Saturday, October 25, 2014


Features

WikiLeaks Case Fuels Debate Over Secrecy, Access Laws

Wikileaks founder Julian Assange (file photo)
Wikileaks founder Julian Assange (file photo)
By Ron Synovitz
A debate is raging about whether WikiLeaks founder Julian Assange committed a crime under U.S. law by publishing classified U.S. government documents on the Internet.

The case has led to calls for national secrecy laws to be tightened around the world. Some legal experts cite a need for revisions to international law in order to better protect confidential diplomatic communications in the age of the Internet.

It has been nearly two weeks since U.S. Attorney General Eric Holder Jr. announced the Justice Department had launched a criminal probe.

"I condemn the action that WikiLeaks has taken," Holder said. "It puts at risk our national security. But in a more concrete way, it puts at risk individuals who are serving this country in a variety of capacities, either as diplomats, as intelligence assets -- puts at risks the relationships we have with important allies around the world."

So far, no charges have been filed by the U.S. Justice Department against Assange or WikiLeaks for the deluge of documents the group has published online, in cooperation with major media outlets, suggesting gaps in the law make it difficult to prosecute. Assange has been arrested on separate charges by the British authorities and faces possible extradition to Sweden where he is accused of rape and sexual molestation, which he denies.

Global Legal War

Ben Saul, the co-director of the University of Sydney's Centre for International Law in Australia, says the lack of a U.S. indictment suggests the Justice Department does not have the evidence it needs to put Assange or WikiLeaks on trial under existing U.S. law.

Saul says that as a result, U.S. officials appear to be waging a kind of "global legal war" against Assange and WikiLeaks, which he says is aimed at discrediting the group as an illegal, even "terrorist," organization.

"Some U.S. politicians and commentators have even called for the assassination or killing of Julian Assange. This is pretty extraordinary and lawless stuff," Saul says. "What this shows about the U.S.'s own conduct is that it is really trying to discredit WikiLeaks by shifting the focus from wrongdoing by the United States in places like Afghanistan, Iraq, spying on the United Nations and so on -- and instead, trying to focus all the legal attention, all the attention on crime and illegality, to WikiLeaks."

U.S. Senator Joseph Lieberman has proposed legislation that would make it easier for prosecutors to bring leakers to trial. Lieberman says WikiLeak's dissemination of thousands of State Department cables and other documents is "just the latest example of how our national security interests, the interests of our allies, and the safety of government employees and countless other individuals are jeopardized by the illegal release of classified and sensitive information."

He says the legislation he has proposed would "help hold people criminally accountable who endanger these sources of information that are vital to protecting our national security interests."

Espionage Act


Lieberman also has said he thinks WikiLeaks violated the U.S. Espionage Act, a law from 1917 that prohibits the unauthorized possession and dissemination of information related to U.S. national defense.

But Holder acknowledged this week that the Justice Department is looking at "other statutes, other tools" for a possible indictment against Assange because of the difficulties in applying the Espionage Act to the WikiLeaks case. Instead, officials say the Justice Department is considering other possible offenses, such as conspiracy or trafficking in stolen property.

Larry Klayman, a former Justice Department prosecutor who founded the government watchdog groups Judicial Watch and Freedom Watch, explains why it would be difficult for Assange to be prosecuted under the Espionage Act or existing antiterrorism legislation.

"The problem here is for the United States to prosecute Assange, and in most other civilized countries, they have to show an intent," Klayman says. "A crime has to be an intentional act, and if Assange did not intend in any way to harm anyone's interests -- and in fact, intended to further the interests of the [people of the] United States and the rest of the world -- that would be a difficult point to try to prove by the United States, that he had an evil motive here to further terrorism. That would be almost impossible to prove in court."

Klayman says the free-press guarantees of the First Amendment of the U.S. Constitution -- including a long history of case law on the right to access government documents of public interest -- would make it difficult for the Justice Department to convict Assange or any of the media outlets around the world that have published leaked diplomatic cables received through WikiLeaks.

"What Assange has done and WikiLeaks has done and what the media does -- 'The New York Times' does this all the time when they receive documents from the government, even if those documents are stolen documents -- they are inclined to publish it," Klayman says. "That's why we have the First Amendment. That's why the media is protected from criminal prosecution.

"In many ways, Assange and WikiLeaks have been serving as a media watchdog releasing information. As long as he did not himself conspire, and WikiLeaks did not conspire, to illegally remove documents from the possession, custody, or control of the United States, Assange has committed no crime."

New Convention Needed

Other commentators, aware of those First Amendment protections under U.S. law, say the best strategy is for the U.S. Justice Department to focus its investigation on who within the U.S. government provided the documents to WikiLeaks in the first place.

The only international law regarding the protection of diplomatic cables is the 1961 Vienna Convention on Diplomatic Relations, a treaty which requires governments to protect diplomatic information of other governments' embassies on their territory.

Saul says a new convention needs to be negotiated to create an international rule that is relevant to information leaks in the Internet age.

"What I'm talking about," he says, "is protecting diplomatic information -- communications which are essential to the proper functioning of international relations. We are not talking about a global rule to protect against the disclosure of all kinds of national military information or national intelligence information or national police or law enforcement information. It's a rule I'm proposing limited to that category of diplomatic communication only, because if you don't protect those communications, the global system of trust and diplomacy really begins to break down and that has some pretty dire consequences for global stability and peace."

Klayman argues against a new international convention to protect diplomatic communications, saying such a system is likely to be thwarted or abused by despotic or totalitarian regimes to protect themselves against disclosure of crimes.

Saul says a new international treaty could alleviate that threat by allowing a public interest exception.

"If you're going to create a rule designed to protect diplomatic communications from disclosure," Saul says, "you need an exception to cover these cases where some information which is truly in the public interest ought to be disclosable and publishable. There shouldn't be any criminal penalty for such disclosures."

But which existing international court -- if any -- would have the jurisdiction to rule on what is "in the public interest" remains an open question.
This forum has been closed.
Comment Sorting
Comments
     
by: Omar al-Shamsi from: Tunisia
December 08, 2010 21:11
His arrest is Abu Gharaib 2 for the imperialist West. All these lies of free media and so on are evident to all now. Finally we see the true face of the political elite that founded imperialism,colonialism, nazism,communism and so on. It realy opened the eyes of many people in my country about the true nature of the "democratic" West.

by: honeypot from: Canada
December 08, 2010 22:34
These cables were downloaded from the US super encrypted, hardened diplomatic network by a foreign power, not some poor sap little private in Iraq. What scares the US is their IT guys now know they were breached but they don't know by who or how much they got. I wonder if there are any cables on Leiberman?

by: Catherine Fitzpatrick from: New York
December 09, 2010 03:10
So it takes a war correspondent to cover this issue? That's a recognition that this is really about a war in cyberspace.

And just because you can't rustle up a legal reason to try Assange, Ron, doesn't mean you can't report the moral condemnations of him that at least your Washington editor Christian Carlyle is willing to make, although not here, but at the NY Review of Books.
http://www.nybooks.com/blogs/nyrblog/2010/dec/07/wikileaks-moral-void/

Shifting the attention of illegality in places like Afghanistan and Iraq? What would you call what terrorists in Iraq and Afghanistan do, Ron? Would you call it illegal? I totally understand the critique to be made of the United States in waging these wars, and make it myself, but I do understand who is doing the lion's share of killing in these wars: the terrorists, the Taliban, Al Qaeda, and related militants.

And I don't see that the WikiLeaks earlier this year about the wars did a damn thing to stop them. There's that cold, hard fact mitigating against the supposed altruism of this bunch.

As for determining intention, Assange doed intend to harm -- indeed. This can be seen in his writings about his own conspiracy going back to 2006 and in his statements in the New Yorker interview and other interviews where he definitely advocates a Leninist "the worse, the better" tactic in forcing the U.S. to become paranoid and closed (in the fake bid for openness Assange coerces) and therefore bringing it to its knees as it violates its own values. Our enemies couldn't do a neater job.

I'd be careful with initiating even a narrowly-defined law that protects diplomatic cables. There is the Vienna convention and it is good enough if enforced. Even before WikiLakes, the Russians and some of their fellow travellers in OSCE have been wanting to force a re-negotiation of those kind of diplomatic rules and make a diplomatic convention within OSCE that in fact might restrict the good deeds OSCE manages to do, and put it under miles of red tape and fear of litigation, and not stop this sort of hacking anyway.

What needs to be done about WikiLeaks is primarily moral, not political, and not legal. Moral. People need to get their heads on straight about what is happening here, which isn't a peace movement, not a children's crusade against war, not "hacktivism" or "transparency" or utopian government. It's vandalism. It's Bolshevism. It's theft, even if difficult to prosecute. It's nihilism. And most of all, itself it is a threat to the civil liberties we have long enjoyed.

If you think none of that matters, try living under WikiLeaks as a "governance system" after they have destroyed states and institutions and see if you still like it.

The rule of law may not be sufficient to tackle the WikiLeaks undermining of civil society, and efforts to fight it runs the risk of becoming uncivil or unlawful themelves, as with all "wars on terrorism". Even so, fighting this cynical nihilism is as important as fighting communism a century ago -- even more, given how thoroughly the Internet and digitalization penetrates every aspect of modern life. The fight starts with an intellectual rejection of the ideology Wikitarianism as collectivist, unfree, unaccountable, undemocratic, and coercive.

In Response

by: Ray F. from: Lawrence, KS
December 09, 2010 17:45
Nice post and perfectly logical for those living in the emerald palace. I'm reminded of the scene where the flying monkey (or was it the witch?) attempted to pull the curtain back down after Dorothy and crew caught sight of the pathetic wizard of oz. Yes, it's ugly and dangerous to question/expose the status quo. What you are advocating, however, is much more perilous over the long-term. Big brother, whether democratic, communist, or socialist, has a tendency to distort the truth to remain in power. This incident might hopefully serve as a necessary correction for the world's indispensable hegemon.
In Response

by: Catherine Fitzpatrick from: New York
December 09, 2010 19:04
I don't live in any Emerald palace, that's silly.

When Secretary Clinton said that WikiLeaks is "an attack on the international community," she was right: it is. This rather fictional virtual world called"the international community" is not just "the indispensable hegemon" but a complex set of aspirations and pragmatic realities that many of the countries of the world maintain -- and which is worth saving because it isn't coerceive or violent or unaccountable, like WikiLeaks.

In fact, the notion that the U.S. is a "hegemon" is really about 50 years past being relevant. China is a world hegemon. Russia is a hegemon in its region, able to control resources and politics. Uzbekistan is a hegemon. Even the Somali pirates are hegemons because no one can defeat them. In that sense, WikiLeaks is a hegemon, too, if it can defeat American security interests.

And that's why I keep pointing to the morality of the issue, which is really the only hook we have so far in addressing this modern challenge. It's wrong to steal. It's not ethical to burn sources. It's misleading to dump information without crucial context. And so on. It is not journalism. It is vandalism. It's vandalism undertaken in a sort of nihilist cause, "the worse the better" which is amply described in Assange's writings.

But you can't get past your infantile obsession with the U.S. as "the evil of the world," which in fact then generates your dangerous correlary that the U.S. "must" be great and good and the most powerful force for world peace -- blah blah. How come the other hegemons never get any of that kind of pressure? Will you piously say we must "hold the U.S. to a higher standard"? Why? Human rights are universal, even if morality isn't.

Just because the U.S. distorts the truth doesn't mean I get to steal their documents and endanger people's lives. If "the war machine" had been ground to a halt by the revelations that even more people in Iraq were killed, I might begin to take the claim seriously that there is now such a thing as "just vandalism" just as there is a notion of "just war" (whose purpose is to end war). But this vandalism only increased cynicism and indifference.
In Response

by: I-do-NOT-want from: a-fascist-FUTURE
December 09, 2010 21:17
The morality is the biggest victim in assaults against Wikileaks and Assange personally. Nobody questions that the leakage of the cables is disturbing and damaging US interests. But the way the US handles the issue is extremely worrying and reminds the methods that China or Iran or other smaller authoritarian or dictatorial regimes have used against their own dissidents. (and btw, they also cited "legitimate" national security issues!). The US' heavy handed approach, which is highly dubious from a legal and moral points of view is causing more damage than the embarrassment caused by the Cablegate release.
In Response

by: Ray F. from: Lawrence, KS
December 09, 2010 21:32
Thanks for the comment. Isn’t our exchange of information helping (just like the wikileak cache) to broaden understanding? Unlike some, I don’t claim to have all the answers, particularly with regard as to how technology is changing how the world works.

Attack yes, but I would certainly not agree with Secretary Clinton. The wikileak revelations are mostly directed against the elites who pretend to run the world.

Talk about silliness! How can you refer to the current system as “worth saving because it isn't coercive or violent or unaccountable.” What? Have you examined what this country is spending on defense and war? Or the planet? SIPRI just released figures saying that the ‘advanced’ countries of the world will spend $1.5 trillion dollars this year alone on these new improved methods of coercion and violence. Or is it because the US, as the leader of the free world, has the largest share of this armed stockpile?

I don’t know what a hegemon is, but I can read statistics. What would you call the country that has about 5% of the world’s population but consumes almost 25% of the energy resources? Is this stealing? Your moral formula sounds like that of Thucydides, “The strong do what they want, and the weak have to suck it up.”

No, I don’t think that the US is evil, but I do think we ought to stop posturing/preaching and learn to live within our means.

I’m guessing that there were plenty of patriotic Americans in 1971 who were incensed when the Pentagon Papers were published. Some must have been certain that these revelations would hurt the noble cause in Vietnam. Others may have even written that this was “just vandalism.” One can never accurately measure the impact of true words.

by: Diogenes from: United States
December 09, 2010 04:23
Funny, but American politicians and pundits didn't show such outrage when American citizens Dick Cheney, Karl Rove, Richard Armitage and Robert Novak broke United States law by outing Valerie Plame as an undercover CIA operative in the mass media, putting the life of a fellow citizen and government agent at risk.

by: Guy Genovese from: Prague
December 09, 2010 09:34
This is really a simple discussion: WikiLeaks as an organization and all of its officers and so on violated Title 18 U.S.C Section 641 PERIOD. It is now up to the Department of Justice to decide if they want to pursue this or not. There should be no debate whether or not WikiLeaks violated US.

Title 18 USC Sec. 641 states: Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted - Shall be fined under this title or imprisoned not more than ten years, or both. A Prosecutors dream; SLAM – DUNK.

My advice to Julian Assange: cancel any vacation plans to the US as you will most likely be met by some folks named FBI……
In Response

by: NO-to-Fascist-State
December 09, 2010 21:09
The issue is indeed simple and clear as day: the US has perfectly legal reasons to prosecute those who stole the cables and leaked them. The US has no legal reason whatsoever to prosecute Wikileaks or its members for disseminating the already leaked information.
In Response

by: Andrew from: Auckland
December 10, 2010 09:24
Most countries legal systems treat the recipient of stolen goods or information as a party to the crime.
In Response

by: Bibi
December 10, 2010 14:29
Then you should similarly prosecute New York Times, Guardian, Times and dozens of other world-class media for disseminating information leaked from the US State Dept cables...

by: vytautasba from: vilnius
December 10, 2010 06:22
Wikileaks may be fulfilling a need for more openess in Government. On another RFE/RL story the headline is "Around 60 countries worldwide are viewed as 'systemically corrupt,'. The powers that be should not be given full control over the flow of information to the people they are supposed to work for. In this day and age it may be that the Internet is the only means available to insure more transparency and opennes in Government. Voters need to be better informed in order to make wiser decisions about who they vote for. An informed citizenry is the best gaurantee for a healthy Democracy-a very Jeffersonian idea.

Most Popular