- For decades, America's freedoms have eroded, notably
- -- a president declaring unconstitutional unitary executive
powers to rule unilaterally;
- -- his successor embracing the doctrine;
- -- checks and balances and separation of powers virtually
- -- passage of the USA Patriot Act;
- -- Homeland Security Act;
- -- other repressive laws;
- -- annual renewals of coup d'etat continuity of government
(COG) authority to rule unconstitutionally, including by martial law;
- -- repressive national and homeland security presidential
directives (NSPDs & HSPDs);
- -- unconstitutional executive and other unilateral presidential
- -- the recent FCC ruling compromising Net Neutrality;
- -- the proposed Shield Act - S. 4004: Securing Human
Intelligence and Enforcing Lawful Dissemination Act.
- Called a "bill to amend section 798 of title 18,
United States Code, to provide penalties for disclosure of classified information
related to certain intelligence activities and for other purposes."
- Introduced on December 2, it was referred to the Committee
on the Judiciary, not passed, but likely to resurface in the 112th Congress.
- HR 6506 is the House version, introduced on December
8, referred to the House Committee on the Judiciary and Subcommittee on
Crime, Terrorism, and Homeland Security. It also didn't pass, but again
very likely will resurface.
- On December 2, Senator John Ensign's (R. NV) web site
headlined, "Bipartisan Ensign Legislation Goes after WikiLeaks by
Amending Espionage Act," saying:
- He and Senators Joe Lieberman (I. CT) and Scott Brown
(R. MA) introduced "legislation that will derail the very real threat
posed to human intelligence sources by WikiLeaks." The Shield Act
"would give the Administration increased flexibility to go after WikiLeaks
and its founder Julian Assange by making it illegal to publish the names
of human intelligence informants (HUMINT) to the United States and intelligence
- WikiLeaks published none. In fact, on October 17, Reuters
reported Defense Secretary Robert Gates saying:
- Reviews thus far made "ha(ve) not revealed any sensitive
intelligence sources and methods compromised by (WikiLeaks) disclosure(s)."
- Yet according to Ensign, Lieberman and Brown:
- "Julian Assange and his cronies, in their effort
to hinder our war efforts, are creating a hit list for our enemies by publishing
the names of our human intelligence sources. (This) legislation will help
hold people criminally accountable who endanger these sources of information
that are vital to protecting our national security interests. The reckless
behavior of WikiLeaks has compromised our national security and threatened
the safety of our troops overseas...."
- According to Attorney General Eric Holder:
- "To the extent there are gaps in the laws, we will
move to close those gaps. The Shield Act will help close these holes in
- Congressional Research Service Analysis
- On December 6, Congressional Research Service (CRS) legislative
attorney Jennifer Elsea headlined, "Criminal Prohibitions on the Publication
of Classified Defense Information," saying:
- Espionage Act provisions apply "to the receipt and
unauthorized dissemination of national defense information, which has been
interpreted broadly to cover closely held government materials related
to US military operations, facilities and personnel. It has been interpreted
to cover the activities of foreign nationals overseas...."
- However, "(t)he Supreme Court has stated....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."
- Also at issue is whether information gotten and published
relates to lawless government actions that create "clear and present
danger(s)" for everyone. Public interest/self-defense/criminal act
disclosure arguments are reasons enough for disseminating such information.
- CRS also called prosecuting WikiLeaks unprecedented and
challenging, both legally and politically, saying:
- "We are aware of no case in which a publisher of
information obtained through unauthorized disclosure by a government employee
has been prosecuted for publishing it." At issue are First Amendment
rights and "concerns about government censorship" of information
the public has a right to know.
- Targeting Constitutional Rights
- The Shield Act targets whistleblowers, amends the 1917
Espionage Act, criminalizes free speech, and compromises the public's right
to know how their elected officials govern. Suppressing truth is the first
step toward tyranny. America is hurtling toward it as well as third world
status and ruin.
- On December 7, the Electronic Frontier Foundation's (EFF)
Shari Steele headlined, "Join EFF in Standing up Against Internet
- "The debate about the wisdom of releasing secret
government documents has turned into a massive attack on the right of intermediaries
to publish truthful information" the public has a right to know. "Suddenly,
WikiLeaks has become the Internet's scapegoat," but what affects them
harms everyone unconstitutionally.
- Everyone everywhere, including WikiLeaks, may publish
truthful political and other information. Moreover, Internet users have
a right to access it freely without censorship or other government interference.
America's duopoly disagrees and may enact repressive legislation that criminalizes
legitimate news reporting online, in print, or over the public airwaves.
Other nations may follow in a systematic attack on fundamental freedoms.
- "Like it or not, WikiLeaks has become the emblem
for one of the most important battles for our rights that is likely to
come along in our lifetimes. We cannot sit this one out." The choice
is simple: either freedom or tyranny, the latter very much out in front.
- Writing for Lawfare.com, Benjamin Wittes, senior Brookings
Institution Governance Studies fellow, headlined, "Espionage Act Amendments,"
- The Shield Act "would dramatically expand the scope
of 18 USC 798, which is now a relatively targeted provision criminalizing
the disclosure or publication of cryptographic systems and communications
intelligence. (The) Espionage Act is so vague (and) legal(ly uncertain
(that) it tend(s) to inhibit its use."
- The Shield Act "offers the worst of both worlds.
It leaves intact the current World War I-era Espionage Act provision (with
its many problems) and expands its scope to the point that it covers a
lot more than the most reckless media excesses."
- It will criminalize good journalism as "knowingly
and willfully publishing material 'concerning the human intelligence activities
of the United States or any foreign government' (that is in) no small part
of what a good (publication) does."
- At issue most of all are fundamental constitutional rights.
Earlier Supreme Court decisions addressed them.
- Two Notable Supreme Court Decisions
- During the 1919 Red Scare, California passed a criminal
syndicalism law to restrict activities of the Industrial Workers of the
World (IWW), an activist international union called the Wobblies. The statute
prohibited advocating changes to the capitalist system of industrial ownership
or political control. Under it, Charlotte Anita Whitney, a social activist,
was charged and convicted, solely for her short-term Communist Labor Party
- In Whitney v. California (1927), the Supreme Court unanimously
upheld California's statute based on its right to protect the public from
violent political acts. However, Justices Louis Brandeis and Oliver Wendell
Holmes contended that Whitney's attorneys should have argued for a "clear
and present danger" test to distinguish between membership and dangerous
action. They reasoned that Fourteenth Amendment Due Process protection
and First Amendment speech and assembly rights superseded state regulation.
- Specifically they wrote:
- "Fear of serious injury cannot alone justify suppression
of free speech and assembly. Men feared witches and burnt women. It is
the function of free speech to free men from bondage of irrational fears....Those
who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty....only
an emergency can justify repression. Such must be the rule if authority
is to be reconciled with freedom. Such....is the command of the Constitution.
It is, therefore, always open to Americans to challenge a law abridging
free speech and assembly by showing that there was no emergency justifying
- In Brandenburg v. Ohio (1969), the Court overturned Whitney
v. California and Ohio's Criminal Syndicalism statute, ruling that government
cannot constitutionally punish abstract advocacy of force or a law violation.
It can only do so in cases of directly inciting "imminent lawless
actions." The "Brandenburg standard" thus affirmed the "clear
and present danger" test, what Congress now wants to abolish unconstitutionally.
- On January 3, Law Professor Geoffrey Stone's New York
Times op-ed headlined, "A Clear Danger to Free Speech," saying:
- "There are very good reasons why it makes sense
to give the government so little authority to punish the circulation of
unlawfully leaked information," including:
- -- "prejudic(ing) the interests of the United States
does not mean that harm outweighs the benefit(s);" for example, exposing
no Iraq WMDs;
- -- for political reasons, governments often overstate
secrecy needs; none apply except in "clear and present danger"
- -- First Amendment rights are so fundamental that suppressing
them must be a last, not first, resort, again only for "clear and
present danger" reasons.
- In fact, the William H. Rehnquist Supreme Court, in Bartnicki
v. Vopper (2001), held that anyone publishing information "from a
source who obtained it unlawfully" may not be punished "absent
a need....of the highest order....it would be quite remarkable to hold"
that such individuals are criminally liable because the government didn't
"deter conduct by a non-law-abiding third party."
- In fact, whatever's in the public interest should and
must be published. It's the only way fundamental constitutional principles
are protected, ones lawless House and Senate members want stripped.
- A Final Comment
- On January 8, a WikiLeaks statement said:
- "Today, the existence of a secret US government
grand jury espionage investigation into WikiLeaks was confirmed for the
first time as a subpoena was brought into the public domain," but
- It requires a San-Francisco-based micro-blogging site
to hand over all details of five individual accounts and private Twitter
messaging, including the computers and networks used. Assange and four
others were named. Another report said he was offered a plea bargain if
he cooperates. So far the subpoena's contents are sealed. Assange demands
they be revealed, and he promised to fight the alleged charges.
- Administration and congressional members accuse WikiLeaks
and Assange of compromising US national security and endangering the lives
of human intelligence sources. They also say nothing of importance was
- In a December 7 op-ed in The Australian, Assange said:
- "It can't be both. Which is it? It is neither. WikiLeaks
has a four-year publishing history. During that time we have changed whole
governments, but not a single person, as far as anyone is aware, has been
harmed. But the US, with Australian government connivance, has killed thousands
in the past few months alone."
- In a letter to Congress, "US Secretary of Defense
Robert Gates admitted (that) no sensitive intelligence sources or methods
had been compromised by the Afghan war logs disclosure. The Pentagon stated
there was no evidence the WikiLeaks reports had led to anyone being harmed
in Afghanistan. NATO in Kabul told CNN it couldn't find a single person
who needed protecting. The Australian Department of Defense said the same."
- No one since WikiLeaks began publishing was harmed. In
contrast, Washington's imperial wars harmed millions at home and abroad
with no accountability or acknowledgement by America's dominant media,
portraying lawless conflicts as liberating ones. As a result, "truth
emergency" conditions demand that whistleblowers and independent writers
do what corporate-paid ones don't - their job.
- Stephen Lendman lives in Chicago and can be reached at
email@example.com. Also visit his blog site at sjlendman.blogspot.com
and listen to cutting-edge discussions with distinguished guests on the
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