Wikileaks: First Amendment Or Espionage?

[The T]

Disclaimer: I'm no lawyer.

The problem with charging Assange under the Espionage Act is that it really doesn't address the release of information that is voluntarily provided and disseminated over a paperless media such as the internet. Espionage focuses on agents acting on behalf of one country obtaining protected information from another country for the specific purpose of either damaging that country's credibility, standing, interests OR to use that information to its own advantage at the expense of the victim country and other countries.

Assange is simply some weenie who is publishing information for everyone to see. He's not acting on behalf of some foreign power. He is clearly acting on his own behalf.

PFC Manning, on the other hand, is guilty of handing over classified information to persons not authorized to receive such information. Is it espionage? No, it is not. It is a deliberate security compromise at best, but that's about it. Same applies to whoever the person is that leaked the State Department memos.

Where I admit to being rusty is how this applies to someone like Assange. He did not break into a military facility and steal the information. He was not an imbedded reporter who was given certain information under the condition that he protect it for a specified length of time or under certain specified conditions. Then there's the whole internet thing. Even though we've had the internet for quite some time, it's still an open frontier with very little rules and restrictions. There are laws that govern the publication of a hardback book or newspaper copy, but it seems that these laws don't necessarily apply to the internet's paperless environment.

I wouldn't shroud this under Freedom of the Press because Assange is not a journalist. He is, for lack of a better word, a webmaster. Is it protected free speech? That's where real lawyers have a good debate on their hands. Is it espionage? I don't think so. The "damage" to national security is abstract. To put it another way, if someone were to intentionally release information on an upcoming operation that directly allowed an enemy force to get into position and successfully ambush the troops in that operation, then you have the classic espionage scenario. However, that's not the case here. There's no way to prove a direct link between the nature of the information and the threat to the lives of troops affected by that leak. The best that can be done is to argue it in the abstract.

PFC Manning's goose is definitely cooked as far as deliberately compromising classified information, releasing information to unauthorized persons, illegally obtaining information, etc., etc., etc. But espionage falls in the very-hard-to-prove category. And forget about treason; that's in the extremely-hard-to-prove category.

Don't get me wrong: I think Assange and Manning ought to be shot, drawn and quartered as preliminary punishment before we get to the nasty stuff. I'm just saying that as despicable as their actions may be, they did not commit espionage.

Once again, I'm no lawyer; but this is how I understand the Espionage Act.

Regardless of how he got the information, he knowingly passed on information he knew to be classified.........espionage

The Rosenbergs were executed for passing on nuclear secrets. They were just a link in the chain but were still guilty

Well done. I brought that point up last night. Good on ya.

 

[daveman]

What deems it as classified?

Becuase a "stamp" is on it saying CLASSIFIED?

To me, a document is classified until someone without proper clearance has access to it...whether they were stolen or not. WQhat makes it classified is not what it is called, but who gets to see it.

A classified document should have better protection...if it doesnt it is subject to become unclassified.

You've never had a security clearance, have you?

I am sort of interested in how the military administers security clearances.

I have one for a private firm..and it involved going through an FBI shakeout. They went through everything.

Is it the same?

I'll answer this, then pick up the thread where I left off.

Pretty much, especially for personnel. The type of clearance being applied for determines the complexity of the investigation. For a Secret, the subject provides information about the last 7 years...employers, addresses, friends, family. For a TS, it's 10 years. For both, they run credit, law enforcement, and other national agency checks; and do some limited personal interviews. A TS involves more extensive personal interviews with family, friends, and people the subject's known. Plus, the standard for granting access are higher for TS. Stuff that wouldn't block your Secret will keep you from getting a TS.

A Secret investigation costs around $15K. A TS investigation is $75K.

Industry investigations will, in addition to the personnel, look at the company's ability to properly handle and safeguard classified. Can't just leave it in a desk drawer -- gotta have a GSA-approved safe. Plus, the contract has to be modded to show the company requires access to classified, and at what level.

Unit security monitor is one of my additional duties. I take it very seriously...which is why I'm so pissed at that little shit Manning. The little bastard did what he agreed not to do TWICE. For a TS, you have to sign a non-disclosure agreement and a non-disclosure statement. In the Air Force, you also have to have a witnessed verbal attestation of agreement not to disclose classified and understanding of the consequences. Don't know if the Army has to do the verbal or not.

But there's no way the little shit can say he wasn't aware.

 

[daveman]

I was being facetious.....Yes, the stamp makes it classified technically....
But what truly makes iut classified are the eyes that do and do not see it.

And I have a question for you.....what is to stop me from taking my sons history essay and stamping it classified?

A stamp classifying it is only as valid as the eyes that get to see it.

Do you have original classification authority? No? Then you stamp is worthless.

Not just anyone can classify information. Where I am, there are only two people with the authority. Most bases, it's just one person.

To see classified, a person has to have three things: A current investigation, access granted, and a verified need to know. If someone lacks even one of those, he is not authorized to view the information.

Assange has none of those. Manning had those, but not for all the information he accessed. He had also sighed a non-disclosure agreement, which means he agreed not to reveal the information he was shown.

They're both criminals, and should be prosecuted to the fullest extent of the law.

That sums it up nicely.

Thank you, ma'am.

 

[rightwinger]

Regardless of how he got the information, he knowingly passed on information he knew to be classified.........espionage

The Rosenbergs were executed for passing on nuclear secrets. They were just a link in the chain but were still guilty

Well, they may have been. But one of my law school projects was going to the federal archives and reviewing the trasncript of the trial. Judge Kaufman made such a mess out of the case, and the witnesses so self-serving, that it is almost impossible to say, with any certainty, what the truth was.

I don't think they should have been executed. There was a huge hysteria in those days about commies... particularly 'jew commies' and Kaufman was terrified of being tarred by that brush and Roy Cohn was just a venal character.

sorry to digress, but it's a subject that's always fascinated me.

I happen to agree with you. At best, they were a conduit for the information. They were executed because they were jewish. Those who actually had access to the information and stole it received a lesser sentence

 

[Coyote]

The possibility exists that we could attempt to prosecute Wikileaks under the Espionage Act, and at first I thought - ya, go for it - get that sucker!

But I was listening to this piece on the news this evening...and I'm not so sure that is a good thing.....

From: Prosecuting WikiLeaks: It's Not Going To Be Easy : NPR

Experts said that making a case against a government employee who promised to keep the nation's secrets is pretty easy from a legal standpoint. By contrast, Washington defense attorney Abbe Lowell said, prosecuting the website WikiLeaks is no slam-dunk.

"The biggest taboo that has been out there, sort of the dirty little secret in the Espionage Act for a long time, has been whether it would ever be used to prosecute somebody in the media, as opposed to the government employee leaking the information,” Lowell said.

The dilemma, Lowell said, is whether WikiLeaks is a member of the media that warrants special free speech protections, or more like a rogue operation dedicated to hurting the U.S.

What I worry about and what many worry about is that WikiLeaks makes it easy for the law enforcement community to apply this law for the first time, in a precedent-setting way, that can be used against other people in the media.

I find the possibility of such a precedent very alarming....

 

[California Girl]

The possibility exists that we could attempt to prosecute Wikileaks under the Espionage Act, and at first I thought - ya, go for it - get that sucker!

But I was listening to this piece on the news this evening...and I'm not so sure that is a good thing.....

From: Prosecuting WikiLeaks: It's Not Going To Be Easy : NPR

Experts said that making a case against a government employee who promised to keep the nation's secrets is pretty easy from a legal standpoint. By contrast, Washington defense attorney Abbe Lowell said, prosecuting the website WikiLeaks is no slam-dunk.

"The biggest taboo that has been out there, sort of the dirty little secret in the Espionage Act for a long time, has been whether it would ever be used to prosecute somebody in the media, as opposed to the government employee leaking the information,” Lowell said.

The dilemma, Lowell said, is whether WikiLeaks is a member of the media that warrants special free speech protections, or more like a rogue operation dedicated to hurting the U.S.

What I worry about and what many worry about is that WikiLeaks makes it easy for the law enforcement community to apply this law for the first time, in a precedent-setting way, that can be used against other people in the media.

I find the possibility of such a precedent very alarming....

So would I..... IF wikileaks could be defined as 'media' which it is not.

 

[Sallow]

You've never had a security clearance, have you?

I am sort of interested in how the military administers security clearances.

I have one for a private firm..and it involved going through an FBI shakeout. They went through everything.

Is it the same?

I'll answer this, then pick up the thread where I left off.

Pretty much, especially for personnel. The type of clearance being applied for determines the complexity of the investigation. For a Secret, the subject provides information about the last 7 years...employers, addresses, friends, family. For a TS, it's 10 years. For both, they run credit, law enforcement, and other national agency checks; and do some limited personal interviews. A TS involves more extensive personal interviews with family, friends, and people the subject's known. Plus, the standard for granting access are higher for TS. Stuff that wouldn't block your Secret will keep you from getting a TS.

A Secret investigation costs around $15K. A TS investigation is $75K.

Industry investigations will, in addition to the personnel, look at the company's ability to properly handle and safeguard classified. Can't just leave it in a desk drawer -- gotta have a GSA-approved safe. Plus, the contract has to be modded to show the company requires access to classified, and at what level.

Unit security monitor is one of my additional duties. I take it very seriously...which is why I'm so pissed at that little shit Manning. The little bastard did what he agreed not to do TWICE. For a TS, you have to sign a non-disclosure agreement and a non-disclosure statement. In the Air Force, you also have to have a witnessed verbal attestation of agreement not to disclose classified and understanding of the consequences. Don't know if the Army has to do the verbal or not.

But there's no way the little shit can say he wasn't aware.

Thanks.

Not sure what the investigation into my background cost..but it was very extensive. They came up with things I didn't even know about..like a parking ticket from several decades in the past. Every reference and family member I listed were interviewed..as well as past employers. I signed several non-disclosure agreements as well.

 

[hortysir]

The possibility exists that we could attempt to prosecute Wikileaks under the Espionage Act, and at first I thought - ya, go for it - get that sucker!

But I was listening to this piece on the news this evening...and I'm not so sure that is a good thing.....

From: Prosecuting WikiLeaks: It's Not Going To Be Easy : NPR

Experts said that making a case against a government employee who promised to keep the nation's secrets is pretty easy from a legal standpoint. By contrast, Washington defense attorney Abbe Lowell said, prosecuting the website WikiLeaks is no slam-dunk.

"The biggest taboo that has been out there, sort of the dirty little secret in the Espionage Act for a long time, has been whether it would ever be used to prosecute somebody in the media, as opposed to the government employee leaking the information,” Lowell said.

The dilemma, Lowell said, is whether WikiLeaks is a member of the media that warrants special free speech protections, or more like a rogue operation dedicated to hurting the U.S.

What I worry about and what many worry about is that WikiLeaks makes it easy for the law enforcement community to apply this law for the first time, in a precedent-setting way, that can be used against other people in the media.

I find the possibility of such a precedent very alarming....

So would I..... IF wikileaks could be defined as 'media' which it is not.

And that circles around to the previous point that since they're not citizens they're not subject to (or protected by) the 1st amendment.

 

[Coyote]

The possibility exists that we could attempt to prosecute Wikileaks under the Espionage Act, and at first I thought - ya, go for it - get that sucker!

But I was listening to this piece on the news this evening...and I'm not so sure that is a good thing.....

From: Prosecuting WikiLeaks: It's Not Going To Be Easy : NPR

Experts said that making a case against a government employee who promised to keep the nation's secrets is pretty easy from a legal standpoint. By contrast, Washington defense attorney Abbe Lowell said, prosecuting the website WikiLeaks is no slam-dunk.

"The biggest taboo that has been out there, sort of the dirty little secret in the Espionage Act for a long time, has been whether it would ever be used to prosecute somebody in the media, as opposed to the government employee leaking the information,” Lowell said.

The dilemma, Lowell said, is whether WikiLeaks is a member of the media that warrants special free speech protections, or more like a rogue operation dedicated to hurting the U.S.

What I worry about and what many worry about is that WikiLeaks makes it easy for the law enforcement community to apply this law for the first time, in a precedent-setting way, that can be used against other people in the media.

I find the possibility of such a precedent very alarming....

So would I..... IF wikileaks could be defined as 'media' which it is not.

I wonder. It is a fine line here. If tabloids and blogs are "media" - and I think they are, why wouldn't wikileaks be?

 

[Toome]

What you think is of no consequence. It is the DoJ's opinion that counts. They're talking espionage charges and, in my opinion, they are right. Just because we've never seen this type of espionage doesn't mean it isn't.

LOL! Well, nothing of what any of us thinks is of any consequence. After all, we're just a bunch of yahoos spouting our opinions over the internet.

In my humblest opinion, all this talk about charging Assange with espionage is just that: talk. The people who are talking espionage charges are only saying what folks like you or me want to hear. Makes for good publicity; gives us all the illusion that they're serious, dammit!

All of that changes once a lawyer stands in front of a judge.

Having said that, nothing prevents a prosecutor from attempting to bring espionage charges to the table. However, I believe that such a case would be extraordinarily weak. A good defense lawyer would have a field day. I credit the DOJ for being astute enough to know what plays well in court and what doesn't. Prosecuting a case that has precedent is much easier than trying to establish a new precedent based on an interpretation of what the law says. That's how lawyers work.

 

[California Girl]

The possibility exists that we could attempt to prosecute Wikileaks under the Espionage Act, and at first I thought - ya, go for it - get that sucker!

But I was listening to this piece on the news this evening...and I'm not so sure that is a good thing.....

From: Prosecuting WikiLeaks: It's Not Going To Be Easy : NPR



I find the possibility of such a precedent very alarming....

So would I..... IF wikileaks could be defined as 'media' which it is not.

I wonder. It is a fine line here. If tabloids and blogs are "media" - and I think they are, why wouldn't wikileaks be?

Tabloids are, by tradition, media. They may print crap but technically they are 'news' driven. Blogs are only protected because they are considered 'speech'. Wikileaks is neither. It creates news, not informs about news. Two entirely different things.

It will be a difficult case but as Kennedy intimated 'we do things because they are hard'.

 

[daveman]

I am sort of interested in how the military administers security clearances.

I have one for a private firm..and it involved going through an FBI shakeout. They went through everything.

Is it the same?

I'll answer this, then pick up the thread where I left off.

Pretty much, especially for personnel. The type of clearance being applied for determines the complexity of the investigation. For a Secret, the subject provides information about the last 7 years...employers, addresses, friends, family. For a TS, it's 10 years. For both, they run credit, law enforcement, and other national agency checks; and do some limited personal interviews. A TS involves more extensive personal interviews with family, friends, and people the subject's known. Plus, the standard for granting access are higher for TS. Stuff that wouldn't block your Secret will keep you from getting a TS.

A Secret investigation costs around $15K. A TS investigation is $75K.

Industry investigations will, in addition to the personnel, look at the company's ability to properly handle and safeguard classified. Can't just leave it in a desk drawer -- gotta have a GSA-approved safe. Plus, the contract has to be modded to show the company requires access to classified, and at what level.

Unit security monitor is one of my additional duties. I take it very seriously...which is why I'm so pissed at that little shit Manning. The little bastard did what he agreed not to do TWICE. For a TS, you have to sign a non-disclosure agreement and a non-disclosure statement. In the Air Force, you also have to have a witnessed verbal attestation of agreement not to disclose classified and understanding of the consequences. Don't know if the Army has to do the verbal or not.

But there's no way the little shit can say he wasn't aware.

Thanks.

Not sure what the investigation into my background cost..but it was very extensive. They came up with things I didn't even know about..like a parking ticket from several decades in the past. Every reference and family member I listed were interviewed..as well as past employers. I signed several non-disclosure agreements as well.

Yes, they really crawl up your backside. No other choice, though. There's too much at stake.

 

[Coyote]

So would I..... IF wikileaks could be defined as 'media' which it is not.

I wonder. It is a fine line here. If tabloids and blogs are "media" - and I think they are, why wouldn't wikileaks be?

Tabloids are, by tradition, media. They may print crap but technically they are 'news' driven. Blogs are only protected because they are considered 'speech'. Wikileaks is neither. It creates news, not informs about news. Two entirely different things.

It will be a difficult case but as Kennedy intimated 'we do things because they are hard'.

This is what Wikileaks posts about itself on it's webpage:

WikiLeaks is a non-profit media organization dedicated to bringing important news and information to the public. We provide an innovative, secure and anonymous way for independent sources around the world to leak information to our journalists. We publish material of ethical, political and historical significance while keeping the identity of our sources anonymous, thus providing a universal way for the revealing of suppressed and censored injustices.

and:

...One of our most important activities is to publish original source material alongside our news stories so readers and historians alike can see evidence of the truth.....​

It sounds as if it informs and disseminates news - not creates it - or, at least not any more than any other disreputable media outlet.

 

[LibocalypseNow]

It looks likes he released these leaks in coordination with certain Media Outlets & Governments. It looks like they were all involved with censoring and editing the leaked documents. So i don't see how they can charge him with espionage. It seems we have all been duped again. There was clearly cooperation in this release. I think he cut a deal with Media Outlets and Governments involved. That's probably why the British have allowed him to stay there without arresting him. He will not be charged with Espionage in my opinion. Also,if you charge him,would you also have to charge the NY Times? It gets tricky.

 

[California Girl]

It looks likes he released these leaks in coordination with certain Media Outlets & Governments. It looks like they were all involved with censoring and editing the leaked documents. So i don't see how they can charge him with espionage. It seems we have all been duped again. There was clearly cooperation in this release. I think he cut a deal with Media Outlets and Governments involved. That's probably why the British have allowed him to stay there without arresting him. He will not be charged with Espionage in my opinion. Also,if you charge him,would you also have to charge the NY Times? It gets tricky.

None of that matters. It was confidential information stolen from the US Government. It belonged to us. He knowingly disseminated stolen confidential information.

Manning will be tried at least with espionage.

Assange should be charged with espionage.

So should, and the DoJ are considering, charges of espionage against the NYT.

The first amendment does not apply to stolen government information.

 

[California Girl]

I wonder. It is a fine line here. If tabloids and blogs are "media" - and I think they are, why wouldn't wikileaks be?

Tabloids are, by tradition, media. They may print crap but technically they are 'news' driven. Blogs are only protected because they are considered 'speech'. Wikileaks is neither. It creates news, not informs about news. Two entirely different things.

It will be a difficult case but as Kennedy intimated 'we do things because they are hard'.

This is what Wikileaks posts about itself on it's webpage:

WikiLeaks is a non-profit media organization dedicated to bringing important news and information to the public. We provide an innovative, secure and anonymous way for independent sources around the world to leak information to our journalists. We publish material of ethical, political and historical significance while keeping the identity of our sources anonymous, thus providing a universal way for the revealing of suppressed and censored injustices.

and:

...One of our most important activities is to publish original source material alongside our news stories so readers and historians alike can see evidence of the truth.....​

It sounds as if it informs and disseminates news - not creates it - or, at least not any more than any other disreputable media outlet.

It doesn't matter what Wikileaks says. I could set up a website and say the exact same thing. It does not give me immunity from prosecution for espionage. They are not the 'press'.

 

[ShaklesOfBigGov]

I wonder. It is a fine line here. If tabloids and blogs are "media" - and I think they are, why wouldn't wikileaks be?

Tabloids are, by tradition, media. They may print crap but technically they are 'news' driven. Blogs are only protected because they are considered 'speech'. Wikileaks is neither. It creates news, not informs about news. Two entirely different things.

It will be a difficult case but as Kennedy intimated 'we do things because they are hard'.

This is what Wikileaks posts about itself on it's webpage:

WikiLeaks is a non-profit media organization dedicated to bringing important news and information to the public. We provide an innovative, secure and anonymous way for independent sources around the world to leak information to our journalists. We publish material of ethical, political and historical significance while keeping the identity of our sources anonymous, thus providing a universal way for the revealing of suppressed and censored injustices.

and:

...One of our most important activities is to publish original source material alongside our news stories so readers and historians alike can see evidence of the truth.....​

It sounds as if it informs and disseminates news - not creates it - or, at least not any more than any other disreputable media outlet.

With the release of classified information, wrap it up with some decorative gift wrap under the name "Wikileaks", and that's someone how supposed to make the manner in which the information was retrieved acceptable? I often wondered if this subject would be so much of a debate, had it taken place during the cold war when Russia was still viewed as a liable threat? If this was a U.S. soldier or government agent who had given a large amount of secret information to a Russian Operative, information that came into the hands of a Russian Journalist before Russian Intelligence attained it, would this somehow change the fact that this is espionage? Are you suggesting had these Americans who stole top secret information during the cold war, had gone to the Russian or Chinese media instead, the United States government might overlook the seriousness of their crimes? To think all these people brought up on spy charges, had they only chosen the media, may have been able to avoid life in prison or even death. Do you see how ridiculous that sounds? What makes this case of disclosing secret information any different? Perhaps it's the lack of RESPECT when serving the military, and the apparent lack of importance placed on handling secret information, we are seeing a lot of lately?
Any retrieval of classified information; no matter what form or by what means, or to whom it is given or how it's released, doesn't "justify" or "nullify" the original act of how it was obtained. This is still a case of espionage for Assange who published it KNOWING the information was classified, and Manning for espionage and/or possibly TREASON for stealing the information with the intent to see it published. The question is, how serious does THIS administration view the handling and maintaining of secret information? We shall soon see, by observing how much of a concern or priority is placed upon stopping the leaks and detaining those responsible.

 

[AmericanFirst]

He isn't an American Citizen, therefore he doesn't have the protections of our constitution; free speech.

 

[Misty]

Or is he protected by Free Speech/Free Press?

He isn't an American citizen, he isn't subject to US law. Case closed.

Neither are the terrorists being tried on new York.

If someone commits a crime against America, according to Obama, they can be tried here. Hand him over.

 

[daveman]

He isn't an American Citizen, therefore he doesn't have the protections of our constitution; free speech.

Manning is an American citizen, and the First Amendment doesn't cover him.