US Constitution Article 1, Section 9, Clause 3 No Bill of Attainder or ex post facto Law shall be passed.
Every night at 8pmest
Starting today, each of these diaries is dedicated to I.F. Stone and Pvt. Bradley Manning.
Wikileaks, the Espionage Act, and the Constitution is a great video from today from a hearing headed by Rep Conyers. Please WATCH IT!!
No really, stop. Click on the link and at least listen.
Thomas Blanton today at the hearing:
You are not safer in the dark. You don't hide your vulnerabilities, you expose them. Then you fix them"
A-fucking-men brother!!!!
"Welcome, everyone, to today’s hearing on the Legal and Constitutional Issues Raised by WikiLeaks. In the 1989 case of Texas v. Johnson, the Supreme Court set forth one of the fundamental principles of our democracy: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."1
That was Justice William Brennan, a man who understood the founding principles of our nation.
Today, the Committee will consider the Wikileaks matter. The case is complicated, and involves important questions of national security.
And no doubt important subjects of international relations and war and peace will be invoked. But fundamentally, Justice Brennan’s observation tells us almost everything we need to know.
As an initial matter, there is no doubt that WikiLeaks is very unpopular right now. Many feel that the WikiLeaks publication was offensive. But being unpopular is not a crime, and publishing offensive information is not either. And the repeated calls from politicians, journalists, and other so-called experts crying out for criminal prosecutions or other extreme measures make me very uncomfortable.
Indeed, when everyone in this town is joined together calling for someone’s head, that is it a pretty strong sign we need to slow down and take a closer look.
That is why it was so encouraging to hear Jack Goldsmith, former Office of Legal Counsel head under President George W. Bush caution us all last week. Mr. Goldsmith wrote:
"I find myself agreeing with those who think Assange is being unduly vilified. I certainly do not support or like his disclosure of secrets that harm U.S. national security or foreign policy interests. But as all the hand-wringing over the 1917 Espionage Act shows, it is not obvious what law he has violated."2
America was founded on the belief that speech is sacrosanct, and that the answer to bad speech is not censorship or prosecution– but more speech. And so whatever you think about this controversy, it is clear that prosecuting Wikileaks would raise the most fundamental questions about freedom of speech, about who is a journalist, and about what the public can know about the actions of its own government.
Indeed, while everyone agrees that sometimes secrecy is necessary, the real problem today is too much secrecy, not too little. In the Pentagon Papers case, Justice Potter Stewart put it "When everything is classified, nothing is classified." Rampant overclassification in the US system means that thousands of soliders, analysts, and intelligence officers need access to huge volumes of purportedly-classified material – and that necessary access in turn makes it impossible to effectively protect truly vital secrets.
One of our panelists today, Mr. Blanton, put it perfectly in a recent radio appearance. He explained: "Our problem with our security system and why a Bradley Manning can get his hands on all these cables is we got low fences around a vast prairie because the government classifies just about everything. When what we need are really high fences around a small graveyard of what's really sensitive."3
Furthermore, we are far too quick to accept government claims about risks to national security, and far too quick to forget the enormous value of some national security leaks.
As to the harm caused, by these releases, all must agree that Defense Secretary Bob Gates is a pretty reliable source. His assessment – "Now, I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on. I think – I think those descriptions are fairly significantly overwrought." That’s his word: "overwrought."
Mr. Gates continued: "Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest."
So the harm here – according to our Republican Defense Secretary – is "fairly modest".
And then on the other side of the ledger, there is no need to go all the way back to the Pentagon Papers to find examples of national security leaks that were critical to stopping government abuses and preserving a healthy democracy. They happen all the time:
In 2005, the New York Times published critical information about widespread domestic surveillance. Ultimately we learned of a governmental crisis that included threats of mass resignations at the Justice Department and outrageous efforts to coerce a sick Attorney General into approving illegal spying over the objections of his Deputy and legal counsel’s office.
To put it another way, if not for this leak, we would never have learned what a civil libertarian John Ashcroft is!
In 2004, the leak of secret Office of Legal Counsel interrogation memos led to broader revelations of the CIA’s brutal enhanced interrogation program and "black sites."
These memos had not been previously revealed to the Judiciary Committee or to many in the Congress. Some may feel this harmed national security, but to many Americans the harm was a secret program of waterboarding and other abuses, that might never have been ended but for the leak.
To close, the desire to respond to a controversy like this with new legislation is very understandable. And as many panelists will testify, the Committee should take a close look at these issues and consider whether changes in law are needed.
But let us not be hasty, and let us not legislate in a climate of fear or prejudice. For, in such an atmosphere, it is our constitutional freedoms and our cherished civil rights that are the first to be sacrificed in the false service of our national security."
The basic links
Wikileaks cables
Dec 16 cables
Unofficial Wikileaks information thread
Wikileaks Twitter
NYTimes still silent
2:10 Clint Hendler (see below) with scoop from Keller talk: Times has "basically done the stories we have planned to do" from the cables, but says 3-4 more in the works. Why? Guardian still running every day and quarter million more cables? Nothing good in them, or what?
Guardian cables page
search site for the cables
Greg Mitchell at The Nation Wikileaks blog - He stopped at 4pm today. BOOOO Mr. Michell;)
Glenn Greenwald has been all over this. From today:
Very rarely do investigative journalists merely act as passive recipients of classified information; secret government programs aren't typically reported because leaks just suddenly show up one day in the email box of a passive reporter. Journalists virtually always take affirmative steps to encourage its dissemination. They try to cajole leakers to turn over documents to verify their claims and consent to their publication. They call other sources to obtain confirmation and elaboration in the form of further leaks and documents. Jim Risen and Eric Lichtblau described how they granted anonymity to "nearly a dozen current and former official" to induce them to reveal information about Bush's NSA eavesdropping program. Dana Priest contacted numerous "U.S. and foreign officials" to reveal the details of the CIA's "black site" program. Both stories won Pulitzer Prizes and entailed numerous, active steps to cajole sources to reveal classified information for publication.
In sum, investigative journalists routinely -- really, by definition -- do exactly that which the DOJ's new theory would seek to prove WikiLeaks did. To indict someone as a criminal "conspirator" in a leak on the ground that they took steps to encourage the disclosures would be to criminalize investigative journalism every bit as much as charging Assange with "espionage" for publishing classified information.
Glenn Greenwald on Democracy Now! today:
Welcome to Democracy Now!, Glenn. We are getting the latest news from London. The reports are that Julian Assange will be released. Bail was upheld. One of the details that are being hashed out, the ankle tag—he has to wear an ankle bracelet—may not work well in the large mansion where he will be staying. He’s staying at Ellingham Hall, a 600-acre, 10-bedroom mansion owned by Captain Vaughan Smith, a former Grenadier Guards officer who runs the Frontline Club, a journalist haunt in London. So, that’s the latest news out of London. Go from the latest on Julian Assange, where all spotlight is focused on him, to someone who is not so well known, remains behind bars, Bradley Manning, Glenn Greenwald.
GLENN GREENWALD: Right. And, of course, Bradley Manning is the 22-year-old Army private who is alleged, though not at all proven or convicted, to have been a source for not only the diplomatic cables that were just released but also the trove of documents about the Iraq and Afghanistan wars, as well as the video that showed an Apache helicopter attacking unarmed civilians and killing two journalists in Baghdad, as well as other undisclosed—yet undisclosed information that WikiLeak appears to possess.
As you said, he’s been held for seven months without being convicted of any crime. And the conditions that I recently discovered he’s being held in are really quite disturbing. And this has been true for the entire seven-month duration of his detention. He is in solitary confinement, and he’s not only in solitary confinement, which means that he’s in a cell alone, but he’s there for 23 out of 24 hours every day. He is released for one hour a day only. So, 23 out of the 24 hours a day he sits alone. He is barred from even doing things like exercising inside of his cell. He’s constantly supervised and monitored, and if he does that, he’s told immediately to stop. There are very strict rules about what he’s even allowed to do inside the cell. Beyond that, he’s being denied just the most basic attributes of civilized imprisonment, such as a pillow and sheets, and has been denied that without explanation for the entire duration of his visit, as well. And there is a lot of literature and a lot of psychological studies, and even studies done by the U.S. military, that show that prolonged solitary confinement, which is something that the United States does almost more than any other country in the Western world, of the type to which Manning is subjected, can have a very long-term psychological damage, including driving people to insanity and the like. It clearly is cruel and unusual; it’s arguably a form of torture. And given that Manning has never been convicted of anything, unlike the convicts at supermaxes to whom this treatment is normally applied, it’s particularly egregious.
JUAN GONZALEZ: Well, Glenn, in January we interviewed Atul Gawande, a practicing surgeon in Boston and a staff writer at The New Yorker magazine. We asked him to talk about the effects of solitary confinement on prisoners.
DR. ATUL GAWANDE: The science of what happens to people deprived of social contact, is they have to fight for their sanity. And many lose their sanity. That reality, that we are social beings in our physiology, led me to ask the question, is solitary confinement, the way we’re practicing it now, torture? And you can’t read the cases—and I describe the cases of both hostages and people who are in prisons—and conclude that, number one, those experiences are different. They’re the same. Number two, you can’t conclude that it’s not torture.
What we have observed—and we’ve learned this from both hostages and from prisoners—is that you, first of all, you begin to lose the speed of thinking. You slow down to the point of needing sleep for hours a day and yet being tired. And then it advances to a point where you can dissociate, you begin losing touch with reality. One prisoner I spoke to, for example, after three months, you’re allowed to get a television, which he looked forward to as a chance for maybe a kind of social connection in the world. But by that point, he found the television was talking to him, asking him to kill people, and he had to stow it underneath his bunk just to be able to survive and live through this.
JUAN GONZALEZ: Well, Glenn Greenwald, you’ve written about how other governments around the world deal with these kinds—or react to these kinds of detention conditions. Could you talk about that?
GLENN GREENWALD: Sure. I mean, there are different levels of solitary confinement. I mean, there’s the full-on sensory deprivation that they do at Florence. And as I indicated in my piece, what’s being done to Bradley Manning is not quite to that level. He does get a certain amount of TV time, 15 minutes, 20 minutes a day, where they stick a TV in front of his cell, for example. They claim that he’s able to try and communicate with the detainees through the walls on either side of him, which is obviously not real social interaction. But he is alone in his cell 23 out of 24 hours a day.
And there are European courts, including the European Court of Human Rights, which enforces treaties to which E.U. states are bound, including the Convention Against Torture and just the general human rights treaties, that bar the extradition of any citizens to any country where they’re likely to be subjected to cruel and inhumane treatment. And there are currently war on terror detainees, whom the United States considers highly important detainees, who are contesting their extradition in these European courts on the ground that if they are extradited to the United States, they will be subjected to the kinds of inhumane and cruel treatment which E.U. courts ban, primarily solitary confinement. And there are case laws—cases in E.U. jurisprudence where they have refused to extradite prisoners to some countries, such as Bulgaria, on the grounds that solitary confinement is a form of torture, and therefore countries are bound not to transfer their citizens there without at least a guarantee that they won’t be subjected to those sorts of tactics. Other countries around the world, in response to pressure from Amnesty and others, such as Tunisia, have all recently renounced the practice of solitary confinement for any more than a few days at a time, except in the most extreme cases of extremely violent prisoners. So what the United States is doing is really a departure from Western norms in terms of how people are imprisoned, especially pretrial detention, where the person has been found guilty of nothing.
AMY GOODMAN: Glenn Greenwald, we’re going to come back to you after break. He’s a constitutional law attorney and political and legal blogger at Salon.com. He’s talking about Bradley Manning, who’s been charged with the release of the documents, actually getting the documents that ultimately were released by WikiLeaks. And the latest news out of London, it appears that Julian Assange will be released. His bail was upheld. And we’ll give you more on that in a minute. This is Democracy Now! Back in a minute
Oh yeah, Julian Assange released on bail
Video of Assange statement
Videos you should have seen by now
Wikirebels
@Youtube:
Part 1
Part 2
Part 3
Part 4
@ Swedish TV
Doc in full
Al Jazeera English interview
It's about 22mins long and well worth it. Again, here is the exchange that I think is VERY important at about the 10min mark:
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."
Coleen Rowley on Countdown last night Link includes transcript. Watch or read.
Previous diaries:
Wikileaks informationthread 7
Wikileaks Livethread 6
Wikileaks Livethread 5
Wikileaks Livethread 4
Wikileaks Livethread 33 1/3
Wikileaks Livethread 2 1/2
Wikileaks Livethread
Assange, Wikileaks and some facts so far Pt. 2
Assange, Wikileaks and some facts so far
GeekOSystem has a great article about Time not naming Assange as Person of the year. Bwahahahahha:
When TIME Magazine named Facebook CEO Mark Zuckerberg its 2010 Person of the Year, the reaction among many (including myself) was one of puzzlement: Yes, Facebook is a huge phenomenon and has arguably had a bigger impact on the day-to-day lives of many people than many a more ’serious’ technology or political movement, but why now? As John Hodgman bitingly put it, "Time Magazine just named its Person of the Year 2007."
...
in Stengel’s view, Assange’s actions in 2010 will not have the long-term impact of Zuckerberg’s.
...
Stengel also pointed out that "there is no Julian Assange without Bradley Manning," referring to the army private believed to be the leaker of hundreds of thousands of classified documents. (Manning has not been charged with a crime, but remains in solitary confinement far from the media’s gaze). The Time editor added that "Assange might not even be on anybody’s radar six months from now."
"I’m not thinking about the moment," Stengel said. "But when you look three, five years from now, does it make sense?
...
Stengel answered the "Facebook: why now?" question by referring to Facebook’s cracking the 500 million user mark and (sigh) The Social Network, since only Hollywood movies can make already mainstream technologies truly mainstream.
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.
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."
And boom goes the dynomite
