Thursday, December 16, 2010

House Judiciary Committee hearing on WikiLeaks, Espionage Act, and First Amendment

"(The Justice) department appeared to be attracted to the possibility of prosecuting Mr. Assange as a co-conspirator to the leaking because it is under intense pressure to make an example of him...." (NY Times)  Map of Press Freedom (Reporters Without Borders 2007)

A committee of the US House of Representatives will hold a hearing on WikiLeaks on Thurday.  The first Congressional hearing on Wikileaks could be the last of its kind.  In January the Republicans take control of House committees.   With the US government itching to prosecute WikiLeaks founder Julian Assange, mainstream media outlets doing their best to smear WikiLeaks (here, here, here),  and -- not surprisingly given the media coverage -- US public opinion turning against the online publisher (chart) the stakes are high.   

As of December 16, here is a list of recent legislative and judicial threats to the First Amendment (freedom of speech, a free press) originating from United States lawmakers:
  1. Last week, Attorney General Eric H. Holder Jr. said he had just authorized investigators to take 'significant' steps against WikiLeaks and Julian Assange,  declining to specify them.  (NY Times)
  2. "Julian Assange's British attorney, Mark Stephens, said Monday a secret US grand jury had been set up in Virginia, just outside Washington, to work on charges that could be filed against the WikiLeaks founder. (AFP)
  3. Thursday the NY Times reported that "Federal prosecutors... are looking for evidence of any collusion in his early contacts with an Army intelligence analyst suspected of leaking the information.  Justice Department officials are trying to find out whether Mr. Assange encouraged or even helped the analyst, Pfc. Bradley Manning, to extract classified military and State Department files from a government computer system. If he did so, they believe they could charge him as a conspirator in the leak, not just as a passive recipient of the documents who then published them."  The advantage of this approach, explains the Times, is that that the government could prosecute WikiLeaks for a crime that would not also implicate the newspapers.  (NY Times)
  4. "Lieberman ... joined his colleagues in introducing a bill dubbed the SHIELD Act in both chambers." (Hill)  Specifically, the SHIELD Act,  S.4004, is a "A bill to amend section 798 of title 18, United States Code, to provide penalties for disclosure of classified information related to certain intelligence activities and for other purposes."  
In addition to strictly legislative or judicial action, lawmakers have exerted pressure on companies and media organizations.   This brings us to Thurday's hearings.   The Hill reports:
The House Judiciary Committee has released the witness list for Thursday's hearing on "the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks," which features former Green Party presidential candidate and consumer advocate Ralph Nader.
Looking at the House Judiciary Committee website, it's clear that this committee, under the leadership of Congressman John Conyers Jr. (D) has probably done at least as much as any organ of the federal government to advance civil liberties (that's not saying much, of course).  Not only has the committee held hearings on torture and the establishment of "black sites" under President Bush, Chairman Conyers has voiced strong criticism of the Obama Administration's record on civil rights, noting "progress has been not nearly enough, and ... positives steps are in many ways undermined by other disappointments."

One question on the minds of civil libertarians is whether any US Congressmen will stand up for the First Amendment at Thusday's hearing by denouncing calls to prosecute Assange and WikiLeaks.  So far on Capitol Hill, only Congressman Ron Paul, the libertarian Republican, has been outspoken in defense of WikiLeaks.   Many others have threatened it:
The same day of Assange's arrest Sen. Dianne Feinstein (D-Calif.) penned an op-ed arguing WikiLeaks had violated the Espionage Act by possessing or transmitting information that could endanger national security. The Act also makes it a felony not to return such information to the federal government. Feinstein's stance was echoed by Sens. Kit Bond (R-Mo.) and Joe Lieberman (I-Conn.)
I've heard that the hearing will mark the first time in years that Ralph Nader -- once a force on Capital Hill -- has been invited to give testimony.   The original Hill article continues:
The panel is composed mainly of legal scholars and attorneys who may be able to discuss the implications of prosecuting WikiLeaks and founder Julian Assange for publishing classified diplomatic cables and other materials leaked to the organization.

Free-speech advocates fear the same legal arguments could be used to prosecute news organizations that publish information in defiance of the government.

The Obama administration has responded by arguing WikiLeaks is not a journalistic organization and doesn't merit the same protections as traditional media organizations. The government has also reportedly pressured companies to cut off their business relationships with WikiLeaks.
Here's a list of speakers invited to the committee hearing (with comments):
  • Abbe Lowell, partner at McDermott, Will and Emery.
  • Geoffrey Stone, professor of law and former dean, University of Chicago Law School.
  • Thomas Blanton, director, National Security Archive, George Washington University.
  • Kenneth Wainstein, partner at O’Melveny and Myers (Wainstein was appointed Homeland Security Advisor by President George W. Bush on March 30, 2008).
  • Gabriel Schoenfeld, Hudson Institute (From 1994 to 2008 served as senior editor of the neoconservative magazine Commentary).
  • Steve Vladeck, professor of law, American University (was interviewed about WikiLeaks here, Vladeck spoke at a previous hearing on the Espionage Act, presenting this paper).
  • Ralph Nader, legal advocate and author (An Unreasonable Man).

UPDATE: Jotman's first report on Thurs. the House Judiciary Committee Hearing.


  1. According to this Foreign Policy Magazine piece, one of the largest sources for Wikileaks data/docements is a government run espionage operation that was "mining" data all over the world. Wikileaks detected the government run operation (U.S. Gov/NSA???) and "piggy-backed" on it gaining access to all the same info. So it may turn out that the U.S. Government itself "illegally stole" a large chunk of the very information they are intending to "prosecute" Wikileaks for "stealing"...

  2. Now that we see what WikiLeaks has actually got, the old claims seem more credible.

    But then how does the Bradley Manning story fit into all that?

  3. Not all the data/documents are coming from the wikileaks "piggyback" on the government snooping/collection operation, just some. There are also the other more mundane sources such as Bradley Manning, various whisteblowers, etc. But it would seem to me that the government's greatest fear would be to have its own super large-scale collection operation revealed.....

  4. Evidence needed in order to expose and prosecute public servants for criminal behavior, and especially so as regards war crimes, cannot be protected through any national security ordinance apart from facilitating and encouraging governmental malfeasance and crimes against humanity. For justice to prevail there cannot be any provision in law whereby evidence relating to criminal acts is esteemed protected and beyond public scrutiny; for that course would insure the eventual collapse of the government itself due to internal corruption. Indeed, Wikileaks may have provided the remedy needed in order to restore the Republic to its former glory as a bastion of human rights, democracy, and liberty. Let's hope that the people of the United States, guided by men of integrity, and determined not to be controlled by fear, will humbly use this situation to prove to the world that they are indeed committed to the noble principles established by the US Constitution.


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