On Dec 12, 2010, at 3:02 AM, Randal L. Schwartz wrote: > This is the complication here. Clearly, somebody violated a law in > leaking the documents. Doesn't matter who. > > *everyone* in possession of said leaks after the fact is an "accessory > after the fact". Too bad: that's the way the rules work, unless stated > otherwise, but knowingly dealing in stolen material is rarely a > defensible position!
Except that's not how the rules work. This logic is somewhat dangerous. The US has no official secrets act. A private citizen is not obligated to keep classified US government material secret if it falls into their hands. The only people who can usually be targeted are the folks who have security clearance, who signed agreements and gave oaths to the effect that they wouldn't leak sensitive material, and who then turn around and leak it anyway. They have voluntarily given up their rights under the First Amendment to have classified access. If you murder and I help, I'm on the hook because murder laws apply to me. If you sign a contract, and break it, and I help you break it, it's still all on you; the fact that you agreed to something doesn't obligate me to follow that contract, even if I know about it. There's no theft here; information is not stolen, but duplicated, and the law is careful to recognize that difference, even as groups who advocate for strong copyright enforcement are equally careful to confuse it. The US does have the Espionage Act, which has been very rarely used. It explicitly applies to interference with military matters, such as the draft, during a time of war. The Pentagon Papers, and perhaps the Afghanistan leaks, would fall ambiguously under this heading; the proposition that a war powers resolution constitutes a formal declaration of war has never been tested in court. One justice noted in the decision on the Pentagon Papers that "nowhere are presidential wars authorized." The decision is an instructive read: http://supreme.justia.com/us/403/713/case.html The court did uphold the Espionage Act in United States v. Morison in 1988, but only against the original leaker, a Navy civilian analyst, and at least partly on the grounds that he'd signed an NDA: http://openjurist.org/844/f2d/1057/united-states-v-morison-cbs In Morison there was no effort to go after the publishing news organization. This all is counterintuitive; we somehow feel, after 60 years of a government culture built on secrecy, that the protections surrounding classified information must be stronger, and incumbent on every citizen. But that has not been established. The courts have noted several times that if the duty to protect classified information fell on every citizen, especially the press, it would substantially gut the First Amendment. The executive could take any damaging or sensitive information and declare it off limits to public discussion, and essentially ban political debate on uncomfortable issues. Nixon was attempting to do just that with the Pentagon Papers injunction. I think it's instructive that Assange the individual and Wikileaks are the ones targeted here, and the New York Times and the Guardian are being left out. Senators and the like have chosen the target that doesn't have a century of experience fighting in court over this very issue. Assange is easier to bluster against, at least in part because there's less danger of a case against him ever having to be fought and possibly lost; even a very generous and pro-secrecy reading of the Espionage Act would be very difficult to apply to a non-resident non-citizen of the US. However, they're not wasting their breath. What that rhetoric does do is stoke anger, and fear, and build political will to try to create an Official Secrets Act in the United States. That's something which those who believe in statism, which surely includes Senator Lieberman, would very much like. It's easier to accomplish if the run of the mill citizenry believes they already are under obligation to protect information that the government deems sensitive. I'm sure there'll be some big headlines in the coming weeks about how Assange can't be extradited to or prosecuted in the US, and the accompanying manufactured outrage will lead to calls to "fix this loophole" in the law. An official secrets act would, I hope, be overturned. But given the times, I don't think we'd afford even a half decade or so of it being in place until the Court does so. It's better to stop it at the source and make the political case for it much less clearly a "no brainer that adjusts the status quo to fit the modern world" as the above comment presents it, but instead what it is: a radical departure from a century of First Amendement jurisprudence. -CP _______________________________________________ Discuss mailing list [email protected] https://lists.lopsa.org/cgi-bin/mailman/listinfo/discuss This list provided by the League of Professional System Administrators http://lopsa.org/
