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Since E.D. Hirsch failed in his noble jihad to enforce Cultural Literacy, I can't assume readers are familiar with the scene in Annie Hall in which Woody Allen stops a movie line bloviator from pontificating about Marshall McLuhan by producing the actual Marshall McLuhan from behind a movie poster to tell the pontificator off. So here is a clip:

Allen concludes the scene by saying to the camera, "Boy, if life were only like this."

But the funny thing is, sometimes life is just like that, and in the past week we have been presented with a spectacular, world-historical example.

A standard bloviator talking point in the last few weeks against WikiLeaks and Julian Assange has been: the WikiLeaks release of classified U.S. diplomatic cables is nothing like the Pentagon Papers case which exposed the US government's fundamental lying to the public about the Vietnam War, and Julian Assange and alleged leaker Bradley Manning are nothing like Daniel Ellsberg, who leaked the Pentagon Papers to the New York Times. This Manichean division between "good" and "bad" leakers has been recited with great earnestness: "Four legs good, two legs baaaad!"

A striking example was noted by Sam Husseini on December 5 , citing an appearance by Illinois Senator Dick Durbin on CBS' "Face the Nation":

Bob Schieffer: Do you think [Assange has] damaged national security?

Senator Richard Durbin: I do.

Bob Schieffer: You do?

Senator Richard Durbin: I do. And I'll tell you I come from an era where I think [the] Daniel Ellsberg situation with the Pentagon papers was a clear contrast. Here was the disclosure of classified information in the midst of a war that brought out some things that were not well known, not public and might have changed I think the course of history.

But Durbin overlooked a key consideration best kept in mind by those who wish to re-write history when the history is fairly recent: Daniel Ellsberg must have eaten his vegetables, because he is still alive and breathing fire, and isn't having any of Durbin's good leaker/bad leaker dichotomy. As Husseini noted on December 5:

If you go to Daniel Ellsberg's web page or his Twitter feed it is virtually wall-to-wall an ardent defense of WikiLeaks, most recently ditching and attacking Amazon following their pulling the plug on WikiLeaks.

And now, thanks to the Colbert Report, the American people know that Daniel Ellsberg stands firmly behind Assange, Manning, and WikiLeaks:

Ellsberg: Julian Assange is not a criminal under the laws of the United States. I was the first one prosecuted for the charges that would be brought against him. I was the first person ever prosecuted for a leak in this country--although there had been a lot of leaks before me. That's because the First Amendment kept us from having an Official Secrets Act. . . . The founding of this country was based on the principle that the government should not have a say as to what we hear, what we think, and what we read...

If Bradley Manning did what he's accused of, then he's a hero if mine and I think he did a great service to this country. We're not in the mess we're in, in the world, because of too many leaks. . . . I say there should be some secrets. But I also say we invaded Iraq illegally because of a lack of a Bradley Manning at that time.


Courage to Resist has a petition in support of Bradley Manning.  

Avaaz.org has a petition in support of WikiLeaks.  

Robert Naiman is Policy Director at Just Foreign Policy.

Originally posted to Robert Naiman on Mon Dec 13, 2010 at 09:28 AM PST.

Poll

The Justice Department should not try to charge Julian Assange under the 1917 Espionage Act.

82%73 votes
17%15 votes

| 88 votes | Vote | Results

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Comment Preferences

  •  Hackers and bloggers, the next generation of (13+ / 0-)

    reporters and commentators.

    •  Please be careful in using the word hacker (1+ / 0-)
      Recommended by:
      shenderson

      Wikileaks isn't a hacking network, even if they have had association with some hacker. Wikileaks doesn't hack for information--they are a "dump" for people with information looking for a outlet to get it tot he public.

      Assange has been very explicit is stating he WAS a hacker, but is no longer one. In fact, he hasn't been a hacker for some time now, over 15 years.

      Likewise, not everyone who has gotten information to Wikileaks has been a hacker. Manning was a former hacker, yes, but as a military IT specialist, he didn't hack to get the information he leaked. He had clearance for that material.

      (-8.50, -7.64) "Not everything that steps out of line, and thus 'abnormal', must necessarily be 'inferior'." - Hans Asperger

      by croyal on Mon Dec 13, 2010 at 01:15:06 PM PST

      [ Parent ]

  •  right on (11+ / 0-)

    Accountability and transparency are key to peace and prosperity.

    Ask your Member of Congress what they're doing to put Americans back to work.

    by washunate on Mon Dec 13, 2010 at 09:35:49 AM PST

  •  Daniel Ellsberg has been on MSNBC as well. (11+ / 0-)

    He speaks the truth.  The way the government goes after people like Ellsberg and Assange is almost like a script.  

    What happened to Dick Durbin lately?

    "Never, desist till we ... extinguish this bloody traffic, of which our posterity, will scarce believe that it suffered a disgrace and dishonor to this country.

    by Regina in a Sears Kit House on Mon Dec 13, 2010 at 09:43:32 AM PST

    •  You don't get to rise high into the 'system' (2+ / 0-)

      without learning some of the basic 'don't go theres' in that system. That is to say that you accept some of the unspoken rules of that system to get where you got. And the 'overlords' of that system got to where they are because they 'got it done' in terms of the system. So the overlords are very smart in assessing the psychology of the up-and-comer as to their usefulness to the system. Generalize and you can see this is a big part of the energy of a 'bureaucracy' and how it self stratifies into the tamasic darkness.

      Tamas (originally "darkness", "obscurity") has been translated to mean "too inactive" or "inertia", negative, lethargic, dull, or slow.[10] Usually it is associated with darkness, delusion, or ignorance

      .

      Cynicism is voter suppression we do to ourselves. h/t Errol

      by kafkananda on Mon Dec 13, 2010 at 12:42:44 PM PST

      [ Parent ]

  •  Daniel Ellsberg is a hero. (1+ / 0-)
    Recommended by:
    Rich in PA

    But I don't let him tell me what's right and wrong in the world. Certainly for anything that has happened since the Vietnam War. Whatever your feelings on Assange, let's use our own heads folks.

    I'm in the I-fucking-love-this-guy wing of the Democratic Party!

    by doc2 on Mon Dec 13, 2010 at 09:44:25 AM PST

    •  ok (0+ / 0-)

      see my comment with the links.

      371/400- "this makes you extremely progressive"

      by cedar park on Mon Dec 13, 2010 at 09:51:30 AM PST

      [ Parent ]

      •  I'm not even talking about the law. (2+ / 0-)
        Recommended by:
        kafkananda, MKDAWUSS

        The question in my mind is whether what Wikileaks is doing is wrong, whether or not it is technically illegal. I disagree with many laws; court decisions and legislative votes are no guide to morality.

        I'm in the I-fucking-love-this-guy wing of the Democratic Party!

        by doc2 on Mon Dec 13, 2010 at 09:53:38 AM PST

        [ Parent ]

        •  so you don't like what they are doing. (0+ / 0-)

          ok. And?

          371/400- "this makes you extremely progressive"

          by cedar park on Mon Dec 13, 2010 at 09:55:15 AM PST

          [ Parent ]

          •  And? And what? (0+ / 0-)

            This is a blog. It's for saying what's on your mind. Which I did.

            I'm in the I-fucking-love-this-guy wing of the Democratic Party!

            by doc2 on Mon Dec 13, 2010 at 09:57:35 AM PST

            [ Parent ]

            •  And we can agree or not... (5+ / 0-)

              as it happens (i) Assange is NOT a US citizen and certainly has no moral or legal obligation to protect information that the US feels should be classified; (ii) Assange almost certainly committed NO crime WRT the US criminal code in releasing the information that has come out so far; (iii) whoever actually downloaded the information and gave it to Assange probably did commit a crime; but (iv) IMO that action was justified given the paramount duty that any US citizen has to protect the Constitution and the people of the United States.  (that last is as always a judgment call, and won't matter at all in the trial but nevertheless is my personal opinion.)

        •  hearing Thursday on "the Espionage Act (2+ / 0-)
          Recommended by:
          nicolemm, cedar park

          Meanwhile, The U.S. House Judiciary Committee plans to hold a hearing Thursday on "the Espionage Act and the legal and constitutional issues raised by WikiLeaks," according to its website.

          More details on the hearing and a witness list had not been posted as of Monday morning.

          http://edition.cnn.com/...

          Daniel Ellsberg - "It was always a bad year to get out of Vietnam."

          by allenjo on Mon Dec 13, 2010 at 10:37:23 AM PST

          [ Parent ]

      •  Whether or not Julian Assange can be prosecuted.. (1+ / 0-)
        Recommended by:
        doc2

        (...and I'm of the opinion that he can't be prosecuted for WikiLeaks, though I do hope that if the rape allegations are true he's successfully prosecuted for rape...)

        ...has no bearing on whether or not Julian Assange is right for publishing everything he's published, or whether or not Assange's apparent philosophy - that no government should be able to keep anything secret, at any time, for any reason - is valid. Nor, for that matter, does it have any bearing on whether or not Julian Assange's release of massive amounts of information is remotely comparable to Daniel Ellsberg's release of the Pentagon Papers.

        What have you done for DC statehood today? Call your Rep and Senators and demand action.

        by mistersite on Mon Dec 13, 2010 at 09:55:47 AM PST

        [ Parent ]

        •  sigh (7+ / 0-)

          Where did Assange say that he does not think that governments should not be able to keep ANYTHING secret? He set up an org that helps whistleblowers. Why do you fail to understand that basic point. They have released less than 1% of the cables and almost all that they have put up were first released by the NEWSPAPERS FIRST!

          As Assange told Time: "It is not our goal to achieve a more transparent society; it's our goal to achieve a more just society."

          371/400- "this makes you extremely progressive"

          by cedar park on Mon Dec 13, 2010 at 10:18:14 AM PST

          [ Parent ]

          •  Here's the difference I see (0+ / 0-)

            Ellsburg knew what he was doing. He had the experience, knowledge, and judgment to assess the implications of his actions.

            Assange and his friends at Wikileaks have unknown qualifications. They have unknown knowledge.  They most assuredly have no idea of the implications of some of the material they possess should it be released.  You've stated one motive that Assange has uttered. What are his other motives? What are the motives of others he has enlisted in his organization.  No one knows.  I would not be surprised if some of them were quite hostile to the U.S.  Not just to U.S. policy on any particular topic, but to the U.S. as an entity.

            That's why I don't see these two events -- the Pentagon Papers matter and Wikileaks receipt and release of this information -- as the same thing.  They're not even close in my view.

            •  I would only ask that you don't put (0+ / 0-)

              your feelings into this. You feel or believe these things. That is different from knowing.

              Have you watched Wikirebels?

              Have you seen interviews?

              Have you seen the Wikileaks mission statement?

              371/400- "this makes you extremely progressive"

              by cedar park on Mon Dec 13, 2010 at 10:56:06 AM PST

              [ Parent ]

              •  Funny stuff, cedar park (0+ / 0-)

                Your comment on this diary made just just prior to this one asking me to not put my feelings into this was this little gem:

                Someone who is smarter than me...can give you the legal stuff you need but I feel that if you take the oath to protect the constitution and you see proof that people are breaking the law, is it not your DUTY to get that info out?

                emphasis mine.

                Got it.  Your opinions are OK.  Mine must be kept out.  

                Wow.  

                And no - I haven't visited Wikileaks website and have no plans to.  I wouldn't support them with traffic.  If you can point to any authoritative evaluations of their credentials, other than those they may offer about themselves, please point me to them.

                •  ok (1+ / 0-)
                  Recommended by:
                  viscerality

                  When I said I "feel", it was in reference to how the law works when one is a whistleblower.

                  You feel that they teh hate teh America. I guess they hate Russia, China, India, England, Iceland, Sweden etc etc etc.

                  If you refuse to read about WHO they are and WHAT they are doing, then all that is left is unimformed feelings.

                  I think McConnell and Lieberman would love that from everyone.

                  371/400- "this makes you extremely progressive"

                  by cedar park on Mon Dec 13, 2010 at 11:13:27 AM PST

                  [ Parent ]

                  •  As I said, I won't visit their website (0+ / 0-)

                    I don't trust them.

                    So you can offer no authoritative assessment of their qualifications?  Motives?  How about their names and education?  No? And that doesn't bother you?

                    You can prattle on with your cute misspellings if you wish.  It doesn't elevate the conversation.

                    Look - I may be wrong.  I hope I'm wrong.  But what if I'm right?  

                    As a matter of policy, do you believe it's a good idea for people with hostile intents toward the U.S. to be put into the role of deciding what to release and what not to release out of a batch of sensitive and classified information?  

                    I don't.  

                    Think about it: unintended outcomes aside, it is very easy to construct a false narrative by selectively releasing information. Since the information is classified and sensitive to our allies and others with which the U.S. deals, the government very likely would be unable to tell the whole story to  defend itself. Thus a false narrative could be all the public hears.  

                    That is why intent matters so much.  I felt Ellsburg's intent was honorable. I believe he was qualified and knowledgeable enough to evaluate that what he was doing would do more good than harm.

                    Assange?  Well, he seems intent on making a name for himself above all. I have no idea what his real motives are; nor those in his employ.  I doubt you do either.

                    •  You don't have to go to their website (1+ / 0-)
                      Recommended by:
                      viscerality

                      you can know what they are doing. Assange get's information from the U.S. all the time about Russia, China etc so the U.S. seems to think he knows how to get the info out correctly.

                      They have released these cables AFTER the NEWSPAPERS have. They have only released less than 1% of the cables so far.

                      I really don't understand your opinion that they hate America. Sounds odd and offputting.

                      Again, if you refuse to read anything about them from say, Greenwald or Palast or Ellsberg or Hartmann or W's former people who are all telling you EXACTLY WHAT they are doing, I am not going to dump a 5 page comment on to you. I don't think you would read any of it anyway.

                      Oh well.

                      371/400- "this makes you extremely progressive"

                      by cedar park on Mon Dec 13, 2010 at 11:35:28 AM PST

                      [ Parent ]

                      •  I don't believe they "hate America" (0+ / 0-)

                        I said I don't know what their qualifications or intentions are.

                        Let's say Assange and his Wikileaks were a much of choir boys.  As honest as the sky is blue.

                        Great.  Good for them.

                        Their success spurs imitators.  Some with hostile intentions toward their target - whatever it is: UK,  USA, France, New Zealand, Brasil, Deutschland.  Whatever.

                        As a matter of policy, do you celebrate organizations with no particular qualifications and hidden motives deciding what classified information (from any source) is released to the public?

                        I find that a puzzling view.  I'm surprised any thinking person would hold it.

                        •  well........ (2+ / 0-)
                          Recommended by:
                          kafkananda, cynndara

                          As a matter of policy, do you celebrate organizations with no particular qualifications and hidden motives deciding what classified information (from any source) is released to the public?

                          You just described every government in the world. And Cheney to a T.

                          371/400- "this makes you extremely progressive"

                          by cedar park on Mon Dec 13, 2010 at 01:08:01 PM PST

                          [ Parent ]

                          •  I'm noticing the device you use (0+ / 0-)

                            When you disagree or don't want to answer a question.  You attempt to associate me with something most people would find distasteful.

                            Should I take your non-answer to the question you've placed in a blockquote to mean yes?  If so, I would argue that that is an unworkable and dangerous situation for any nation; no matter how honest and honorable they may be.

                            If your answer to the question is no, then you and I differ only in that you've elected to trust these people.  I don't.

                            If your answer to the question is maybe, then the same thing applies: you apparently have elected to trust these people.  I don't.

                          •  Let's put it the other way around. (1+ / 0-)
                            Recommended by:
                            cedar park

                            When it comes to the government keeping secrets, you, apparently, have elected to trust these people.  I don't.  Good gods, man, they've lied and bullied us into two world wars and a royal flush of smaller disasters, mostly for the purpose of keeping the profits coming for rich bastards who neither put their lives at risk in said wars, nor want to pay taxes to support them.  Why in the world SHOULD I trust them?  They have entire task forces devoted (on my tax dollar) to distorting and concealing truth in order to make it impossible to rein them in.

                          •  You're partially right (0+ / 0-)

                            I trust the U.S. government more than I trust Wikileaks.  At least the people who work in our government have undergone some degree of vetting, and elections have a way of affecting change over time.  For example, though I'm not pleased with everything the current administration is doing, I believe it is closer to the right path than the one that preceded it.

                            Don't get me wrong: I don't fully trust the government. I don't fully trust anything, I suppose, except my wife.  

                          •  Oh, man . . . (0+ / 0-)

                            you write, "At least the people who work in our government have undergone some degree of vetting" as if that made it All Good.  But who did the vetting, except either a) a willful member of the club that gleefully distorts fact and creates fiction for the purpose of maintaining illicit power over the people as well as imperialistic dominance over other nations, or b) someone who swallowed those fictions, hook, line and sinker?  Luv, my dad used to do that for a living; he was a professional counterintelligence/counterterrorist agent before it became fashionable.  He fell into Category B -- he BELIEVED.  I learned better real young.

                        •  Yes. (0+ / 0-)

                          I believe that Benjamin Franklin would have told you, that

                          1. if we are to have government of and by the people as voters, then those voters had damned well better be informed about what their servants, "the government", are doing.  You can't direct and manage the hired help if you are ignorant of their actions.
                          1. if "the government", which is the hired help working for and supposedly under the direction of these voters, feels it necessary to conceal information from them, then it is probably doing something they don't want it to, willfully and knowledgeably.
                          1. when you deliberately conceal important information from your boss, it's called disloyalty, and probably involves corruption.  When your boss is the "sovereign", which in this case is the People, then it's called TREASON.
                          1. If "the government", that is, the selected AGENTS of the People, feels the need to cover up what it is doing and keep secrets, it is either unimportant information and "the government" is misguided; or, if that information is important, it is TREASON.  Because the citizens, not "the government" (their hired help), are the legal Sovereigns of the U.S.A.

                          Yes, I celebrate anyone, regardless of their motives, who helps the American people try to keep control of their utterly out-of-control and insubordinate hired help, The Government, by telling them what it's been doing behind their backs.  Even if they are otherwise human, flawed, and even disgusting, they are doing us a valuable service.  "Classified" information should not exist.  Its very existence proves that our government is Behaving Badly.

                          •  You honestly believe that? (0+ / 0-)

                            You honestly believe that a nation such as ours -- or frankly any nation -- could effectively function if its allies knew that they could not have a frank exchange of sensitive information because it would not be held in confidence?

                            With all due respect, I find that ludicrous and naive.  

                            I'm amazed someone could actually believe that.  Truly.  

                            And this is patently false:

                            "Classified" information should not exist.  Its very existence proves that our government is Behaving Badly.

                            Not true. Not at all true. There are many reasons why information is held from public release.  Not all, or even most, mean that the government is "Behaving Badly."

                          •  Been there (0+ / 0-)

                            done that.  I grew up inside that bubble.  Learned re-education resistance techniques before I was out of grade school.  Worked at the CIA in college.  I KNOW what gets classified by this country's security wonks, and why. Technical data?  Sure, always classified ... and nothing that any expert in the field doesn't already know.  Operations?  Of course.  But 98% of all operations data is either a) obvious to a blind man in a cave or b) black ops that are kept secret because they're illegal, immoral, AND unethical, and therefore highly embarassing career-enders for the officers involved. Not to mention all the stuff that's stamped "Secret" that's no more than an Executive Summary of what the target said on public TV last night, or maybe, the internal phone extension list.  Innocent and naive, I'm not.  Cynical, jaded, and completely unsurprised at government incompetence, I am.

                          •  So (0+ / 0-)

                            Even if I buy your claim, you still haven't addressed the point: what you apparently support is not workable given human nature and the realities of international relations.

                            Thanks for confirming my position. I expected nothing less.

                          •  I'm confused (0+ / 0-)

                            I just explained that pretty much anything that's classified is already public knowledge to anyone involved, or so narsty, illegal and immoral that the reason they don't want it known is because THEY DAMNED WELL SHOULDN'T BE DOING IT, and they DAMNED WELL KNOW THEY SHOULDN'T BE DOING IT.  So what's unworkable about honesty, again, "given human nature and the realities of international relations"?  Is it that you believe governments should, as a matter of course, be indulging in conduct that is heinously reprobate?  Or that you think that the public shouldn't have the right to know (if they're interested) what everyone involved on the inside knows anyway?

                    •  also, they have released much more (0+ / 0-)

                      about companies outside the U.S. and much more info about other countries.

                      371/400- "this makes you extremely progressive"

                      by cedar park on Mon Dec 13, 2010 at 11:36:49 AM PST

                      [ Parent ]

        •  Assange has precisely the same obligation (4+ / 0-)
          Recommended by:
          nicolemm, kafkananda, cynndara, cedar park

          to preserve US secrets, as I do for Chinese ones.  If I were handed several hundred thousand diplomatic cables from the PRC, an argument could actually be made that I have a positive duty to turn them over to the US State Dept...or at any rate make them known.  And if I choose to do that by publishing them, where is my crime?

          (OK, the PRC won't be all that happy and I probably would have to be careful about that in some locations in the world, but I don't think anyone would argue that I had acted immorally or illegally for that matter.)

  •  Well the government can try....... (11+ / 0-)

    but they will fail.

    This calling for his prosecution is pathetic and based on ignorance. They just hope we are also ignorant.

    Near v. Minnesota

    Near v. Minnesota, 283 U.S. 697 (1931), was a United States Supreme Court decision that recognized the freedom of the press by roundly rejecting prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence. The Court ruled that a Minnesota law that targeted publishers of "malicious" or "scandalous" newspapers violated the First Amendment to the United States Constitution (as applied through the Fourteenth Amendment). Legal scholar and columnist Anthony Lewis called Near the Court's "first great press case."[1]

    It was later a key precedent in New York Times Co. v. United States (1971), in which the Court ruled against the Nixon administration's attempt to enjoin publication of the Pentagon Papers.

    New York Times Co. v. United States

    New York Times Co. v. United States, 403 U.S. 713 (1971), was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.

    President Richard Nixon had claimed executive authority to force the Times to suspend publication of classified information in its possession. The question before the court was whether the constitutional freedom of the press under the First Amendment was subordinate to a claimed Executive need to maintain the secrecy of information. The Supreme Court ruled that First Amendment did protect the New York Times' right to print said materials.

    I will be doing the 5th Wikileaks Livethread at 6:30pm est.

    371/400- "this makes you extremely progressive"

    by cedar park on Mon Dec 13, 2010 at 09:46:34 AM PST

  •  also: (11+ / 0-)

    at about the 10min mark, this exchange"

    When the host asks Baruch Weiss, a former U.S. Government lawyer,
    if leaking classified information is a crime in the United States, he says:

    "I'm going to say it twice because noone will believe me the first time, but the answer is usually no. No.

    There is no statute on the books in the United States that says 'Thou shalt not leak classified information.' There is no statute of that sort. Congress tried to pass one during the Clinton administration and Clinton Vetoed it and for a very good reason. And the good reason is, that in the United States there is a huge over-classification problem. There is a huge amount of material that should not be classified that is."

    371/400- "this makes you extremely progressive"

    by cedar park on Mon Dec 13, 2010 at 09:50:20 AM PST

    •  Let's hope that Congress doesn't try again to (5+ / 0-)

      pass a law criminalizing this.  In the current climate, I'd be worried that they could pass it and it wouldn't be vetoed. Thanks for all of the great information on this!

      •  it's against the constitution to do that. (1+ / 0-)
        Recommended by:
        cotterperson

        I forget the section...

        371/400- "this makes you extremely progressive"

        by cedar park on Mon Dec 13, 2010 at 09:54:15 AM PST

        [ Parent ]

      •  US Constitution Article 1, Section 9, Clause 3 (6+ / 0-)

        No Bill of Attainder or ex post facto Law shall be passed.

        371/400- "this makes you extremely progressive"

        by cedar park on Mon Dec 13, 2010 at 10:10:57 AM PST

        [ Parent ]

        •  Thanks. nt (1+ / 0-)
          Recommended by:
          cedar park
        •  Well, but you see the intent of the Founders... (3+ / 0-)
          Recommended by:
          viscerality, kafkananda, cedar park

          Blah blah blah.

          This Supreme Court is nearly to the point where they'd just explain away the un-Constitutionality of the law with some original intent claptrap.

          Unlike Elvis Costello, I used to be amused and now I'm disgusted.

          by nightsweat on Mon Dec 13, 2010 at 10:46:04 AM PST

          [ Parent ]

          •  The original intent of that section (2+ / 0-)
            Recommended by:
            kafkananda, cedar park

            is entirely, unambiguously clear: that you cannot make an act that was not a crime at the time it was committed, retroactively a crime. Fortunately, the language itself also is unambiguous. Fortunately as well, although this would be much less comforting if it stood alone against the Roberts court, the Supreme Court has over 200 years of unambiguous precedent about what constitutes an impermissible ex post facto law:

            [A] law shall not be passed concerning, and after the fact, or thing done, or action committed. I would ask, what fact; of what nature, or kind; and by whom done? That Charles 1st. king of England, was beheaded; that Oliver Cromwell was Protector of England; that Louis 16th, late King of France, was guillotined; are all facts, that have happened; but it would be nonsense to suppose, that the States were prohibited from making any law after either of these events, and with reference thereto. The prohibition, in the letter, is not to pass any law concerning, and after the fact; but the plain and obvious meaning and intention of the prohibition is this; that the Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it. The prohibition considered in this light, is an additional bulwark in favour of the personal security of the subject, to protect his person from punishment by legislative acts, having a retrospective operation.

  •  I voted disagree because I want them to try and (6+ / 0-)

    fail.  Until this is proven in court, the Assange's of the world will be hounded and face all sorts of problems from our government.  Of course, that won't change after this case, because power always wants to keep others from pulling back the curtains, but every time a court can step up and say this is against the Constitution, it keeps a little distance between the wholesale destruction of freedom in this country and the people.  Right now, with Bush's DOJ and what has been continued by Obama, my greatest worry is Assange being "disappeared" and never being able to have his day in court.

  •  there is a difference betw Ellsherg & Assange (10+ / 0-)

    Ellsberg had signed an agreement on confidentiality in order to have access to the documents comprising the Pentagon Papers.  The prosecution against was not dismissed for lack of merits, but for egregious government misconduct IIRC.

    Assange has no confidentiality agreement, and unless Holder's justice department succeeds in further twisting the bad Espionage Law into one, there is no crime for someone not bound by such an agreement in receiving or disclosing material classified by the US.

    Manning is a different story.  He is a covered person, and is subject to prosecution.

    But then, so are all the sources used by national security reporters for all the networks and major publications.

    "what the best and wisest parent wants for his child is what we should want for all the children of the community" - John Dewey

    by teacherken on Mon Dec 13, 2010 at 10:10:06 AM PST

  •  Ellsberg tries to bring Manning into this... (1+ / 0-)
    Recommended by:
    kafkananda

    ...but it's very clear that if he did what he's accused of, he's down by law. He might be a hero while Assange might be a rogue, but one is in legitimately deep trouble and the other isn't.

    "George Washington said I was beautiful"--Sarah Palin on Barbara Bush, as imagined by Mark Sumner

    by Rich in PA on Mon Dec 13, 2010 at 10:21:14 AM PST

    •  Ellsberg and Manning did basically the same thing (1+ / 0-)
      Recommended by:
      kafkananda

      so it's not really a case of "trying to bring Manning into this".

      Ellsberg was never found guilty.

      You might want to read the 1917 Espionage Act slightly more closely, since to criminalize information transfers it requires the perpetrator to act "with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation", so the law itself isn't entirely cut-and-dry (define 'reasonable knowledge', and 'injury', for example).

      Then there's the question of whether there's a constitutional challenge to the Act. It would seem, by criminalizing their sources, to abridge the freedom of the press.

  •  Naomi Wolf on the 1917 Espionage Act (10+ / 0-)

    Read it all here.

    The Espionage Act was crafted in 1917 -- because President Woodrow Wilson wanted a war and, faced with the troublesome First Amendment, wished to criminalize speech critical of his war. In the run-up to World War One, there were many ordinary citizens -- educators, journalists, publishers, civil rights leaders, union activists -- who were speaking out against US involvement in the war. The Espionage Act was used to round these citizens by the thousands for the newly minted 'crime' of their exercising their First Amendment Rights. A movie producer who showed British cruelty in a film about the Revolutionary War (since the British were our allies in World War I) got a ten-year sentence under the Espionage act in 1917, and the film was seized; poet E.E. Cummings spent three and a half months in a military detention camp under the Espionage Act for the 'crime' of saying that he did not hate Germans. Esteemed Judge Learned Hand wrote that the wording of the Espionage Act was so vague that it would threaten the American tradition of freedom itself. Many were held in prison for weeks in brutal conditions without due process; some, in Connecticut -- Lieberman's home state -- were severely beaten while they were held in prison. The arrests and beatings were widely publicized and had a profound effect, terrorizing those who would otherwise speak out.
    Presidential candidate Eugene Debs received a ten-year prison sentence in 1918 under the Espionage Act for daring to read the First Amendment in public. The roundup of ordinary citizens -- charged with the Espionage Act -- who were jailed for daring to criticize the government was so effective in deterring others from speaking up that the Act silenced dissent in this country for a decade. In the wake of this traumatic history, it was left untouched -- until those who wish the same outcome began to try to reanimate it again starting five years ago, and once again, now. Seeing the Espionage Act rise up again is, for anyone who knows a thing about it, like seeing the end of a horror movie in which the zombie that has enslaved the village just won't die.

    •  re: Naomi Wolf on the 1917 Espionage Act (6+ / 0-)

      yes, this history is important. It's good to say "1917 Espionage Act" instead of simply "Espionage Act" to remind folks of this history: the Espionage Act was about attacking domestic opponents of the Empire. The Supreme Court, to its credit, has narrowed the scope of the Act to make it conform to the First Amendment, as it did in the Pentagon Papers case. This is another reason why the notion of prosecuting Assange under the 1917 Espionage Act is so outrageous.

      •  It's important to remember the scope (2+ / 0-)
        Recommended by:
        Sandino, kafkananda

        of the SCOTUS ruling in the Pentagon Papers case.

        The court ruled that there was no basis on which it could enjoin the NYT or WaPo from publication before it happened. They didn't rule on whether the publishers could be prosecuted under the Espionage Act after publication... and no such case ever made it to court. The government secured an indictment against Ellsworth but their case fell apart completely in court, as it became entangled with Watergate. There was never a ruling on whether, in theory, the 1917 Espionage Act could be used against a leaker like Ellsworth.

        This isn't an entirely settled case, yet. I believe both Manning and Assange should be protected by the First Amendment, but there's no solid precedent guaranteeing it. I'd want a good lawyer were I in either of their positions.

        •  Yes, you are right (1+ / 0-)
          Recommended by:
          sullivanst

          the legal issues were never fully decided in the PP case, and my earlier comment elided that. However, I think the broader point is true: the SCOTUS has generally acted to limit the scope of the 1917 EA when it conflicts with the 1st amdt.

        •  Assange (1+ / 0-)
          Recommended by:
          sullivanst

          isn't a U.S. citizen.  Unless they go to the COMPLETELY illegal step (under international law) of holding a foreigner responsible for violation of U.S. laws while not even in U.S. jurisdiction, they haven't got a case.

          Of course, the U.S. has spent the last three decades demanding that its laws be recognized  universally and even in pre-emption of foreign sovereignty, so there's no guarantee they'll pay any attention to that little fact.  The tea-baggers and their backers complain about World Government under the U.N., but their only real complaint is, that they don't control it.

          •  The witchhunters will argue (1+ / 0-)
            Recommended by:
            shenderson

            that because the material has been made available in America - both over the internet and by transmitting it to American-based newspapers - there were acts over which American courts have jurisdiction.

            It's murky, which is why I'd want a good lawyer if I were Assange. He should be clear, but I don't trust the system to reach the right conclusion.

            •  Well, (0+ / 0-)

              "the System" will reach the conclusion it wants, whether it has any basis in law or not.  Witness invading a sovereign nation (Panama) to arrest its head-of-state (Manuel Noriega) on charges of doing what the CIA paid him to do.  Not that I shed any tears over Noriega, mind you, but the utter disregard of international law and the rights of a sovereign nation simply blew ANY moral standing the US could have as a defender of international propriety straight out of the water.  The US has been a "rogue nation" for thirty years; basically it proved under Reagan that as soon as it lost control of international opinion, it couldn't care less about it.

              •  Strange choice for the point at which (0+ / 0-)

                the US lost any credible claim of moral authority to police the world, when you consider the Tonkin incident or the Bay of Pigs.

                Noriega spent much of his time in charge of Nicaragua pretending not to be the head of state - and the US was, correctly, not recognizing him as such at the time of the invasion. In comparison with the Tripartite actions in Suez, Panama was certainly no worse.

                And I don't think many people have much doubt that the CIA pays people to perform illegal actions. That doesn't make the actions any less illegal, it simply highlights the extreme danger of allowing "national security" to become an excuse for "anything goes, and there's no accountability" - that's a culture that needs to change, and it still remains perhaps the biggest disappointment with Obama that he's reinforced it rather than acted to reverse it.

    •  Lieberman & Feinstein invoking the Espionage Act. (7+ / 0-)

      This week, Senators Joe Lieberman and Dianne Feinstein engaged in acts of serious aggression against their own constituents, and the American people in general. They both invoked the 1917 Espionage Act and urged its use in going after Julian Assange.

      For good measure, Lieberman extended his invocation of the Espionage Act to include a call to use it to investigate the New York Times, which published WikiLeaks' diplomatic cables. Reports yesterday suggest that U.S. Attorney General Eric Holder may seek to invoke the Espionage Act against Assange.

      These two Senators, and the rest of the Congressional and White House leadership who are coming forward in support of this appalling development, are cynically counting on Americans' ignorance of their own history -- an ignorance that is stoked and manipulated by those who wish to strip rights and freedoms from the American people.

      They are manipulatively counting on Americans to have no knowledge or memory of the dark history of the Espionage Act -- a history that should alert us all at once to the fact that this Act has only ever been used -- was designed deliberately to be used -- specifically and viciously to silence people like you and me.

      Daniel Ellsberg - "It was always a bad year to get out of Vietnam."

      by allenjo on Mon Dec 13, 2010 at 10:45:28 AM PST

      [ Parent ]

      •  Hopefully that overreach (2+ / 0-)
        Recommended by:
        Sandino, cynndara

        will ensure the courts find the correct way.

        The point at which it became clear which way SCOTUS was going to rule was when the Deputy Solicitor General said Austin gave the FEC the right to ban books if their only reasonable interpretation was advocating the election or defeat of a particular candidate.

        It's not 100% guaranteed that the courts would find Wikileaks to be "the press" (although it's clear to me that they are), but there's absolutely no doubt about the NY Times.

  •  Assange should be in the clear (2+ / 0-)
    Recommended by:
    nicolemm, Fishgrease

    Manning is probably screwed.

    I haven't seen a good defense of Manning from a legal point of view.  Is there any case to be made?

    Unlike Elvis Costello, I used to be amused and now I'm disgusted.

    by nightsweat on Mon Dec 13, 2010 at 10:43:53 AM PST

    •  Someone who is smarter than me (2+ / 0-)
      Recommended by:
      Marie, kafkananda

      can give you the legal stuff you need but I feel that if you take the oath to protect the constitution and you see proof that people are breaking the law, is it not your DUTY to get that info out?

      371/400- "this makes you extremely progressive"

      by cedar park on Mon Dec 13, 2010 at 10:53:47 AM PST

      [ Parent ]

      •  Used to be. (1+ / 0-)
        Recommended by:
        cedar park

        Officially, young officers were taught that in the Academy, circa 1940-1970 (my dad made me read all the training manuals when I was in high school, along with taking his military correspondence courses for him in things he already knew and hadn't forgotten -- I got several versions).  Of course, you understand that what you're taught "by the book" and what you learn in actual situations are often quite different.  And young officers always had to be broken of certain misconceptions they'd picked up in training, because taking regulations too literally makes you a real PIA to work with.

  •  Fix the whistleblower bill (2+ / 0-)
    Recommended by:
    cynndara, shenderson

    For the first time ever, federal employees will not be protected for blowing the whistle on a violation of law.

    Instead of reforming the broken MSPB, for the first time in history the Senate has given the Board the ability to summarily dismiss a whistleblowers case without ever having a hearing.

  •  The extent to which Ellsberg = Manning (2+ / 0-)
    Recommended by:
    kafkananda, Robert Naiman

    is highlighted by the fact that I can't actually tell which incident Durbin was talking about when he said "Here was the disclosure of classified information in the middle of a war that brought out some things that were not well known, not public and might have changed I think the course of history"

    It reads like he's talking about a fait-accompli, so I'd lean towards it being about Pentagon Papers. But the cables (a) were classified, (b) released in the middle of a war, (c) brought out some things that were not well known, not public, and (d) might end up changing the course of history (we can only hope, but it's certainly too early to say it hasn't).

    The chief differences I can see are that (a) the Pentagon Papers were more focussed on the war, whereas the Wikileaks releases include much that is not related, and (b) public opposition to the Vietnam war was much more established than current opposition to our involvement in Afghanistan has become - so far.

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