December 5, 2010

More on Cablegate: The Government's Tactical Blunder

The federal government is now telling soldiers and federal workers not to read the diplomatic cables being published by WikiLeaks.

From AFP:

THE US military in Iraq is trying to prevent its soldiers from viewing WikiLeaks documents and has posted a web advisory suggesting they could be breaking the law, a spokeswoman said today.

From the NY Times:

In a classic case of shutting the barn door after the horse has left, the Obama administration and the Department of Defense have ordered the hundreds of thousands of federal employees and contractors not to view the secret cables and other classified documents published by Wikileaks and news organizations around the world unless the workers have the required security clearance or authorization…

The directive applies to both government computers and private devices that employees or contractors might have, as long as they are accessing the documents on nonclassified government networks.

Now tactically speaking, is this stupid, or this stupid?  If you don’t want someone to read something, the worst thing you can do is tell them not to read it.  I have a friend who was raised in a fundamentalist Christian household.  Growing up, his dad forbade him from reading Stephen King books.  Predictably enough, this just created a temptation that probably wouldn’t have existed otherwise, and my friend made sure that he read as many Stephen King books as he could.

I thought the government’s responses to the release of both the Afghan and Iraq War Logs were much smarter.  Regarding the Afghan War Logs, Obama claimed that “these documents don’t reveal any issues that haven't already informed our public debate on Afghanistan.”  Two months later, just before WikiLeaks published the Iraq War Logs, the Pentagon “said it [did] not expect big surprises.”

Doesn’t the government realize that the American people really don’t care about anything important?  They love Dancing with the Stars, they love football, they love trivial Hollywood gossip.  Hilary Clinton ordering diplomats to steal UN officials’ credit card numbers and DNA material?  Yawn.  The US tried to prevent German authorities from prosecuting a group of CIA thugs who had kidnapped and tortured a completely innocent man?  Time to change the channel.  The cables reveal, as Noam Chomsky puts it, that our leaders have “a profound hatred for democracy”?  Time to run out to the shopping mall and buy more worthless crap.

But by making such a fuss over the cables, by telling people not to read them, the government just might encourage people to do exactly that. 

37 comments:

Bob said...

Yeah, that is incredibly stupid. I mean, that is George W. level stupid. Whatever was released, it's too late for that stuff now. What they can do is reduce the chances that other people will do the same with other classified data.

For example, by destroying (one way or another) the lives of the traitors and spies responsible. Execute or imprison for life (upon conviction) anyone they can capture, assassinate anyone they can't. None of this secret assassination stuff either. I think Obama should get out there on national TV and announce a $50 million bounty for whoever brings Assange's head to America, whether he is still attached to it or not. If it comes in unattached, stick it on a pike in front of the White House. "Nothing say's 'obey me' like a bloody head on a fence post." -Stewie

Don Emmerich said...

Yes, of course, because you don't value the rule of law, and you don't value traditional moral values. As you've made clear over the past several weeks, you're an insecure, depraved, backwards-thinking tribalist.

Bob said...

Of course I value the rule of law. The applicable laws here are the laws governing espionage and warfare. International norms is that when someone is spying on you, and you can't capture them for whatever reason, you can kill them. Spies are not protected by the Geneva Conventions.

As for "traditional moral values", when someone is exposing your people (e.g., U.S. allies) to execution by your enemies by outing them as your people, the traditional thing to do is kill them. Only in the last few decades have people in the West turned into a bunch of moral cowards that would rather let an enemy murder them than kill the enemy first.

I blame TV and movies. How many times have we seen the hero let the villain go, knowing he would kill again or reveal the hero's secret identity and thus get the hero and his family and friends killed, rather than kill a momentarily vulnerable opponent who wasn't a direct threat at that instant. Then, rather than taking it to the logical conclusion of having the villain kill again, or having the secret identity revealed and the hero's family killed, some deus ex machina saves the hero from the natural consequences of his false morality. The villain turns and attacks, giving the hero license to kill him. The villain gets killed by accident or by another villain, incidentally preventing disclosure of the secret.

The real world doesn't work that way. Sometimes the choice is "kill Assange or let him keep killing America's allies by turning them over to the enemy".

Let me ask you, if you were hiding Jews in Nazi occupied France, would you kill a Frenchman who was a Nazi collaborator to prevent him from revealing the Jews to the Nazis? No weaseling out of this one, no deus ex machinae, just kill or be revealed, pick one.

Don Emmerich said...

Assange is a spy? What's your evidence that he's ever spied on anyone?

All Julian Assange has done is publish government documents given to him by someone within the US government, presumably Bradley Manning. He's doing exactly what the New York Times did with the Pentagon Papers, and the Supreme Court ruled that the Times had the constitutional right to publish the papers.

And who has died because of WikiLeaks? Name one person who has died because of WikiLeaks.

Bob said...

Khalifa Abdullah.

http://www.newsweek.com/2010/08/02/taliban-seeks-vengeance-in-wake-of-wikileaks.html

What's more Assange knows he is getting people killed:

http://www.nypost.com/p/news/international/taliban_seeks_vengeance_on_afghans_cy9V6VfsOcOW3982DAC44O

Questioned by Australian news program "Dateline" as to whether their release may lead to Afghan informants named in the documents being killed, Assange said it was possible.

"It's absolutely not something I want, but ... the possibility of that is unavoidable," the Australian said.

Others have been receiving death threats. Of course, since the Taliban haven't announced that they found out about him on Wikileaks, you can't be certain that any particular death is the result of that. If Frankie the Stool Pigeon gets outed by the NYT and gets murdered by the Mob a few days later, can you (Joe Citizen) prove that the Mob got the info from the NYT? Nope. Could you charge the NYT editor? Possibly.

BTW, the opinion in the Pentagon Papers case didn't say that the NYT and its employees couldn't be criminally charged with espionage, in fact they explicitly left open the possibility of criminal prosecution (from the SCOTUS opinion):

"terminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do."

Don Emmerich said...

“What's more Assange knows he is getting people killed.”

Because Assange admitted there was a POSSIBILITY that people MIGHT get killed, that means he KNOWS he’s getting people killed? How does that follow?

Don Emmerich said...

So again, you can give me absolutely no evidence that anyone has died as a result of WikiLeaks.

All you can say is that, Well, it'd be a tough thing to prove. But it wouldn't be that difficult to prove. The US has the names of the people who appeared in the Afghan Logs. If any of these people were killed by the Taliban, then you might be able to say that it was possible that they were killed because of the leaks. But you can't do that, because, as far as I know, these people haven't been killed.

Don Emmerich said...

You’ve yet to tell me what specific law Julian Assange has violated.

Regarding the Pentagon Papers, first of all, you’re not quoting the Supreme Court’s decision. You’re quoting Justice White’s opinion.

Secondly, if the Supreme Court ruled that the NY Times had the right to publish the Pentagon Papers, why wouldn’t WikiLeaks also have the right to publish these latest diplomatic cables? The Pentagon Papers were actually given a higher level of classification than the current diplomatic cables. The Pentagon Papers were classified top-secret, while these cables are just labeled secret or classified.

Don Emmerich said...

The US government has an astonishing amount of blood on its hands. We killed hundreds of thousands of Iraq civilians with our sanctions in the 1990s. At least 100,000 more Iraqis died as a result of our invasion and subsequent destruction of the country in 2003. Every week, we're killing civilians in Afghanistan. Every week, innocents are being unjustly imprisoned and murdered by the many puppet dictators we subsidize throughout the Muslim world. Every day, innocent Palestinians are being deprived of their most basic human rights by the US-backed Israeli regime.

So Julian Assange comes along and tries to expose what the US is really doing throughout the world. He believes that that the American people have a right to know of many of the evil deeds it leaders are doing in secrets. So he releases documents showing that it was American policy was to turn a blind eye to the Iraqi government's torture of detainees. He releases a document showing that, despite their claims to the contrary, the US was responsible for a 2009 air strike in Yemen. He releases a document showing that Hilary Clinton ordered US diplomats to steal the credit card numbers and even DNA material of UN officials.

The American people have a right to know these and many other revelations made by WikiLeaks. In an open democracy--you know, where we supposedly have government of the people, by the people, and for the people--citizens have a right to know such things.

Don Emmerich said...

And yet you want the US government to murder Julian Assange. You still can't cite one specific law that Julian Assange has violated. You can't give me one shred of evidence that anyone has been killed because of the documents WikiLeaks has released. Yet you want the US government to murder Julian Assange, a man who has risked his life to tell the American people things that they have the right to know.

Bob said...

Laws against conspiracy to commit murder. The Espionage act of 1917. Laws against aiding and abetting murder. Laws against murder. Extortion ("insurance" file). Probably some kind of charges based on publishing those soldiers' SSNs.

That's not counting the rape cases in Sweden. BTW, despite the spin about it just being condom use, one of the women is alleging he pinned her down and forced her.

Beyond that, you don't have to commit a crime to be a legitimate target in a war. The Germans who shot the Allied forces on D-Day weren't committing a crime, but that didn't mean that they weren't legitimate targets.

I don't think the government should murder Assange for telling the American people things they have a right to know. I think the government should have him killed as an act of war for telling America's enemies things they have no right to know.

Of course I can't give you evidence, I'm just an ordinary citizen, not a spy. Of course, the U.S. is kind of in a bind here. If they do know of people getting killed, revealing it would be good for the PR battle against Assange, but terrible for recruitment of new informants. Not much of a recruiting poster, is it. "Become a secret informant of people whose inability to keep a secret got your predecessor deceased.

As for the credit cards and DNA, nothing evil about spying on diplomats. Some of them are spying on us, so having their DNA handy to compare to crime scenes is a good thing. It's not even illegal to collect it if it is off of a cup or cigarette butt they leave behind.

As for the sanctions. Hussein chose to defy the world, that's why the sanctions were imposed. Then he chose to starve his people to death, so he could spend the money on his military and self aggrandizement rather than buy food.

As for the Iraq war, it was a bad idea based on cooked data. Anything in the cables that we didn't already know? Anything that proves Bush and Co didn't just drink the Koolaid themselves?

If he were just exposing wrongdoing, and not damaging national security, then he wouldn't be a legitimate target. Instead, he chooses to divulge information that has no legitimate purpose.

Still waiting for you to respond about how publishing the SSNs of soldiers and a "how to" manual for thwarting our IED jammers is legitimate. Or do you just think anything that hurts America is automatically justified?

Don Emmerich said...

Again, you can't give me any specific laws Assange has broken. You can list the names of different laws (wow, good for you!), but you can't tell me in what way Assange has broken those laws.

You can't give me any evidence that the WikiLeaks revelations have led to anyone being killed.

Can you explain to me how these revelations are all that different than the revelations which journalists make all the time? Journalists made the public aware of the the CIA's secret blacksites. One could argue--indeed people did argue--that the reporters who made this revelation was giving aid and comfort to the enemy and should have been prosecuted. Do you agree?

Do you know what the First Amendment is? Does it mean anything to you? Do you understand what the Supreme Court ruled in the Pentagon Papers case?

Don Emmerich said...

Do you still insist that “Assange knows he is getting people killed”?

Don Emmerich said...

You still haven't answered this question: "If the Supreme Court ruled that the NY Times had the right to publish the Pentagon Papers, why wouldn’t WikiLeaks also have the right to publish these latest diplomatic cables?"

The Pentagon Papers, I pointed out, were actually given a higher level of classification than the current diplomatic cables. The Pentagon Papers were classified top-secret, while these cables are just labeled secret or classified.

Don Emmerich said...

Do you think the American people have the right to know any of the WikiLeaks revelations?

Do we have the right to know that our government deliberately ignored reports that the detainees we were handing over to the Iraqi government were subsequently being tortured? Do we have the right to know that our government is dropping bombs in Yemen?

Have you ever read '1984'? If so, do you sympathize with Winston or Big Brother?

When the government commits an act of wrongdoing, do you think journalists have the right to expose this wrongdoing, even when the government claims that doing so endangers "national security"?

Bob said...

You asked for specific laws, I gave you specific laws. Providing the name and location of an informant to someone who is going to kill him is murder. Even if it isn't intentional murder, it falls into the category of murder 2, depraved indifference to human life. As for extortion, threatening to release information if you are arrested that a government doesn't want you to release is extortion. The crime is complete when the threat is made, you don't have to actually release the information.

Criminal facilitation (in murders) doesn't require (in some jurisdictions) that the crime be committed. It is a crime to "provide" a person with "means or opportunity" to commit a crime "believing it probable that he is rendering aid to a person who intends to commit a crime."

Assange has acknowledged in interviews that his actions are going to allow the Taliban to murder informants, that wikileaks will have "blood on its hands". By providing the information, he is providing the means to commit a crime. They couldn't commit the crime without the information he is providing and he knows that he is rendering aid to them.

In other words, if you give the identity of a police informant to the Mob, you can be charged with a crime, whether they actually kill him or not. If you steal credit card information and post it online, you have committed a crime, whether anyone uses it or not.

None of which really matters since governments can legitimately assassinate people who pose a danger to national security whether that person is committing a crime or not.

The Supreme Court didn't rule that the New York Times had the right to publish the Pentagon Papers. They ruled that the government couldn't stop them from doing so in advance. There was no detailed written opinion in the case. However, the concurring opinion of White (as you pointed out) said they that denying injunction didn't mean the government couldn't go after the NYT for criminal charges later. They simply chose not to.

Bob said...

As to "right to know":

That our government was turning over detainees to be tortured? Yes.

That we (rather than the Yemenite government) were bombing al-Qaeda in Yemen? No. We were doing so with the permission of the Yemenite government. The YG can't help us openly against our enemies (who would cheerfully murder you because you are American) because terrorism against the U.S. is very popular in Yemen.

We aren't talking about claims that "exposing wrongdoing" is endangering national security. We are talking about claims that posting information that has nothing to do with wrongdoing is endangering our allies lives. When someone is outing your spies, you don't wait until one of them gets killed, you just kill the SOB.

I notice you are still dodging the question of what legitimate purpose is served by posting soldiers' SSNs and technical data on the U.S. counter explosives technology. Why is that? You just don't want to admit that you don't care about exposing wrongdoing, you just want Americans to get hurt? If that isn't it, then quit dodging. Answer the question. What legitimate purpose is served by either of those.

For that matter, what legitimate purpose is served by publishing a list of what the U.S. considers to be vital targets?

Bob said...

Oh, as to 1984, haven't read it, but I am aware of the cultural reference. My sympathy is with Winston. Difference being that Big Brother was a dictator keeping secrets for illegitimate and harmful reasons. The U.S. is a free society and most of the government secrets Wikileaks is spilling are kept for legitimate (or at least harmless) reasons. One of the reasons we can afford to have a free press is that the journalists by and large are responsible about the distinction. Bob Novak notwithstanding.

Don Emmerich said...

Give me a specific statute that Assange has violated and give me an argument that Assange has violated that statute.

You're so convinced that Assange has broken the law, but even legal experts can't figure out what law he's broken:

http://www.politico.com/news/stories/1210/45843.html

Don Emmerich said...

You still haven't shown me that anyone has died because of WikiLeaks.

You still haven't proven that Assange intends to kill innocents.

Bob said...

I told you. Khalifa Abdullah. Death by Wikileaks. I'm not playing Xeno's paradox with you. Where I provide more and more info and you keep demanding "well what is the definition of intent". So last one and then I give up on educating you since you will keep moving the goalposts.

Murder is a crime at common law (U.S., U.K., many former British territories) regardless of any specific statute.
http://en.wikipedia.org/wiki/Murder
"The elements of common law murder are:

1. the killing
2. of a human being
3. by another human being
4. with malice aforethought.[4]"

"Malice aforethought includes: Reckless indifference to an unjustifiably high risk to human life (sometimes described as an 'abandoned and malignant heart')."

By releasing the names and locations of American allies, he has acted with reckless indifference to an unjustifiably high risk to human life.

Legal experts have no problem figuring out that he has committed several crimes. The problem is proving that the specific murder victims whose names he provided to the Taliban were killed as a result of the information he provided.

For example, both Aldrich Ames and Robert Hanssen independently gave the USSR the names of the same 3 of our agents (two were executed as a result). So do you charge Ames with murder or Hanssen, or both, or neither? The facts say they got those men killed, but proving it in court is impossible. That's why we have laws against espionage, so giving out information that is liable to get someone killed is a crime regardless of whether you can prove it actually killed them.

Of course, the difficulty of proving the exact victims and causal link is why governments assassinate enemy agents in foreign countries, rather than trying to extradite them.

Bob said...

18 U.S.C. 793

"(e) Whoever having unauthorized possession of, access to, or control over any document... relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates... the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it..."

So lets see. Unauthorized possession? Check. Relating to national defense? Check. Reason to believe could be used to the injury of the U.S.? That is the stated reason to release the documents. Also, he doesn't have to subjectively believe it, just have reason to believe it. The fact that the U.S. told him the release would injure the U.S. is enough for "reason to believe". Willfully communicates to unauthorized people? Check.

BTW, "the good will outweigh the damage" is not a defense, even if it were true.

That alone is enough to get him 10 years. Per document I think. Of course he also failed to deliver them on demand when employees of the U.S. demanded it (letter they sent to him).

Oh, and other parts of the statute allow them to go after wikileaks assets under civil forfeiture.

Don Emmerich said...

Trevor Timm of the New York Law School Review Law Review writes:

As made clear in the Pentagon Papers case, the word “communicates” was never meant “to encompass publication” or to affect the press. Congress included the word “publish” in three other sections of the Act but intentionally left it out of 793. As the legislative history of this provision states, “Nothing in this Act shall…in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States.”

Justice Douglas referenced the legislative history in his concurring opinion, when he wrote of Section 793, “it is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act.”

Bob said...

Then of course there is this little gem under 18 U.S.C. 794

(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates... to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing... or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry...or any other major weapons system or major element of defense strategy.

Intent or reason to believe releasing the info would injure the U.S. or advantage a foreign government? Check. Communicates directly or indirectly to any faction or party in a foreign government? Check. Document relating to national defense? Check (see IED jammer, agents identities, etc.).

For imprisonment of any length of time up to life in prison, that alone is enough.

If they can prove one of our agents died as a result of identification by a foreign power of the agent, then the perp is eligible for the death penalty.

Oooh, I just realized. Assange doesn't even have to have released their actual name. Suppose they capture a Taliban laptop that shows that a Taliban agent deduced the identity of a redacted agent from the info that was released and then killed him. As the statute is written, that's enough to make him death penalty eligible. I guess this is the U.S. answer to "loose lips sink ships".

It's a bit of a stretch to say that the IED jammers are a "major element of defense strategy". But if they are, that is a death penalty offense too.

Oh, and to answer your next question: Yes, people have been convicted and executed under this statute. Julius (and more importantly Ethel) Rosenberg were put to death under this statute. Ethel didn't have any authorized access to classified material. She still did the sit-down dance in the electric chair for passing it along to our enemies.

So, got any coherent argument that Assange didn't commit every single element necessary to be guilty of this crime?

Don Emmerich said...

Given the fact that WikiLeaks has made such a concerted effort to redact the documents, it seems clear that it is not guilty of malice aforethought. Former federal prosecutor Baruch Weiss essentially made this point in a recent WaPo op-ed:

http://www.washingtonpost.com/wp-dyn/content/article/2010/12/03/AR2010120303267.html?sid=ST2010120303076

Don Emmerich said...

From Reuters:

U.S. authorities could face insurmountable legal hurdles if they try to bring criminal charges against elusive WikiLeaks chief Julian Assange, even if he sets foot on U.S. soil.

The Justice Department is investigating a series of leaks of hundreds of thousands of classified U.S. documents that the whistleblower website has provided to news media and made public on its own website.

But three specialists in espionage law said prosecuting someone like Assange on those charges would require evidence the defendant was not only in contact with representatives of a foreign power but also intended to provide them with secrets.

No such evidence has surfaced, or has even been alleged, in the case of WikiLeaks or Assange, an Australian-born former computer hacker who has become an international celebrity.

http://www.reuters.com/article/idUSTRE6B00F020101201

Don Emmerich said...

From NPR:

Scott Silliman, a law professor at Duke University, said any U.S. indictment of Assange requires close analysis.

"They have got to actually show that he came within the context of the Espionage Act," Silliman said. "And in my judgment, that's not an easy case to prove."

That's because Assange could argue that he made U.S. diplomatic cables public for a legitimate reason — to influence foreign policy — forcing prosecutors to demonstrate that he acted instead to help America's enemies.

The Justice Department recently dropped an espionage case against two [AIPAC] lobbyists because of that high legal bar, which makes focusing on the people who passed the information to WikiLeaks a simpler legal call.

http://www.npr.org/2010/12/01/131730882/prosecuting-wikileaks-it-s-not-going-to-be-easy

Bob said...

Nothing in the article you cited about malice aforethought. Just about "knowledge" that the documents were detrimental. Mr. Weiss should have read the statute. It requires "reason to believe" not actual belief. The U.S. government told him that the documents would damage the U.S. therefore he had "reason to know" whether he actually believed them or not. They also demanded the return of the documents. Not returning them is a separate crime. Even if he did not have reason to know they were damaging, merely not returning them when they were demanded was a felony punishable by a long prison sentence.

As for "in contact" amazing how you can find an expert to say anything. Read the law. No requirement of collusion or direct contact. Just that he communicated it to them. He put it out there, they read it. In fact 794 even says "directly or indirectly [communicates]".

As for Mr. Silliman: there is no requirement for intent to injure, only "reason to believe" that it _could_ be used to the injury of the U.S.

Also, the reporter (not Silliman) is the one who said "because Assange could argue a legitimate reason". Unfortunately for Assange, acting for a "legitimate" reason isn't a valid defense.

The sad truth is that most lawyers and especially most law professors are not very careful when reading statutes. Most people read for gist and not word by word. They see the word "intent" and then go for coffee instead of reading "or reason to believe could be used".

As for the AIPAC case, that was a much tougher case to make. They were releasing information to an ally. The information was given to them in a way that U.S. officials often gave information to allies when the government wanted the allies to know something, but didn't want to officially inform them. In short, they thought it was an authorized leak. Assange can't make that claim.

If the AIPAC guys had been told "releasing this will damage the U.S." they would have been guilty if they released it.

Assange was told "releasing this will damage the U.S." He is guilty.

Stop citing irrelevant authorities that haven't done their homework and do yours. Read the statutes. Can you refute anything I have said, or are you just going to keep citing people who haven't read the statutes? Can you find one element required for a conviction that he hasn't done? Can you find one defense

Don Emmerich said...

Again, tell me what specific statute Julian Assange has broken. The only statute you've cited is 793, and you haven't refuted the argument I provided.

Don Emmerich said...

Not sure why your last comment isn't posting. I clicked "publish" on the Blogger Comment Moderator.

Anyway, you cited 794(a). A few points.

(1) 794(a) uses the term "communicate," not "publish," and as Justice Douglas wrote in the Pentagon Papers case, it seems clear that the authors of the Espionage Act didn't use the terms interchangeably. When they meant to ban journalists from publishing certain material, they were sure to specifically ban PUBLISHING that material. Douglas notes the term "publish" is included in the act three time:

794 (b) applies to "Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates . . . [the disposition of armed forces]."

Section 797 applies to whoever "reproduces, publishes, sells, or gives away" photographs of defense installations.

Section 798 relating to cryptography applies to whoever: "communicates, furnishes, transmits, or otherwise makes available . . . or publishes" the described material.


(2) Even if you ignore this argument, it's not immediately clear to me what 794(a) means by "indirectly communicates." The meaning of any given term is dependent upon the context in which that term is used. To understand the meaning of "indirectly communicates" here, we'd have to analyze the original act's wording, study what other things its authors said about the act at the time, etc.


(3) It's not at all clear that Assange INTENDED to cause injury to the United States.

Don Emmerich said...

(4) Just because the US government told Assange that publishing the documents would cause injury to the US, it doesn't mean that he had REASON TO BELIEVE that publishing the documents would actually do so. A few points here:

(a) As many of the documents reveal, the US government frequently lies. Why should Assange have believed that this lying government was telling him the truth here?

(b) As Baruch Weiss points out:

Well before publishing the cables, he wrote a letter to the U.S. government, delivered to our ambassador in London, inviting suggestions for redactions. The State Department refused. Assange then wrote another letter to State, reiterating that "WikiLeaks has absolutely no desire to put individual persons at significant risk of harm, nor do we wish to harm the national security of the United States."

In that second letter, Assange stated that the department's refusal to discuss redactions "leads me to conclude that the supposed risks are entirely fanciful." He then indicated that WikiLeaks was undertaking redactions on its own.

http://www.washingtonpost.com/wp-dyn/content/article/2010/12/03/AR2010120303267.html?sid=ST2010120303076

Bob said...

The State Dept. didn't say "nah, go ahead and publish it all". They said that he shouldn't publish any of it and that they wouldn't tell him which were the most important parts. Which is absolutely the correct way to deal with a blackmailer. Why hand him a map to the most damaging info?

I don't think I said anything about 794(b). I agree that that particular section doesn't seem to apply in this case.

As to "Indirect communication" being too vague. Right up there with "depends what the meaning of 'is' is". Obviously they were trying to head off a "I gave it to a middleman, not the enemy" defense.

Bob said...

U.S. laws have two standards for when you can charge someone for a crime that requires "knowledge" (or when lack of knowledge is a defense).
One is the subjective test (what the defendant actually believed). The other is an objective test, what a reasonable person would have known.

Some crimes, like larceny require a subjective test. You aren't guilty of larceny unless you actually believe you are taking the property of someone else, no matter how stupid you would have to be to not know. Mistook someoneelse's Ferrari for your Hundai? Not guilty (if the jury believes you).

Other crimes, like rape, require a reasonable person test. Thought she meant "yes" when she said "no"? Guilty of rape, even if you honestly believed she meant "yes" because a reasonable person would have known that she meant "no".

The "reason to believe" makes it an objective standard. And it is a very very low threshold. I don't think "I thought he was lying" works as a defense, but I don't know of any specific cases where that was an issue.

For it to matter whether he believed they were lying, it would have to be a subjective standard, not an objective one. Otherwise anyone could get off for any crime that requires any type of intent just by saying "I didn't believe (my eyes, the guy telling me stuff, etc.)".

In any case, those are questions for a jury to decide. They can certainly bring him to trial on these facts. It would be up to his lawyer and the prosecutors to argue whether he had "reason to believe".

Don Emmerich said...

"Why hand him a map to the most damaging info?"

But there's simply no evidence that WikiLeaks wants to harm innocent people. Its goal, as its actions have shown, is to make governments more transparent and to expose government wrongdoing.

Don Emmerich said...

To repeat: WikiLeaks has proven that it wants to redact the documents in order to protect innocent people; it is currently working with various newspapers to redact the diplomatic cables and is only publishing the cables after they've been redacted.

Bob said...

Why should the U.S. government believe Wikileaks when Wikileaks says it doesn't want to harm innocent people? You still haven't come up with a single legitimate reason why wikileaks put technical data exposing vulnerabilities in our IED jammers on the web or the social security numbers of our troops. That is not consistent with "not wanting to harm innocent people". Unless you think our troops deserve to have their identities stolen.

Nor does the U.S. government have any reason to believe Wikileaks when Wikileaks says "oops, didn't mean to expose the identities of your secret allies in Afghanistan".

So again, knowing that Wikileaks has in the past posted information that endangered U.S. forces and allies, why would the U.S. give a roadmap to the most dangerous information to a convicted criminal like Assange?

Don Emmerich said...

WikiLeaks is clearly not some diabolic entity intent upon harming innocent people, as is demonstrated by some of its many leaks. From Wikipedia:

“In August 2007, The Guardian published a story about corruption by the family of the former Kenyan leader Daniel arap Moi based on information provided via WikiLeaks. In November 2007, a March 2003 copy of Standard Operating Procedures for Camp Delta detailing the protocol of the U.S. Army at the Guantanamo Bay detention camp was released. The document revealed that some prisoners were off-limits to the International Committee of the Red Cross, something that the U.S. military had in the past repeatedly denied. In February 2008, WikiLeaks released allegations of illegal activities at the Cayman Islands branch of the Swiss Bank Julius Baer…

“In September [2009], internal documents from Kaupthing Bank were leaked, from shortly before the collapse of Iceland's banking sector, which led to the 2008–2010 Icelandic financial crisis. The document shows that suspiciously large sums of money were loaned to various owners of the bank, and large debts written off.”

Its goal is to expose government and corporate secrecy and wrongdoing. If you looked at this objectively, you’d realize that you’re against WikiLeaks, not because you really think Assange is some James Bond-like villain, but because you don’t approve of many of the secrets he has exposed. For instance, you think it’s legitimate that the US didn’t admit to conducting drone strikes in Yemen last year. But there’s absolutely no reason to believe that Assange wants to see innocent people murdered. If this were his goal, then he obviously wouldn’t be redacting the documents as he has been.

WikiLeaks has clearly made mistakes in the past. I don’t deny that. I think they should be especially faulted for allowing the names of some Afghan informants to be revealed. But there’s simply no reason to believe that these mistakes were deliberate. It has since improved its methods and has done much more thorough job redacting the Iraq War Logs and the current diplomatic cables.