[Reader-list] The assault on Assange is an assault on liberty

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Tuesday 14 December 2010



The assault on Assange is an assault on liberty


Wendy Kaminer


Julian Assange is not Wikileaks; in other words, whether you regard him as a
hero, villain, victim or egotistical malcontent, Wikileaks itself remains
difficult to characterise. If it can be blamed for deterring diplomacy,
derided for titillating us with diplomatic gossip, or dispensed with faint
praise (by activist and writer Todd Gitlin) as the 'Facebook of
whistleblowing', it can also be heralded for providing additional proof (if
any were needed) of the gross hypocrisies and moral cowardice of the
post-9/11 American security state.

Consider these side-by-side articles in the New York Times, describing just
a few leaked cables: In 2006 and 2007, US diplomats successfully pressured
German officials not to honour arrest warrants against CIA operatives who
kidnapped and tortured an innocent German citizen, Khaled el-Masri. Two
years later, the US was pressuring China to stop persecuting its dissidents.

This highly selective approach to human rights is as much a hallmark of the
Obama administration as the Bush administration. Another leaked cable
(described by Mother Jones) exposed the Obama administration's efforts to
stop the Spanish government from prosecuting high-ranking architects of
torture under President Bush. No accountability for torture has been a
guiding principle for each of our post-9/11 presidents. When El-Masri sued
the US for his illegal detention and torture, the government invoked a state
secrets doctrine and won dismissal of his claims. It also offered a state
secrets defence in a lawsuit filed by Maher Arar, a Canadian/Syrian citizen
who was kidnapped and tortured for 10 months before being released without
charges. The Canadian government apologised to Arar and awarded him
$10million in damages; the US government, under Bush and Obama, immunised
itself behind a screen of state secrets. So which is more villainous:
Wikileaks for releasing secret cables or the Bush and Obama administrations
for pleading 'state secrets' to avoid accountability for summarily torturing
innocent men? Or is that not a relevant question?

Has Wikileaks done more harm than the government it seeks to embarrass? It's
difficult to quantify the threat allegedly posed to American and
international security by Wikileaks, but the threats to free speech and a
free press posed by reactions to its recent data dump are quickly becoming
clear. That Julian Assange is an enemy of the state and Wikileaks an
exercise in anarchism (at best) or terrorism, not journalism, are rare
points of bi-partisan agreement in the hyper-partisan American scene (and
Assange is reportedly the subject of a federal grand jury investigation).
Democrats and Republicans alike have urged indicting Assange under the 1917
Espionage Act, which includes provisions criminalising disclosures of
classified information. Whether or not this law would or should allow for
prosecution of media outlets (other than Wikileaks) that have received and
published classified cables (but were not responsible for the original leak)
is a subject of debate. But independent senator and former Democratic
vice-presidential candidate Joe Lieberman, for one, is undeterred by
concerns about a free press: he denounced the New York Times for publishing
some of the leaked cables, accusing it of 'at least an act of bad
citizenship... whether they have committed a crime, I think that bears very
intensive inquiry by the Justice Department'.

But the New York Times and other major publications are not alone in their
potential vulnerability to Espionage Act prosecutions: an expansive
interpretation of the Act could make it a crime for you to download the
leaked cables or 'post a link to Wikileaks on your Facebook page', Louis
Klarevas observed at theatlantic.com. Of course, this doesn't mean that the
Obama administration is about to indict anyone, much less everyone, who has
downloaded and emailed copies of cables printed in the New York Times or
elsewhere; but it does mean that federal prosecutors could conceivably claim
the power to do so and use it to target people they're anxious to prosecute
for other reasons. As Harvey Silverglate warns in his latest book, Three
Felonies a Day, one great danger of a vague, expansive criminal code is that
it enables prosecutors to focus on people whom they want to prosecute rather
than focusing on crimes that merit prosecution.

So it's worth noting that the Obama administration insists that the leaked
documents remain classified, even though they're being published on the web.
In a memo that managed to be both nonsensical and ominous, the
administration warned unauthorised federal employees and contractors not to
access any of the publicly available, yet classified documents. Officials at
Boston University Law School and Columbia University's School of
International and Public Affairs passed on similar warnings to their
respective students, out of concern that accessing leaked documents might
harm their career prospects. (The dean at Columbia subsequently repudiated
the suggestion that students should avoid exercising their rights to
'discuss and debate' public information.)

You can only hope they have the nerve to do so. The technology that enabled
Wikileaks also enables the surveillance of people who follow it or download
the documents it leaks. If diplomats can no longer rely on the privacy of
their communications, neither can the rest of us.



I'm not suggesting that we should expect prosecutions of ordinary Wikileaks
users, but I would not be at all surprised if young lawyers or international
relations graduates seeking jobs in the government found themselves
blacklisted for somehow 'associating' with Wikileaks. Historically, the
treatment of alleged subversives or people found to have consorted with
'subversives', however fleetingly, is not reassuring, nor is the history of
the 1917 Espionage Act.

A century ago, it was used to prosecute Emma Goldman and Eugene Debs for
criticising the US government during wartime and opposing the draft. Goldman
was deported and Debs subjected to a 10-year prison sentence, upheld by the
Supreme Court. Goldman was arrested shortly after delivering a speech at an
anti-draft demonstration in which she attacked the power of the president
'to tell the people that they shall take their sons and husbands and
brothers and lovers and shall conscript them in order to ship them across
the seas for the conquest of militarism and the support of wealth and power
in the United States'. Debs was convicted of obstructing the draft by
announcing his opposition to the war and telling his audience, 'you need to
know that you are fit for something better than slavery and cannon fodder'.

These prosecutions and initial enactment of the Espionage Act, followed by
the Sedition Act in 1991 (which included a ban on 'disloyal, profane,
scurrilous, or abusive language' about the US government), occurred when the
Supreme Court was just beginning to consider whether and when the First
Amendment barred the government from criminalising speech. Gradually, the
court acknowledged that the Bill of Rights imposed limits on state and
federal power, but, thanks to early- and mid-twentieth-century red scares,
people were successfully prosecuted under statutes prohibiting subversive
advocacy through the 1950s. Not until 1969 did the court hold that mere
advocacy was protected speech: in Brandenburg v Ohio, the court announced a
relatively narrow definition of actionable incitement, as speech that's
intended to incite imminent acts of violence and is likely to succeed.

But this essential First Amendment freedom, slowly and painfully established
in the twentieth century, did not long survive the twenty-first. This past
year, in Holder v Humanitarian Law Project, the Supreme Court upheld a vague
and arbitrary federal statute criminalising political advocacy when the
executive branch declares, without evidence or due process, that it
constitutes material support for terrorism. The prohibited speech at issue
in Holder was advice about peaceful conflict resolution offered by a human
rights group. If the Espionage Act is invoked against Wikileaks or if
Congress amends the Act to ease and broaden its application in the digital
age, today's Supreme Court seems unlikely to protest anymore than the Court
of 1919 protested the conviction of Eugene Debs for telling men they were
not cannon fodder.

Civil liberties groups and some prominent bloggers have denounced the
campaign to shut down information and debate by government officials and the
private corporations that have stopped hosting Wikileaks. The private
sector's willingness to partner with the state has been a particularly
bitter dose of reality testing for some. 'Your free-speech rights are only
as strong as the weakest intermediary', a lawyer at the Electronic Frontier
Foundation told the New York Times. That has long been true. Offline,
authors and journalists without the support of publishers have had little if
any chance of effectively disseminating their work. But the romance of the
internet was an imagined promise of freedom from corporate as well as state
control.

Hackers are rebelling, naturally; John Perry Barlow, co-founder of the
Electronic Frontier Foundation, calls their guerrilla attacks in defence of
Wikileaks 'kind of the shot heard round the world'. Perhaps; but this
revolution seems less likely to end in a resounding defeat of the state.
Right and left, America is giving up on liberty. That is one lesson, or
reminder, offered by the Wikileaks debacle (a lesson that seems to have
resonated more in the European than the mainstream American press). I have
heard only one prominent elected official - quirky, libertarian congressman
Ron Paul - question the rush to censor Wikileaks and indict Julian Assange.

The silence of conservative politicians - putative advocates of small
government - is not surprising. Right-wing protests of big government are
essentially tax protests (unaccompanied by willingness to accept a reduction
of benefits or services the protesters enjoy). The silence of liberal
politicians is a bit more telling; it confirms that they've been effectively
co-opted by Obama's continuation of the repressive Bush/Cheney war on
terror, which liberals once assailed. Congressional liberals reared up in
revolt this month against the president's ineptly negotiated agreement with
Republicans to extend tax cuts for the super rich, but they have generally
ignored the administration's reflexively repressive reaction to Wikileaks;
so, it seems, have many of their constituents.

Liberal Democrats have dared to speak out against the tax deal partly
because a majority of the public (and probably a bigger majority of their
liberal constituents) has opposed extending upper income-tax cuts. (The
success of Republicans in forging the tax deal they sought is just one more
example of minority rule, facilitated partly by the incompetence or
cowardice of the president and the Democratic Senate majority.) But a
fearful public has strongly supported whatever measures the government
asserts are necessary to prevent terrorism - from the summary detainment and
torture of terror suspects to virtual strip searches and highly intrusive
frisking of air travellers. This may or may not be the government people
deserve, but it is one that many of them have demanded.

Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book
is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from
Amazon (UK).)