Legal scholars have explained why the U.S. government has not violated the First Amendment, journalists have dismantled claims that Assange is a press hero, and national security experts have debunked arguments that the leaked cables are innocuous. Yet somehow WikiLeaks defenders continue to support this misguided project, resorting to arguments as dangerous to civil liberties and democratic tradition as the acts they have wrongly accused government agencies of committing.
Maladroit legal arguments swirling on email lists and percolating in the blogosphere have persistently invoked the First Amendment. However, the First Amendment is not currently a factor -- nor is the Citizens United ruling. Even those internet freedom advocates who support WikiLeaks concede as much. Were the US to try to prosecute Assange, the case would center on the First Amendment. The same would be true if Amazon had been forced to discontinue its support of WikiLeaks. However, the independent decisions of Amazon and PayPal to deny WikiLeaks use of their services do not constitute any violation of Constitutional rights.
Assange has not been denied free speech. He has not been silenced or persecuted by government actors but rather arrested on pre-existing rape allegations, an arrest obligated by the notoriety he attracted to himself. It would be unacceptable and unjust for Sweden not to pursue allegations of rape, sexual molestation and unlawful coercion against an individual whose location is publicized internationally. Far from being deprived of his rights, he is being investigated based on the possibility that he denied two women of their rights. The only breaches of law so far are those committed by Assange, who violated the spirit and likely the letter of U.S. law, and those WikiLeaks activists who have launched attacks on Amazon and PayPal.
Some supporters attempt to cast Assange as a hero bringing vital information about US involvement in the Middle East to light, while others defend his actions as not having exposed anything of particular note or value. Margaret Carlson rebuts claims that Assange belongs in the pantheon of press heroes like Bob Woodward and Daniel Ellsberg eloquently: "That justification fails for a number of reasons, including how thoughtlessly indiscriminate Assange's document dump was, how little useful light it shed on Iraq and Afghanistan beyond the awful truth we already know, and Assange's indifference to collateral damage."
The claim that because Assange's actions did not expose significant new information they did not threaten national security also fails. Some supporters are attempting to take this line of argument to skirt the Espionage Act, which states the receipt, retention, and publication of classified material is illegal when the perpetrator "had reason to believe could be used to the injury of the United States." They have attempted to redirect debate to the issue of what constitutes a threat to national security.
WikiLeaks has indisputably negatively affected US national security and foreign policy. Professor R. Nicholas Burns of Harvard told Time, "He has done great harm to our diplomacy, because it strikes at the heart of what diplomacy is: The building of trust between people and between governments." The publication of these cables represents a breach of security. Their accessibility implicitly invokes a series of actions that did threaten US national security -- accessing, stealing, and publishing classified material pertaining to defense and diplomacy.
The publication of the leaked cables also has a direct effect in jeopardizing US national security and the lives of American soldiers. For example, it has become public knowledge that American soldiers are embedded in Pakistani military units. Although this may not be new information in Pakistan or Afghanistan, radical Islamists may nonetheless attempt to use the cables to support their claim Americans are trying to interfere in and take over the Middle East to lure new recruits and incite backlash against American presence in Pakistan and Afghanistan.
The most dangerous argument, however, is that the Obama administration should not oppose WikiLeaks or examine options for prosecuting Assange because the Espionage Act is flawed. The administration is also upholding the Don't Ask Don't Tell (DADT) policy despite Obama's stated opposition to the policy, and the Department of Justice defended the Defense of Marriage Act (DOMA) that President Obama supports repealing. As Abraham Lincoln said in 1838, "although bad laws... should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed."
It would be of significantly greater concern for democracy in America if the Obama administration or the legislature were not investigating major breaches of national security and enforcing U.S. law. From time to time, administrations do selectively refuse to enforce what they consider to be unjust laws, but these are exceptional circumstances. If an administration can ignore judicial holdings and refuse to uphold the rule of law -- by refusing to enforce otherwise valid laws that it disagrees with -- then it is endorsing lawlessness and condemning the rule of law. It is the duty of government to enforce existing laws; it is dissenting citizens' responsibility to push for the reform or repeal of law through the legislature.
Follow Rebecca Buckwalter-Poza on Twitter: www.twitter.com/rpbp
Naomi Wolf: J'Accuse: Sweden, Britain, and Interpol Insult Rape Victims Worldwide
Trust? Between people who say one thing to each other and another to the public and yet another behind all of our backs? You have a very strange idea of what trust is. There's a lot of big words in this post and legalese, but not much substantive argument about just what makes WikiLeaks unethical, let alone illegal. The fact that US legislators are still scrambling to find something to charge Assange with, speaks for itself.
On the matter of the actual charges against Assange, were the Legal Profession to take rape and sexual assault so seriously as a matter of course, it would be easier to believe that Assange's incredible treatment at the hand of the law were a par of the course when police knew where rapists and offeders were. That, however, is not the reality of the situation. Nowhere in the world will you find a sexual offender kept in solitude and denied bail based on a charge of consensual intercourse that turned non-consensual. It's offensive to victims of sexual crime to even suggest that the law is being even handed in this instance.
Despite being kept in the dark until now, we are none of us stupid.
His arrest and detention is clearly political. As for the Espionage Act, Assange is a foreign national. To what lengths will the United States go abroad, to save face and preserve secrets the State Department did not have the common sense to encrypt?
Our reaction, and indeed the communiques themselves in many cases, make America look weak, petty, incompetent, and vindictive. We should thank Assange for revealing how pathetic the security is in our diplomatic corps. Instead we have government officials and pundits calling for his head.
Seems you have chosen to sing lead soprano in that choir!
Don't you think that you protest too much? In my opinion, you opt for a legalistic take of the issue that, ultimately, comes through as argumentative, at least for civilians. The opinion of one Harvard professor is noted, but surely you would soon find another one with an opposite view. I think it would be more relevant tackling it from an ethical or philosophical point of view.
"It would be of significantly greater concern for democracy in America if the Obama administration or the legislature were not investigating major breaches of national security and enforcing U.S. law. From time to time, administrations do selectively refuse to enforce what they consider to be unjust laws, but these are exceptional circumstances. If an administration can ignore judicial holdings and refuse to uphold the rule of law -- by refusing to enforce otherwise valid laws that it disagrees with -- then it is endorsing lawlessness and condemning the rule of law. It is the duty of government to enforce existing laws; it is dissenting citizens' responsibility to push for the reform or repeal of law through the legislature."
“The voluntary support of laws, formed by persons of their own choice, distinguishes peculiarity the minds capable of self-government. The contrary spirit is anarchy, which of necessity produces despotism.” Thomas Jefferson.
Mr Assange is in jail because of wikileaks, and nothing else...
Daniel Ellsberg is still alive:
http://www.ellsberg.net/
Oooops.
http://www.ellsberg.net/archive/daniel-ellsberg-on-colbert-report
How inconvenient.
"Julian Assange is not a criminal... 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... 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... we invaded Iraq illegally because of a lackof a Bradley Manning..."
http://www.ellsberg.net/archive/daniel-ellsberg-on-colbert-report
You talk about trust..well if I'm all smiles and compliments to your face and talk dirt about you behind your back, how deep is that trust really? (Isn't that more like manipulation?)
You talk about the "danger" by revealing to the world that we have lied about our involvement with Pakistan...okay, maybe we shouldn't be there? It certainly sounds to me like "Americans are trying to interfere in and take over the Middle East".
Nowhere in your diatriabe, do you express any concern over the actual content of the information being released, much of which is uncomfortable at best, and shocking for most in the world. Maybe for someone who leads a life of duplicity, wikileaks is not interesting, but I for one have a problem with being represented by a government who says one thing in public and spends my money another way in secret.
(I'm afraid you lost me though with the references to "Citizens United", "DADT", "DOMA"...uh these have nothing to do with WikiLeaks...)
Do you imply that any non-US citizen that the US declares is a danger to national security should be inmediatly extradited to the US and dealt with? Not that the US government is not doing it anyway (and bullying other countries into hushing ir up), but I think doing it is not only out of place here, but sits a very dangerous precedent.
Do you imply, for example, that foreign journals who published the papers (doing EXACTLY the same thing WikiLeaks did) should be prosecuted by the US? Can I, an independent person, be extradited to the US because I published information about the papers? Why then is not NY Times prosecuted, since it IS subject to US law?
As it happens, for Assange to get convicted the US would have to convince the international community that its recently unearthed Espionage Law, (which by the way I would fight like hell if my own government tried to invoke it since is too easy for it to be applied to insiders) can be extended to other country whenever its government feels like it. And that is the part I find dangerous, and not only for foreigners.
If we speak about my personal opinion, I sincerely think Assange and WikiLeaks are exerting the right for free press that a lot of newspapers, both Stater and foreign, are also exerting, and therefore should not be harassed, threatened and be subject to the application of "ad hoc" laws.
I will not enter in the whole sexual molestation bussiness, that's another different discussion. and, were he indeed found guilty, he should face his 750 dollar fine.
From what divine right do we believe our Hegemony over the world arises?
Even I, who support Wikileaks for the same reasons that Daniel Ellsberg does, even I shrink at the necessity and way some of the cables exposed trivia diplomatics comments. Other cables, notably on Nigeria and the economic rape imposed by an oil company should be diffused with way more noise.
The author of the article is right to talk about the rule of law, whether "good" or "bad", and the self protection of the US. Her article would be remarkable, if the government of US and Supreme Court were applying the rule of law, all the time.
The issue is this : she considers essential to apply the rule of law now, so it should be, but if it had been applied for the last 40 years by the same government, there might not be anything for Wikileaks to leak today. And that is the issue.
Secondly, your assertion that some figures in the realm of journalism have stated that Assange is not one of them fails when you take into account that these individuals do not necessarily get to be the arbiters of what journalism is - indeed, this field, like so many others, changes over time, and most of all in the present, digital age.
Most insidious, though, is your argument concerning the Espionage Act. The fact of the matter is, this would not be the implementation of an existing, but flawed law. This would be the extension of the law into an area that it has always had the potential to affect - the receipt and pasing-on of classified information, rather than simply its initial dissemination, as Pfc. Manning did - an extension that many deem to be highly corrosive to our liberties. So: if they do this, they are breaking new and dangerously illiberal ground.
As for 'not upholding the rule of law' - bullshit. And I think you know it: not prosecuting Assange for this is a choice like so many others that the judiciary makes. Or should we start prosecuting people for not carrying shotguns when crossing Boston Common, "in case of bears"? Many laws remain unenforced - and it remains to be seen if this application of the Espionage Act even qualifies as a legitimate 'law'. This is not tantamount to violation of
http://www.huffingtonpost.com/2010/12/08/paypal-admits-us-state-de_n_793708.html
Also, do you believe that newspapers and media that published these should also be open to charges?
What is your personal opinion of a case where US media is not prosecuted, yet Assange (in the context of Wikileaks) is?
What is your personal opinion of a case where US media is not prosecuted, yet Wikileaks is?”