Raising the S.H.I.E.L.D

Posted: March 7, 2011 in Uncategorized
Raising the "Shield"
By Doug Hornig
Julian, Julian, what hast thou wrought?
If you've been following the WikiLeaks story, and are also a regular reader of this daily missive, then you may find yourself in a somewhat similar frame of mind to ours. We think anything that exposes the world's "leaders" for the corrupt, power-mad, sex-craven, warmongering mental cases that they are has done us all a great service.
Never mind where the leaks came from or what motivates the leakers. Are the documents genuine? They seem to be. Have they put anyone in physical harm's way? No, according to no less a source than Defense Secretary Gates. That's really all we need to know.
Despite Washington's admission that no actual damage has been done to "national security," you'd think from all the kneejerk WikiHoohah that a madman was planting bombs at our marble shrines, or at least that Joe McCarthy had risen from the dead in all his paranoid, alcoholic splendor.
Assange is under house arrest, faced with sexual assault charges in Sweden that may well be trumped-up. At the same time, various embarrassed persons in DC are working furiously to get him extradited here. Where, presumably, he could be put on trial for treason. Maybe even hanged. Who knows?
Government officials don't seem to have grasped that WikiLeaks is already decentralized, and that the free flow of information on the Internet won't be stopped by jailing or executing one person. But then, an understanding of modern tech is not a prerequisite for holding public office.
You may also have noticed that, in addition to the legal maneuvering, there's a very! vocifer ous, bilateral smear campaign underway in certain segments of the press.
From one side comes speculation that a plaintiff in the Swedish rape case is a CIA plant. From the other side comes a retort that the person responsible for spreading story #1 – and a WikiLeaks employee – is a well-documented Holocaust denier.
Charges and countercharges fly, and the flimsier the better. For example, one investigator noted that WikiLeaks' Swedish server also hosts Pirate Bay, the bit torrent file-sharing site. A controlling interest in Pirate Bay is owned by "a prominent Swedish Nazi and financier of that country's leading fascist political party." Ipso facto, the two must be working together.
Perhaps most peculiar of all is the tale that Julian Assange has links to an intelligence-connected mind control cult in his native Australia. It's alleged that this cult, the Santiniketan Park Association, conditions children with drugs, sensory deprivation, sleep deprivation, torture and ritual sexual abuse in order to produce subjects who bend easily to the will of the group's leader.
Assange is sometimes quoted – we don't know if correctly – as having said he's "on the run" from the cult. Oh yeah, and that platinum-colored hair? That's a dead giveaway, distinctive of children raised in the cult. Mmm-hmmm…
All of this stuff would be an amusing enough sideshow, irrelevant to the damning cables released, and destined to be filed away in the Much ado about nothing drawer. Except that the anti-Assange furor has turned Washington's demagogues loose to craft legislation that is not amusing in the slightest.
A quick bit of history on the curtailment of the freedoms of speech and press: the Espionage Act of 1917, highly controversial even at the time, was passed as the U.S. was preparing to go to war with Germany. Purpo! rtedly i n support of the war effort, the bill made it illegal to divulge "information respecting the national defence" if such information "is to be used to the injury of the United States, or to the advantage of any foreign nation." The Act also conferred upon the Postmaster General the right to refuse to mail or to impound publications that he determined to be in violation of its prohibitions.
Early enforcement was vigorous and wide-reaching. Sentences were not trivial. Poet e. e. Cummings spent over three months in a military lockup for openly speaking of mutinies in the French Army; Socialist Eugene Debs was put behind bars for five years for a speech that "obstructed recruiting"; and the government seized a film called The Spirit of '76 and jailed its producer, because the depiction of British cruelties during the American Revolution was deemed dangerous bad publicity about the country's WWI ally.
The Act got a quick check at the Supreme Court, which in 1919 upheld the conviction of a guy who sent anti-draft pamphlets to men eligible for the draft, while offering the opinion that enforcement should be limited to political expression that constitutes a "clear and present danger" to the government action at issue. That principle endured for less than a year. It was substantially diluted when SCOTUS upheld the conviction of a man who had distributed circulars in opposition to American intervention in Russia following the Russian Revolution – Justices Holmes and Brandeis dissenting, arguing that "a silly leaflet by an unknown man" could hardly be construed as a consequential threat to American foreign policy.
In 1918, the Sedition Act – actually a set of amendments to the Espionage Act – lowered the bar quite a bit. It prohibited such things as "any disloyal, profane, scurrilous, or abusive language about the form of government of the United States... or the flag of the United States, or the uniform of th! e Army o r Navy."
Big umbrella. Too big, as it turns out, because the Sedition Act was repealed in 1921. But the Espionage Act endured, and it did not sit unused. Perhaps most prominently, Nixon Administration Attorney General John Mitchell invoked the act in the attempt to prosecute Daniel Ellsberg for having leaked the Pentagon Papers to the New York Times. The government also filed a restraining order that barred the Times from publishing any further articles based upon the Pentagon Papers, an order with which the Times complied.
The latter was the key development from the perspective of WikiLeaks, because it sought to impose strict limits on freedom of the press when formerly classified documents are published. The test, according to wording upheld in a 1951 decision, was whether the release of the material would likely cause "grave and irreparable" danger to the country. The administration held that publication of the papers met that test. But the Supreme Court, 6-3, disagreed and found for the Times instead.
Justice Stewart, writing for the majority, held that in areas of national defense and international affairs, the president has an independence that is virtually unchecked by the legislative and judicial branches. In the absence of such checks, he wrote, "the only effective restraint upon executive policy and power … may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government."
All that dissenting Chief Justice Burger could muster against that argument was that when "the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government," we should take some time to study the possible consequences before allowing publication.
Fast forward n! ow to 20 11. In the wake of Julian Assange's "treasonous" behavior, bills have been introduced to further amend the Espionage Act. Specifically, Joe Lieberman (I-CT), John Ensign (R-NV) and Scott Brown (R-MA) have collectively puked up S.315. On the House side, Pete King (R-NY), Mike Rogers (R-AL), and Tom Latham (R-IA) are co-sponsors of HR.6506.
The proposed legislation does not deal with those who leak classified information. It's aimed squarely at publishers. It would throw out the 1971 Times decision and make it a federal crime to transmit information "concerning the identity of a classified source or informant of an element of the intelligence community of the United States," or "concerning the human intelligence activities of the United States or any foreign government" if such publication is "prejudicial to the safety or interest of the United States."
Violate it and you can spend up to a decade at Club Fed.
But to appreciate the real jollity of this, remember what a "shield law" is. While there is no such thing in the federal code, most states have them: statutes affording a privilege to journalists not to disclose in legal proceedings confidential information or sources of information obtained in their professional capacities.
Now be aware that Joe Lieberman's bouncing baby boy is named the Securing Human Intelligence and Enforcing Lawful Dissemination Act. SHIELD, get it? Hey, who says those numbnuts in Washington have no sense of humor?
All hilarity aside, though, this bit of legislative yucks seems fairly restricted in how it can be applied. But we've had too much experience with the bottles and genies of "national security" to believe the applications won't be subject to mission creep. Just consider if someone had, in the run-up to the Iraq invasion, published a secret cable from some high military official to Defense Secretary ! Rumsfeld , emphatically stating that the weapons of mass destruction didn't exist. Imagine what a Justice Department in an administration hell bent on war would've done to the perp. There'd be no dungeon deep enough.
And what does it mean to "transmit" in the Internet era, anyway? The definition of publication is way blurry now. We're obviously publishing this article at Casey Research. But suppose you share it with a friend. Now you've transmitted it too. And if it should be found to contain material prejudicial to the government (not that we'd ever do that), you could be on the legal hook, as well. And your friends. And your friends' friends. No real terminus to the information highway has yet been delineated.
It's a godawful law, and hopefully it won't survive its first court test. But it will be passed, you can count on that. The most vocal calls for Assange's scalp have come from the right, and Republicans can be expected to push this through a Congress they largely control, especially with defections by some of the more "conservative" Democrats like Lieberman. Obama will likely not even oppose it, and he certainly won't veto it.
After that, who can say, maybe I or another staff writer here at CR will be among those first hauled into court over our words.


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