta said, was to “acquire media within a country or within a region that could very well be used for being able to deliver a specific message or work to influence those that may own elements of the media to be able to cooperate, work with you in delivering that message.”
The CIA has been running such information ops to influence foreign elections since the end of WWII. Richard Bissell, who ran the agency’s operations during the Cold War, wrote of “exercising control over a newspaper or broadcasting station, or of securing the desired outcome in an election.” A report on the CIA in Chile boasts the Agency portrayed its favored candidate in one election as a “wise, sincere and high-minded statesman” while painting his leftist opponent as a “calculating schemer.” At one point in the 1980s foreign media insertions ran 80 a day.
The goal is to control information as a tool of influence. Sometimes the control is very direct, simply paying a reporter to run a story, or, as was done in Iraq, simply operating the media outlet yourself (known as the Orwellian Indigenous Media Project.) The problem is such direct action is easily exposed, destroying credibility.
A more effective strategy is to become a source for legitimate media such that your (dis)information inherits their credibility. The most effective is an operation so complex one CIA plant is the initial information source while a second CIA plant acts seemingly independently as a confirming source. At that point you can push information to the mainstream media, who can then “independently” confirm it, sometimes unknowingly, through your secondary agents. You can basically write tomorrow’s headlines.
Other techniques include exclusive true information mixed with disinformation to establish credibility, using official sources like Embassy spokesmen to appear to inadvertently confirm sub details, and covert funding of research and side gigs to promote academics and experts who discredit counter-narratives. The academics may never know where their money comes from, adding to their credibility.
From the end of WWII to the Church Committee in 1976, this was all just a conspiracy theory. Of course the US would not use the CIA to influence elections, especially in fellow democracies. Except it did. By its nature reporting on intelligence always requires one to work with limited information. Always give time a chance to explain.
Through Operation Mockingbird the CIA ran over 400 American journalists as direct assets. Almost none have ever discussed their work publically. CIA documents show journalists were engaged to perform tasks for the CIA with the consent of the managements of America’s leading news organizations. The New York Times alone willingly provided cover for about ten CIA officers over decades and kept quiet about it. Such long term relationships are a powerful tool, so feeding a true big story to a young reporter to get him promoted is part of the game. Don’t forget the anonymous source who drove the Watergate story was an FBI official who through his actions made the careers of cub reporters Woodward and Bernstein. Bernstein went on to champion the Russiagate story. Woodward became a Washington hagiographer. Ken Dilanian, formerly with the Los Angeles Times, the Associated Press, and now working for NBC, maintains a “collaborative relationship” with the CIA.
That’s the tradecraft and the history. The problem for America is once again the tools of war abroad have come home. The intelligence community is currently operating against the American people using established media.
Some of it can’t be more obvious. The CIA always planted stories in foreign media for American outlets to pick up. The Agency works directly with Hollywood to control movies about itself. Turn on any of the advocacy media outlets and you see panels of former CIA officials. Journalist Matt Taibbi even created a list (and since ex-‘s need agency clearance to speak, all are of the officially approved class.) None is more egregious than John Brennan, former Director CIA, who for years touted Russiagate when he knew from information gathered while he was still in office it was all a lie. The uber-lie that Trump was dirty with Russia was leaked to the press most likely by Brennan in January 2017 as the kick off event to the info op still running today.
Brennan’s role is more than speculation. John Durham, the US attorney leading the ongoing “how it happened” Russiagate investigation into the intelligence community, has requested Brennan’s emails and call logs from CIA. Durham is also examining whether Brennan changed his story between his public comments (not under oath, say anything) and his May 2017 testimony to Congress (under oath, watch out for perjury) about the dossier. Reporter Aaron Mate is less delicate, laying out the evidence Brennan was “a central architect and promoter of the conspiracy theory from its inception.” Even blunter is Senator Rand Paul, who directly accuses Brennan of trying “to bring down a sitting president.”
It was all based on nothing but disinformation and the American press swallowed every bit of it, turning the op into a three year tantrum falsely convincing a vast number of citizens their nation was run by a Russian asset. Robert Mueller, whose investigation was supposed to propel all this nothing into impeachment hearings, ended up exercising one of the last bits of political courage Americans will ever see in walking right to the edge of essentially a coup and refusing to step off into the abyss.
The CIA is a learning institution, and recovered well from Russiagate. Details can be investigated. That’s where the old story fell apart. The dossier wasn’t true. But the a-ha discovery was since you’ll never formally prosecute anyone, why bother with evidence. Just throw out accusations and let the media fill it all in for you. The new paradigm included let the nature of the source — the brave lads of the intelligence agencies — legitimize the accusations this time, not facts. Go overt and use the new, unexpected prestige of the CIA as progressive heros to substantiate things.
So in December 2017 CNN reported Donald Trump, Jr. had advance access to the WikiLeaks archive. Within an hour, NBC’s Ken Dilanian and CBS both claimed independent confirmation. It was a complete lie, based on fabricated documents. How do you confirm a lie? Ask another liar.
In February 2020, the Office of the Director of National Intelligence (ODNI) briefed the House Intelligence Committee the Russians were election meddling again to favor Trump. A few weeks earlier, the ODNI briefed Bernie Sanders the Russians were also meddling in the Democratic primaries in his favor. Both briefings were leaked, the former to the New York Times to smear Trump for replacing his DNI, the latter to the Washington Post ahead of the Nevada caucuses to damage Sanders.
In June 2020 The New York Times stated CIA officials concluded the Russians “secretly offered bounties to Taliban-linked militants for killing coalition forces in Afghanistan — including targeting American troops.” The story ran near another claiming Trump had spoken disrespectfully about fallen soldiers. Neither story was true. But they broke around the same time Trump announced his plan to withdraw troops from Afghanistan, aimed at discouraging pro-military voters.
Earlier this month The Washington Post, citing anonymous sources, claimed the FBI gave a defensive briefing to Rudy Giuliani in 2019, before he traveled to Ukraine. Giuliani supposedly ignored the warning. The story was “independently confirmed” by both NBC and The New York Times. It was totally false.
The American system always envisioned an adversarial role for the media. One of the earliest challenges to freedom of the press was the Colonial-era Peter Zenger case, which established the right of the press to criticize politicians free from libel charges. At times when things really mattered and even as other journalists hid under their beds, men like Edward R. Murrow worked their craft to preserve democracy. Same for Walter Cronkite finally reaching his opposition to the Vietnam War, and the New York Times reporters weighing imprisonment to publish the Pentagon Papers.
In each of those instances the handful of reporters who risked everything to tell the truth were held up as heroes. Seeing the Times fighting for its life, the Washington Post co-published the Pentagon Papers to force the government to make its case not just against a rival newspaper, but the 1A itself.
Not today. Journalism is today devoted to eliminating practitioners unwilling to play the game. Few have been targeted more than Glenn Greenwald (with Matt Taibbi as runner up.) Greenwald exploded into a journalistic superhero for his reporting on Edward Snowden’s NSA archive, founding The Intercept to serve as a platform for that work (Greenwald’s downfall parallels Julian Assange, who went from liberal hero for exposing the foundational lies of the Iraq War to zero when his Wikileaks was demonized for supposedly helping Donald Trump.)
Greenwald’s criticism of the media for accepting Deep State lies as truth, particularly concerning Russiagate, turned him into a villian for progressives. MSNBC banned him, and other media outlets ran stories critical of him. Then something very, very odd happened to make it appear The Intercept outed one of its own whistleblower sources. Evidence suggests the source was a patsy, set up by the intel community, and exposed via Matt Cole, one of The Intercept journalists on this story. Cole was also involved in the outing of source CIA officer John Kiriakou in connection with torture claims. Either way new whistleblowers will think twice before turning to The Intercept. Greenwald recently quit the site after it refused to publish his article on Hunter Biden’s ties to China unless he deleted portions critical of Joe Biden.
Greenwald seems to have figured out the intel community’s game, writing “the most significant Trump-era alliance is between corporate outlets and security state agencies, whose evidence-free claims they unquestioningly disseminate… Every journalist, even the most honest and careful, will get things wrong sometimes, and trustworthy journalists issue prompt corrections when they do. That behavior should be trust-building. But when media outlets continue to use the same reckless and deceitful tactics — such as claiming to have ‘independently confirmed‘ one another’s false stories when they have merely served as stenographers for the same anonymous security state agents while ‘confirming’ nothing — that strongly suggests a complete indifference to the truth and, even more so, a willingness to serve as disinformation agents.”
Democracy has no meaning if people simply vote uninformed, as they are propagandized. It will be sport for future historians to mark the thing that most pushed America into decline. Seeing decades of success abroad in using info ops, the CIA and others turned those weapons inward. So seeing her Deep State meddle in presidential politics, simultaneously destroying (albeit mostly with their cooperation) the adversarial media, while crushing faith in both our leaders and in the process of electing them, will certainly be a top qualifier.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Julian Assange and the Future of a Free Press (Long Form)
This weekend I joined a number of people including Dan Ellsberg, John Kiriakou, Scott Horton, and Caitlin Johnstone in a 38 hours online vigil in support of Wikileaks’ Julian Assange. People ask why I did it, because Julian Assange and his Wikileaks organization are at best imperfect in who they are and what they do. But those imperfections are both of interest and do not matter. Supporting him transcends him, because the battle over the prosecution of Assange is where the future of free speech and a free press in the digital age will be decided. Even if you think Assange doesn’t matter, those things do.
Supporting Julian Assange and Wikileaks is complicated. In 2010 a hero to then-opponents of American imperialism in Iraq and Afghanistan while being labeled by others as an enemy of the state for working with whistleblower Chelsea Manning, today most of Assange’s former supporters from the left see him as a enemy of the state for allegedly working with Vladimir Putin to leak the Democratic National Committee emails. Many who opposed Assange’s work from the right now support him for helping defeat Hillary Clinton. Assange is a traitor who runs from justice, or a journalist, or a hero, or a spy, or some Frankenstein with elements of all of the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words generous, warm, or personable rarely are included in their descriptions.
Assange’s biography is challenging to even his staunchest supporters. After Wikileaks’ release of a half million highly classified documents in 2010, including evidence of war crimes and thousands of State Department internal cables, Assange was accused of sexual assault in Sweden under ambiguous circumstances. He was questioned there, but never charged or arrested, and left for the UK. The Swedes decided to continue their investigation, but instead of exercising options via Interpol to question Assange in the UK, instead insisted their inquiries could only be made on Swedish soil and requested the UK return Assange against his will. The British arrested Assange, though he was released on bail. Fearing the whole thing was a set-up to extradite him to the U.S. via Sweden, Assange jumped bail. Fearing the same faux process would see Britain send him to the U.S., Assange then obtained asylum, and later citizenship, from the Ecuadorian embassy in London. After claiming for years they could never interview him outside of Sweden, the Swedes reversed themselves and interviewed Assange in London in 2016. They soon dropped the charges. Britain meanwhile still plans to arrest Assange for failing to appear in court for an eight year old case that basically no longer exists, and will not assure him safe passage out of the UK. Assange has been living inside the Ecuadorian embassy for over five years.
Contrary to popular belief, embassies are not the sovereign territory of their owners. However, the 1961 Vienna Convention on Diplomatic Relations codified a custom that has been in place for centuries when it established the “rule of inviolability.” This prohibits local police from entering an embassy for any purpose without the permission of the ambassador. This is why Assange is safe from arrest as long as he stays within the walls of the Ecuadorian embassy, and of course in their good graces.
The idea of a lengthy stay inside an embassy for asylum is not new. The longest such episode was that of Hungarian Cardinal Jozsef Mindszenty, who spent 15 years inside the American Embassy in Budapest, protected from the Soviet Union. In 1978 Russian Pentecostalists broke into the American Embassy in Moscow, demanding protection from religious persecution. They lived in the embassy basement for five years before a deal sent them to Israel. In 1989, Chinese dissident Fang Li-zhi resided in the American Embassy in Beijing for a year before being allowed to travel to the United States. More recently, in 2012, blind Chinese dissident Chen Guang-cheng spent six days in the American Embassy in Beijing, before then-Secretary of State Hillary Clinton negotiated his safe passage to the U.S. The irony is in all those incidents, the United States was the protector. America today instead looks petty and mean standing alongside Soviet Russia and Communist China in pressing hard against one man aside the broader wave of history.
Should some process deliver Assange into American custody, he would be charged under the Espionage Act, a 1917 law used aggressively by the Obama administration to prosecute whistleblowers, including Chelsea Manning, and by the Trump administration to prosecute whistleblower Reality Winner. Under the Act, Assange would be prohibited from offering a “public interest” defense; his unauthorized possession of classified materials alone would ensure a guilty verdict, in that the Act does not distinguish between possession for journalistic purposes to inform the public, and possession say with the intent to hand over secrets to Russian intelligence. Assange, as with the others prosecuted under the Espionage Act (Edward Snowden would face similar circumstances on trial in America), would be found guilty and simultaneously be denied the chance to defend himself based on a free speech/public interest defense. The Espionage Act was created long before anyone coined the phrase Catch-22, but it seemed to have that spirit in mind.
But support for Assange, as for Snowden and other whistleblowers yet unnamed, is due because the stakes go far beyond one person’s rights and freedoms. What happens to Julian Assange will set precedent regarding free speech, freedom of the press, and the publication of classified and suppressed documents in pursuit of an informed public and representative accountability for many years to come.
The Espionage Act has a sordid history, having once been used against the government’s political opponents. Targets included labor leaders and radicals like Eugene V. Debs, Bill Haywood, Philip Randolph, Victor Berger, John Reed, Max Eastman, and Emma Goldman. Debs, a union leader and socialist candidate for the presidency, was, in fact, sentenced to 10 years in jail for a speech attacking the Espionage Act itself. The Nixon administration infamously (and unsuccessfully) invoked the Act to bar the New York Times from continuing to publish the classified Pentagon Papers.
Assange poses a dilemma for the United States in its ongoing push-pull in balancing the power of the government to protect classified information (rightly or wrongly), the clear guarantees to free speech and a free press in the First Amendment, and the broader concept of the need for an informed populace to challenge their government and make a peoples’ democracy work in practice.
At what point does the need for the people to know outweigh any laws allowing the government to keep it from view, such that someone may expose information, despite its classification? If punishment appears necessary, should the thief be punished, should the journalist who publishes it be punished, or should neither, or should both? The questions become acute in the digital age, where physical documents no longer need to be copied one-by-one, and where publishing is far removed from the traditions, obstacles, safeguards, backdoor pressures, self-restraint, and occasional deep subject matter knowledge of traditional journalism.
A complex and at times ambiguous history precedes Assange. In 1971 Daniel Ellsberg leaked the classified Pentagon Papers to the New York Times. The Papers were a 7,000 page classified history of the Vietnam War prepared under the order of then-Secretary of Defense Robert McNamara. We know now McNamara, while publicly supporting the war, was privately consumed by doubt, and ordered the Papers written as his act of contrition.
The risks for journalists were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act. The Nixon administration found a court to order the Times to cease publication after an initial flurry of excerpts were printed in June 1971, the first time in U.S. history a federal judge censored a newspaper. Things got so dicey the Times’ outside counsel actually quit the night before his first appearance in court, claiming the newspaper, his own client, had indeed broken the law.
Despite such pessimism, the Supreme Court handed down a landmark victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ellsberg was charged under the Espionage Act, though his case was dismissed for gross governmental misconduct and illegal evidence gathering without the underlying issues being addressed, most prominently Ellsberg’s defense he was morally compelled to leak the classified information to the Times, claiming “I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public.”
But looking at the Times case through the lens of Wikileaks, University of Texas law professor Steve Vladeck is careful to point out “Although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause… The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
In its simplest form, the Supreme Court left the door open for the government to prosecute both the leaker who takes the documents (by dismissing the case without setting a precedent) and the journalists who publish them (by focusing narrowly on prohibiting the government from exercising prior restraint.)
What has happened since has been little more than a very delicate dance around the 800 pound gorilla in the halls of democracy. The government has aggressively prosecuted whistleblowers under the Espionage Act (The Obama administration prosecuted eight whistleblowers under the Espionage Act, more than all previous presidential administrations combined) while choosing not to prosecute journalists for publishing what the whistleblowers hand over to them.
In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.
The closest things came to throwing a journalist in jail over classified information was in 2014, when Obama administration Attorney General Eric Holder gave federal prosecutors permission to subpoena New York Times reporter James Risen regarding a former employee of the Central Intelligence Agency. The government accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information it said appeared in his 2006 book State of War. Holder issued the subpoena in line with his July 2013 Department of Justice guidelines on seeking information from the news media. That guidance sought to circumvent a court precedent being set by providing limited, discretionary protection for the media in some civil and criminal proceedings following scandals involving the DOJ seizing phone records and emails of reporters from the Associated Press and Fox News.
Risen refused to comply with the subpoena, which would have required him to disclose his source. After a lower court ordered Risen under threat of jail time to testify, the Supreme Court in June 2014 turned down Risen’s appeal. That left him facing a choice to reveal his source or go to jail. The Court’s one-line order gave no reasons but effectively sided with the government in a confrontation between securing evidence in a national security prosecution and an intolerable infringement of press freedom. The Supreme Court refused to consider whether there existed a sort of gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the free press clause. By not making a new decision, the Court effectively upheld the existing decision by a federal appeals court finding that the Constitution does not give journalists special protection from the law.
That decision was more or less in line with the ambiguous way the Supreme Court has always looked at the unwritten special protections for journalists. The only real ruling on what special rights the media may hold under the free press clause came in 1972, in Branzburg v. Hayes. The Court decided reporters were not shielded from grand jury subpoenas, asserting judges must strike a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.” From time to time lower courts have chosen to interpret that phrase as meaning there is indeed some sort of unwritten balancing test concerning the media, while other courts have read the same words to mean media should be compelled to testify.
In the end of the Risen case, the government, fearful of setting the wrong precedent and confident it otherwise had the evidence to convict Jeffrey Sterling, punted. Waving the flag noblely over a messy situation, Attorney General Holder announced “As long as I am attorney general, no reporter who is doing his job is going to go to jail.” Federal prosecutors asked the U.S. District Court in Alexandria, Virginia to “exclude James Risen as an unavailable witness” and said the jury “should draw no inferences, favorable or unfavorable” based on his absence as a witness.
Risen didn’t testify, and was not punished for publishing classified material by the government’s choice to back away from his case. The alleged leaker, Jeffrey Sterling, was thrown into jail for over two years. In 2015 Google turned over the Gmail account and metadata of a WikiLeaks employee in response to a federal warrant.
No court precedent was set. The door was left open. To avoid a clear precedent that would grant journalists a reporter’s privilege under the Constitution, the government stepped away from the fight. While the balancing question of the “public interest” has been poked at in other contexts, no one has shown where the balancing point is between the government’s need to protect information, a citizen’s right to expose information, and the media’s right to publish it. That all waits for Julian Assange.
Should the government bring Espionage Act charges against Julian Assange, there are complex legal questions to be answered about what if any First Amendment protections if any apply. Assange is not an American citizen and was not under U.S. jurisdiction when his actions regarding classified documents occurred. Is the fact that Wikileaks’ servers reside outside the United States and thus outside the protections of the First Amendment controlling, or does cyberspace lack such boundaries? By the way they chose to bring their case, government attorneys can influence how legal precedent is set on those matters. And if the United States can prosecute someone under those circumstances, any other government could demand foreign reporters anywhere on earth be extradited for violating their laws.
The question also exists of who is a journalist and what is publishing in the digital world where thousands of files can be uploaded to a site instead of waiting for printing presses to run off copies. There is no debate over whether James Risen is a journalist, and over whether producing a book is publishing. Glenn Greenwald, Jeremy Scahill, and The Intercept, who have for years been writing about and placing online highly classified documents given to them by Edward Snowden, have never been challenged by the government as “journalists” or “publishers.” The elements of fact checking, confirming, curating, redacting, and in writing context around the classified information, were present in the New York Times’ case with the Pentagon Papers, and are present with Risen and Greenwald, et al. All involved are American citizens.
Almost none of that applies to Assange. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted information at times and not at others. Publishing in his case consists of simply uploading what has been supplied to him to a website. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment or reporter’s privilege protections whatever they may be — clicking UPLOAD isn’t publishing and Assange isn’t a journalist. The simplest interpretation of 18 U.S.C. § 793(e) in the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization would apply. Guilty, same almost all of the leakers, whistleblowers, data thieves, hackers, and other canaries in the deep mineshaft of Washington, DC before him.
And that really, really matters. Wikileaks sidestepped the restraints of traditional journalism to bring the raw material of history to the people. Never mind whether or not a court determined disclosure of secret NSA programs which spied on Americans disclosure was truly in the public interest. Never mind the New York Times got a phone call from the President and decided not to publish something. Never mind how senior government officials are allowed to selectively leak information helpful to themselves. Never mind what parts of an anonymous technical disclosure a reporter understood well enough to write about, here are the cables, the memos, the emails, the archives themselves. Others can write summaries and interpretations if they wish (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange and his sources traitors), or you as an individual can simply read the stuff yourself and make up your own damn mind about what the government is doing. Fact checks? There are the facts themselves in front of you. That is the root of an informed public, through a set of tools and freedoms never before available until the Wikileaks and Internet created them.
Allowing these new tools to be broken over the meaning of the words journalist and publishing will stifle all of the press. If Assange becomes the first successful prosecution of a third party under the Espionage Act, the government can then turn that precedent into a weapon to aggressively attack the media’s role in say national security leaks. Is a reporter, for example, publishing a Signal number and asking for government employees to leak to her in fact soliciting people to commit national security felonies? Will media employees have to weigh for themselves the potential public interest, hoping to avoid prosecution if they differ from the government’s opinion? The government in the case of Assange may see the chance to mold the legal precedents with such certainty that they will seize this chance where they have backed away from others. The Assange case may prove to be the topper in a long-running war of attrition against free speech.
In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush’s illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush’s reelection. Executives at the Times were told by administration officials that if they ran the story, they’d be helping terrorists. They accepted that. In 2006 the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”
Assange, and those who follow him in this new paradigm of journalism and publishing, have made mistakes while broadly showing courage, not restraint, under similar circumstances and the public is better informed because of it. In the words of one commentator, “WikiLeaks liberates the right to free speech from authorities that restrict access.” Along the way the 2007 release of the Kroll report on official corruption in Kenya affected a national election, while in 2009 Wikileaks exposed the moral bankruptcy of Iceland’s banks. A 2011 Amnesty International report pointed to the role of leaked documents in triggering revolutionary global uprisings. The BBC said Wikileaks revelations were a spark for the Arab spring.
“This is the biggest free speech battle of our lifetimes,” said the Electronic Frontier Foundation. “This is the moment when we will see whether publishers can continue to freely distribute truthful political information online.”
I support Assange because he is someone who fell into a place and time where crucial decisions will be made. Allowing Assange to speak now, and to travel unfettered to Ecuador and permanent asylum will allow others after him to continue to provide evidence when a government serves its people poorly and has no interest in being held accountable. Prosecution of Julian Assange can only come from a nation which fears the noise of democracy and prefers the silence of compliance.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Dear President Trump: Do Not Prosecute Wikileaks
Chelsea Manning, whose information about the war in Iraq first brought Wikileaks to the attention of Americans, will leave prison as a free woman on May 17.However, the U.S. government’s attempts to punish people for bringing war crimes from Iraq into daylight continues, in the form of prosecutions directed against Wikileaks and/or its founder Julian Assange.
I recently signed an open letter in support of Wikileaks, as drafted by the Courage Foundation. Here it is.
Dear Mr. President,
We are journalists, activists and citizens from the United States and
around the world who care about press freedom and are writing to you in
response to the latest threat of prosecution against WikiLeaks for its
journalistic work. We ask you to immediately close the Grand Jury
investigation into WikiLeaks and drop any charges against Julian Assange
and other Wikileaks staff members which the Department of Justice is
planning.This threat to WikiLeaks escalates a long-running war of attrition
against the great virtue of the United States — free speech. The Obama
Administration prosecuted more whistleblowers than all presidents
combined and opened a Grand Jury investigation into WikiLeaks that had
no precedent. It now appears the US is preparing to take the next step
— prosecuting publishers who provide the “currency” of free speech, to
paraphrase Thomas Jefferson. It is reported that charges, including
conspiracy, theft of government property and violating the Espionage Act
are being considered against members of WikiLeaks, and that charging
WikiLeaks Editor, Julian Assange, is now a priority of the Department of
Justice.A threat to WikiLeaks’ work — which is publishing information protected
under the First Amendment — is a threat to all free journalism. If the
DOJ is able to convict a publisher for its journalistic work, all free
journalism can be criminalised.We call on you as President of the United States to close the Grand Jury
investigation into WikiLeaks and drop any charges planned against any
member of WikiLeaks. It was a free and robust press that provided you
with a platform on which to run for president. Defending a truly free
press requires freedom from fear and favour and the support of
journalists and citizens everywhere; for the kind of threat now facing
WikiLeaks — and all publishers and journalists — is a step into the
darkness.Sincerely,
Trustees of Courage
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
I Finally Make It to Wikileaks
Though I believe one of the alleged cables I allegedly wrote while allegedly employed by the alleged Department of State may have alledgedly been included in the 250,000 documents Chelsea Manning most certainly revealed to Wikileaks, I’m not supposed to tell.
But now, thanks to an alert reader (DP, this one goes out to you), I have just found out that I officially made it to Wikileaks.
The “GI Files” (General Intelligence files) published by Wikileaks, feature over five million emails from the Texas headquartered “global intelligence” company Stratfor. They reveal the inner workings of a company that fronts as a publisher, but in reality provides confidential, subscription-based, intelligence services to large corporations, such as Dow, Lockheed Martin, Northrop Grumman, Raytheon and government agencies, including Homeland Security, the Marine Corps and the Defence Intelligence Agency.Wikileaks revealed that on June 13, 2011, one of my blogs posts was blended into an article published by the English-language Jordan Times, which was picked up by the BBC. Stratfor then republished the article, including BBC’s copyright, which included my stuff, as an intelligence product to its paying clients.
Now, the implications of this are several-fold:
— Obviously if you get your news from Stratfor, the BBC or the Jordan Times, stop wasting your time and just read my blog. It’s free.
— How can the BBC copyright something I wrote?
— How can jerks like Stratfor get away with charging people serious coin for republishing things off the internet/BBC/Jordan Times?
— And lastly, I think somebody owes me a check (which I will donate to Wikileaks)
Your move Stratfor.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Smartest Man in the World Supports We Meant Well
Comedian Greg Proops (“Who’s Line is it Anyway?”), who calls himself “The Smartest Man in the World,” gave a shout out of support to We Meant Well, Julian Assange and all those who stand up for free speech.
Listen to the podcast; the whole thing is funny and entertaining but for Mom, the part about me starts at around 50:40 in.
BONUS: The point of free speech, by the way, is the literal freedom to speak. You the listener can change the channel, ignore someone you disagree with, be distracted by your iPad, or listen intently. Your choice. Choice is the operative word, Assange haters and email writers to this blog who continue to propose I conduct impossible sexual acts on myself. Guys, if I actually could f*ck myself I probably would be doing it.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Debate: Wikileaks and Assange: Journalist or Threat to National Security?
From CCTV, a “heated” discussion between Justin Danhof, General Council of the NCPPR, and Peter Van Buren, a former U.S. Foreign Service Officer, on the impact Julian Assange and Wikileaks will have in the world of international relations and national security.
(If the video is not embedded above, follow this link)
P.S. I think I won the debate.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Great Moments in Public Diplomacy, Episode 174: Gagging in Sweden
Sweden is now a year+ into trying to extradite Wikileaks guy Julian Assange from the UK. Sweden claims that the lengthy, complex and very expensive international legal process is necessary so it can question Assange (no charges have been filed) regarding what constitutes rape in Sweden, consensual sex without a condom.Of course no one who doesn’t sleep in a cardboard box under an overpass believes that is what Sweden really wants with Assange. Most sentient beings are certain that Sweden seeks Assange for “questioning” only as a pretext to turning him over to US authorities. The UK, where Assange has been under house arrest for over a year, won’t flip him to the US. Sweden will.
So, in an effort to promote general worldwide hilarity, here’s a Tweet today from the US Embassy in Sweden, celebrating the coincidental first SecState visit to that nation in 36 years:
Hillary-ious!
Seriously, where do they find such public diplomacists, men and women totally lacking lacking in either a) intellect, b) morals or c) all of the above, who are so committed to sucking up that they can publicaly churn out crap like that Tweet? Really, you kiss your mother with that mouth? Talk about needing a condom for protection from something gross. Eeeeew.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Wikileaks Prompts New Security Procedures at State Department
An encrypted WikiLeaks file containing 251,000 unredacted US State Department cables is now widely available online, along with the passphrase to open it. The release of the documents in raw form, including the names of US informants around the globe, has raised concerns that dozens of people could now be in danger.The release has prompted new security procedures at State. The State Department has previously banned its staff from viewing the Wikileaks site, and has punished employees who view the leaked cables, or included links to them on blogs.
The new security measures take things a step further.
According to a Department Notice released today, all State Department employees are now required to take an oath of silence. Similar to monks, no one is allowed to actually speak within the building. To avoid further leaks, communication of an urgent nature will be done via gestures, mime and interpretive dance (PA only). The Department spokesperson, gesticulating wildly, fruitlessly engaged the media in an attempt to explain the new policy. She was saved from further frustration when one reporter produced a Pictionary game set.
Written communication remains a vulnerable point. In response, all reports from the field will be written on white board using dry erase markers, couriered back to Foggy Bottom by eunuchs and licked clean by interns and Entry Level Officers currently being trained for the task.
When a State Department employee now tries to access the Wikileaks site, s/he will find a “warning page” similar to those typically found on porno sites, with one button labeled ENTER and another labeled EXIT.
The Bureau of Diplomatic Security, formerly engaged full-time in witch hunts against Foreign Service Officers who glanced at the Wikileaks site, planned a new role for itself as enforcer of silence. Security personnel wearing T-shirts emblazoned with the slogan “Shut the Barn Door After the Horse has Left” were deployed at strategic spots with roles of duct tape. “It’s for their own damn good,” mimed one uniformed officer.
“We’ve been deaf and blind for a long time,” said a diplomat moments before the new rules took place, “so adding dumb to the list seems a small price to pay for security.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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