RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
RESOLVED: Wikileaks is a legitimate member of the fourth estate, deserving of First Amendment protections.
Before we move to the summary and final voting, I wanted to draw to your attention to this excellent Congressional Research Service report concerning the legal issues and precedents involved:
The Espionage Act on its face applies to the receipt and unauthorized dissemination of national defense information, which has been interpreted broadly to cover closely held government materials related to U.S. military operations, facilities, and personnel. It has been interpreted to cover the activities of foreign nationals overseas, at least when they take an active part in seeking out information. Although cases involving disclosures of classified information to the press have been rare, it seems clear that courts have regarded such disclosures by government employees to be conduct that enjoys no First Amendment protection, regardless of the motives of the divulger or the value the release of such information might impart to public discourse. The Supreme Court has stated, however, that the question remains open whether the publication of unlawfully obtained information by the media can be punished consistent with the First Amendment. Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected. Whether the publication of national security information can be punished likely turns on the value of the information to the public weighed against the likelihood of identifiable harm to the national security, arguably a more difficult case for prosecutors to make.
Next, note some of the most interesting points made in concurrence and dissent in what is clearly the most relevant case--New York Times Co. v. United States.
First, the opinion of Justice Douglas:
Title 18 U.S.C. § 793(e) provides that
[w]hoever having unauthorized possession of, access to, or control over any document, writing . . . or information 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 . . . [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.
The Government suggests that the word "communicates" is broad enough to encompass publication.
There are eight sections in the chapter on espionage and censorship, §§ 792-799. In three of those eight, "publish" is specifically mentioned: § 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. (Emphasis added.)
Thus, it is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act.
The other evidence that § 793 does not apply to the press is a rejected version of § 793. That version read:
During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy.
55 Cong.Rec. 1763. During the debates in the Senate, the First Amendment was specifically cited, and that provision was defeated. 55 Cong.Rec. 2167.
Judge Gurfein's holding in the Times case that this Act does not apply to this case was therefore preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1(b) that:
Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.
And the dissent of Justice Harlan:
e. In order to decide the merits of these cases properly, some or all of the following questions should have been faced:
1. Whether the Attorney General is authorized to bring these suits in the name of the United States. Compare In re Debs, 158 U.S. 564 (1895), with Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). This question involves as well the construction and validity of a singularly opaque statute -- the Espionage Act, 18 U.S.C. § 793(e).
2. Whether the First Amendment permits the federal courts to enjoin publication of stories which would present a serious threat to national security. See Near v. Minnesota, 283 U.S. 697, 716 (1931) (dictum).
3. Whether the threat to publish highly secret documents is of itself a sufficient implication of national security to justify an injunction on the theory that, regardless of the contents of the documents, harm enough results simply from the demonstration of such a breach of secrecy.
4. Whether the unauthorized disclosure of any of these particular documents would seriously impair the national security.
5. What weight should be given to the opinion of high officers in the Executive Branch of the Government with respect to questions 3 and 4.
6. Whether the newspapers are entitled to retain and use the documents notwithstanding the seemingly uncontested facts that the documents, or the originals of which they are duplicates, were purloined from the Government's possession, and that the newspapers received them with knowledge that they had been feloniously acquired. Cf. Liberty Lobby, Inc. v. Pearson, 129 U.S.App.D.C. 74, 390 F.2d 489 (1967, amended 1968).
7. Whether the threatened harm to the national security or the Government's possessory interest in the documents justifies the issuance of an injunction against publication in light of --
a. The strong First Amendment policy against prior restraints on publication;
b. The doctrine against enjoining conduct in violation of criminal statutes; and
c. The extent to which the materials at issue have apparently already been otherwise disseminated.
These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous decision are enormous. The time which has been available to us, to the lower courts, and to the parties has been wholly inadequate for giving these cases the kind of consideration they deserve.
If anyone would like to address any of the points raised here, I at least agree with Justice Harlan that we ought not be in a rush, given the difficulty of the question and potentially enormous consequences of getting this wrong. Shall we take another day to debate this? It seems to me we have not fully addressed all the relevant issues.
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Comments :
Jun '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Claire, the debate format was an inspiration and your framing of the issues and socratic questions would do credit to Profs Epstein and Yoo. But, no issue of public import is ever truly resolved. I would vote "no" on a third day
Edited on Dec 28, 2010 at 5:21amRe: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
I suspect this may be the consensus. The more I think about this one, the harder I find it to cast a vote, but I suppose we do have to wrap it up at some point.
Jun '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Mrs. Pilgrim would appreciate that
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Surely Mrs. Pilgrim is aware that we are endeavoring to resolve this issue once and for all? She would not wish us to act in haste, would she?
May '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
The trouble with Justice Harlan's dissent is the question of who gets to decide these things? Is it the government official that failed to secure the information? Is the the Commander-in-chief? Is it a newspaper editor? Is it a federal judge after the fact?
I posit that it is precisely the fortuitous and somewhat random nature of press discovery of classified documents that makes their role in holding elected officials accountable so effective. You don't want them to find and publish everything but neither do you want them to discover and publish nothing.
Trusting the executive branch to decide what we need to know does not serve constitutional democracy because its nature is to want to disclose nothing. Likewise, Congress' investigative role is too often co-opted by party politics and knee-jerk partisanship. The judiciary can only play a role if a matter is brought to its attention through a dispute.
That leaves the press, which historically has performed a messy but valuable role in making the system work: the fourth estate.
However odious the personalities involved or misguided their motives, I continue to believe that is essentially the role that Wikileaks is playing here.
Dec '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Pilgrim: I would vote "no" on a third day · Dec 28 at 5:18am
Edited on Dec 28 at 05:21 am
I vote with you and Mrs. Pilgrim.
Otherwise, this gives further comfort to our enemies that our civilization is doomed.
Fewer get hurt when the good guys get ready then fire to teach the bad guys a lesson; vastly more die when we yakety-yak yak ourselves into submission like frogs in a boiler while the barbarians turn up the heat.
Dec '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
The CinC decides when to use armed forces to protect our nation.
"We the People" of the American electorate have always been the judge of those decisions.
We are doomed if we have to rely on the NYT, or worse, we defer all decisions of defense against clear and present danger to a tenured panel of increasingly freakish bench sitters wearing robes.
Specifically, WikiLeaks has not held our government accountable, it has empowered our enemies.
Edited on Dec 28, 2010 at 8:13amMay '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Charles Gordon
The CinC decides when to use armed forces to protect our nation.
The American electorate has always been the judge of those decisions.
We are doomed if we have to rely on the NYT, or worse, we defer all decisions of defense against clear and present danger to a tenured panel of increasingly freakish bench sitters wearing robes.
Specifically, WikiLeaks has not held our government accountable, it has empowered our enemies. · Dec 28 at 7:46am
The argument is not about ceding the defense of our nation to Wikileaks any more than it is about turning over the editorial function of our major newspapers to the government.
Are you arguing that the role of the press in holding the CinC is overrated?
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Charles Gordon
Pilgrim: I would vote "no" on a third day · Dec 28 at 5:18am
Edited on Dec 28 at 05:21 am
I vote with you and Mrs. Pilgrim.
Otherwise, this gives further comfort to our enemies that our civilization is doomed.
Charles: Among the glories of our civilization is our free press, our First Amendment, our separation of powers, the rule of law, and our willingness to settle disputes by means of yakking, rather than just pulling the trigger.
Trace: There are mechanisms, such as elections, to ensure that the other three estates remain accountable to the people. The Fourth Estate has traditionally been constrained, at least, by tradition--something conservatives surely esteem as valuable. How does your side reckon with the argument that new publishing technologies take limits off the Fourth Estate in a way that may in fact dangerously unsettle what has until now been a useful and healthy balance of power? Seems to me this side needs to at least acknowledge that the technology has changed dramatically, at least calling into question the relevance of these legal precedents.
Dec '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Claire Berlinski, Ed.
Charles Gordon
Charles: Among the glories of our civilization is our free press, our First Amendment, our separation of powers, the rule of law, and our willingness to settle disputes by means of yakking, rather than just pulling the trigger.
Heard this morning a Marine who was held captive 444 days by the Islamic Republic of Iran in our own embassy in Teheran tell us that he was ordered to disarm at the moment of attack.
If he had the power to go back to that moment, he would have pulled the trigger. He would have lost his life, his future wife, their children, and grandchildren.
But, by defending our civilization with a sharpshooter’s precision at that point in time, he may have sparked enough resistance that it may be he would have prevented the forming in the mind of our enemies the conviction of our becoming a weaker and weaker horse, and would have bestowed upon the entire world, Mohammedan, Christian, Jewish, and other, a much more peaceful past 30 years under the benevolent hegemony of a truly exceptional nation.
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
If you're making the case that "shoot first, think later" is a generally good position to take, rather than an occasionally good position, I think you need to make it by reference to more than one anecdote. There are, as I'm sure you can imagine, many anecdotes to suggest the contrary wisdom.
Dec '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Trace Urdan
Are you arguing that the role of the press in holding the CinC is overrated? · Dec 28 at 8:01am
It is in the gut of the CinC whether he has the will to stand or be bullied by the free press, whether the CinC cedes our sovereignty to a bunch who have no sense of purpose other than to bite, scratch, and spit down with pretention from the noses they hold to most everyone else they condescendingly consider their inferiors with no explanation as to why they do it other than pointing to the shield of the 1st Amendment.
Thank goodness their monopoly power of propaganda spread by their inky papers is being swept into the dustbin of history by the new media.
May '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Claire Berlinski, Ed.
Trace: There are mechanisms, such as elections, to ensure that the other three estates remain accountable to the people. The Fourth Estate has traditionally been constrained, at least, by tradition--something conservatives surely esteem as valuable. How does your side reckon with the argument that new publishing technologies take limits off the Fourth Estate in a way that may in fact dangerously unsettle what has until now been a useful and healthy balance of power? Seems to me this side needs to at least acknowledge that the technology has changed dramatically, at least calling into question the relevance of these legal precedents. · Dec 28 at 8:24am
The whole concept of the Fourth Estate is that its work helps to inform those elections in a way they would not be were it not there.
As for the technology being somehow more powerful, I'm still not persuaded -- at least not by this particular example. The quantity of information shared makes it more likely to be mundane than damaging. The ease with which it was shared only matters if you can demonstrate that our enemies would not have obtained it otherwise -- tough point to prove.
Dec '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Claire Berlinski, Ed.
If you're making the case that "shoot first, think later" is a generally good position to take, rather than an occasionally good position, I think you need to make it by reference to more than one anecdote. There are, as I'm sure you can imagine, many anecdotes to suggest the contrary wisdom. · Dec 28 at 8:51am
Some are better than others in choosing between dithering and making a great decision.
It can be taught by a familiarity with our Western heritage, from the lessons of each rise, fall, and renaissance during our westward advance from Greece to Rome to Europe to America.
But those among us in each generation whom we do view mounted upon the shoulders of past giants are indeed few.
More important, what our Western heritage does give to the rest of us—who are willing to listen—is what someone said to the effect: “Do not wait for the right men; we each create an environment of opinion in which the wrong men are compelled to do the right thing.”
Oct '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
I think the wording of the resolution ended up giving an implicit advantage to the "For" camp. It seems the most substantial objection of those "Against" is that Wikileaks violated the Espionage Act. But the "For" camp has argued that granting Wikileaks 1stA protections means that Wikileaks can be prosecuted under the Espionage Act but not silenced. That seems to neutralize the "Against" side's most fundamental objection (apart from the objection that Assange as a foreign national deserves no 1stA protections).
@Charles Gordon: America has the most effective fighting force in the world in part because of the ideals that the soldiers volunteer to fight for. Perhaps Wikileaks constrains the actions of the CinC. But if silencing Wikileaks gives him more freedom of action, it might also give him less muscle to work with.
Jul '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
In considering the excerpts of one assenting and one dissenting opinion, I would remind everyone that there were nine opinions published, one for each justice. No consensus was formed on either side of the question, a prerequisite to form a strong precedent and one the court attempts to achieve whenever possible.
For that reason, reading excerpts from these opinions without assaying all nine is to risk reading only one speaker in a Platonic dialog. Each opinion dissents in some substantive way from the others.
Dec '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
Charles Gordon
"We the People" of the American electorate have always been the judge of those decisions.
On what basis can 'we the people' judge whether the CIC has done what was necessary and right? By what he says?
The founders distrusted the holding and exercise of power. The news media is as flawed an institution as the Presidency, the Congress and the Judiciary. The founders knew that each of them would tend to overreach and the only solution was to give power to the other.
These releases tell us a number of things.
1. The secrecy classification system and usage is broken. If everything is secret, nothing is.
2. The dissemination system is broken. If Assange found out, so have Chinese, Russian, Iranian and North Korean agents.
3. The misuse of security classification has been a problem for decades.
4. The military and State haven't seem to realize that the internet exists.
This release is a club to the side of the head of powerful people prone to protect their sinecure. The focus on Assange protects these people. The political anger should be towards the incompetents who implemented the system.
Dec '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
The one who gave the information to Wikileaks unlawfully should be prosecuted. But the First Amendment would be dead letter if someone has the right to do something but is prosecuted for it. That is a contradiction in terms.
Dec '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
derek
Charles Gordon
"We the People" of the American electorate have always been the judge of those decisions.
On what basis can 'we the people' judge whether the CIC has done what was necessary and right?
On election day.
Jul '10
Re: RICOCHET RESOLVES: A FEW MORE THINGS TO THINK ABOUT
derek: Hear! hear! At least on the culpability of our ridiculous government. The focus of this thread is on Assange, so I speak briefly here. I can personally vouch that the last Administration actually recognized the peril in the broadband handling of classified data and sought solutions. Other abuses that you decry have been recognized and to an extent addressed in statute, but somehow we still have human beings operating our Government rather than those angels President Adams requisitioned.
Edited on Dec 28, 2010 at 11:16am