Prosecuting WikiLeaks, Assange, and Free Speech v. Eric Holder and a New Sedition Act

Prosecuting WikiLeaks, Assange, and Free Speech v. Eric Holder and a New Sedition Act
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Bill Keller is wrong. He's wrong about Julian Assange, he's wrong about Wikileaks, and most importantly, he's wrong about journalism today and the role it must play in sustaining the last shreds of our failing democracy.

Now, the reality of challenging Executive Editor Bill Keller and the New York Times does not escape me, a mere blogger in their eyes, as opposed to a mainstream 'journalist.' My byline does not come with an automatic pedigree of governmental approval; rather I may someday find myself on the receiving end of a DOJ threat, as I dare to use my constitutional rights.

I also realize that this is the same paper that heroicly published the leaked Pentagon Papers in 1971 after a protracted court battle. In fact, in 1971 the Times declared in an editorial that the publication of the Pentagon Papers demonstrated that: "its more profound significance lies in the implicit but inescapable conclusion that the American people have a presumptive right to be informed of the political decisions of their Government."

Consequently I feel equal amounts of anger and contempt towards Keller's self-chosen role of 'government minder' over that of journalist/editor sworn to be the fourth estate in our dying democracy. Since the release of Wikileaks documents last month, the New York Times via the stewardship of Bill Keller has launched a carefully crafted crusade for the Obama administration specifically designed to justify government instigated censorship. Marching in sinque with administration cheerleaders for the 'war on terror,' Keller has openly stated that he was "uncomfortable" that editors "can decide to release information that the government wants to keep secret."

Keller not only justified government censorship of material at the Times, but urged other mainstream media outlets to follow suit. In a November 29 posting, Keller wrote about informing other 'news' organizations of "both the State Department's concerns about specific disclosures and our own plans to edit out sensitive material. The other news organizations supported these redactions."

Keller further stated his agreement with the Obama administration on the very nature of a free press staring down government control. Keller clearly stated that "We agree wholeheartedly that transparency is not an absolute good. Freedom of the press includes freedom not to publish, and that is a freedom we exercise with some regularity."

Somehow this is a sentiment I would more closely associate with the government propagandists in Saudi or China and not the New York Times.

US Attorney General Creates the 'Or Else' Litmus Test

The 'or else' threat moment would arrive in the form of Attorney General Eric Holder desperately searching for any excuse to indict and prosecute Assange on 'espionage' charges stemming from the federal Espionage Act of 1917. Otherwise, Holder will probably seek 'conspiracy' charges against Assange, as such charges are comfortably vague and complement other vague unconstitutional charges all crafted in a continual assault on what's left of our Bill of Rights. Not since the Nixon years has a president so viciously used his DOJ to destroy a vigorous press.

Possible Secret Grand Jury Meeting in Virginia on Assange

According to a piece by Robert Parry which ran in; one of Assange's lawyers was advised by Swedish authorities that a secret grand jury meeting is in the works in Northern Virginia. Meanwhile, the Times merely stated that ..."Justice Department officials have declined to discuss any grand jury activity." Holder is looking for any excuse to link Assange and Wikileaks to a conspiratorial role in the dumping of 'classified' documents.

If Attorney General Holder succeeds in linking Assange and WikiLeaks to Bradley Manning in a catch-all conspiracy charge, then no one is safe.

Holder's strategy linking Assange to Manning via a 'conspiracy' charge would potentially make the entire practice of investigative journalism a federal crime, possible a capital crime, loosely linked to treason charges.

As Robert Parry points out, investigative journalists rarely have the magic information served on a secret silver platter; rather they investigate. This entails asking potentially damaging questions, digging through the documents, and yes, reading documents which are not always meant for public eyes. This is the difference between true investigative journalism and government propaganda.

Though I understand the need for some reasonable secrecy regarding our defenses; I would rather live in a free society understanding the risks associated with that set of freedoms, than a closed dictatorship where no one dare question the government.

In short; the real question revolves around the very nature of our rights not the government's constant claim of security against a political 'boogie man.'

Are our rights permanent and inalienable as stated by greats such as Jefferson, Washington and Franklin, or are they subject to the political needs of the growing corporate/militaristic aristocracy?

Vice-President Biden inadvertently confirms the formation of a grand jury...

On 12/19, Vice-President Biden stated that he couldn't speak about the grand jury investigation, which reinforces the notion that such a grand jury has been formed and kept from the public. Biden further demonstrated his role as supportive propagandist, when on Meet the Press he explained the difference between investigative journalism and the non-specific charge of conspiracy claiming that "if he (Assange) conspired to get these classified documents with a member of the U.S. military, that's fundamentally different than if somebody drops on your lap here... "Here is classified material." What the Vice-President conveniently fails to understand is the very nature of investigative journalism. Rarely are such materials needed to prove government wrong doing "dropped on your lap."

Holder and the Obama Administration Let MSM off the hook, legally speaking

It is curious how the Obama administration is only pursuing charges against Assange and WikiLeaks, but not mainstream media outlets who ran WikiLeaks revelations (albeit redacted versions), such as the New York Times, the Guardian in Britain, Der Spiegel in Germany, El Pais in Spain and Le Monde in France. After all, these outlets published the alleged classified reports. Could it be that (like the ham-handed example given by Vice-President Biden on Meet the Press), only the classified information which is mysteriously "dropped in your lap" like a present from Santa could be considered allowable?

Is the Vice-President suggesting that government approved, heavily redacted and censored material is the only political currency needed for an indictment free journalistic career?

Is the Obama administration seeking to destroy the very essence of active investigative journalism?

Perhaps by singling out Assange as some faux journalistic renegade, mainstream outlets such as the Times, Newsweek and CNN will be comfortable joining the political prosecution parade without realizing they might be next. I suspect Bill Keller and others are in for a rude awakening.

Recent History of Executive Abuse of Power and Arbitrary Political Assignment of 'Terrorist': How the Courts Failed All of Us

In this 'brave new world' of journalism dictated by government fiat, asking questions could be interpreted by either the Secretary of State or the US Attorney General as ....'providing comfort and/or support' to a 'terrorist' organization or individual. The case of criminal defense attorney Lynne Stewart comes to mind. Stewart has been incarcerated...for doing her job as a criminal defense attorney. This insane action is brought to us courtesy of the 'material support' statute, 18 U.S.C. &2339B, ..."which makes it a crime (punishable by up to 10 years in prison) to provide 'material support' to any foreign organization the Secretary of State has designated as a terrorist group."

Forget the fact that the Secretary of State is unelected, and only accountable to the President; or that this grants the President near dictatorial powers when considering criminality based on politics; this action denies due process to any of us thought to be politically deviant based on the whims of unbridled and unconstitutional executive power.

How the Courts Attack Procedure and Not Questionable Constitutionality...

In 1998 federal judge Audrey Collins granted a preliminary injunction against this statute, declaring challenged provisions to be unconstitutional based on the vagueness of the statute's definition of 'material support,' while rejecting charges of 1st amendment violations by the statute's very imposition of 'guilt-by-association.'

Consequently, Judge Collins did not defend the 1st amendment, but took the lawyerly yet cowardly way out, by picking at procedural issues and operational definitions. She did not defend the 1st amendment from increasingly abusive executive overreach. In short, the people and the Constitution lost--and the idea of a dictatorial executive won. Keep in mind, this decision was granted in 1998, under Democratic President Bill Clinton and a Republican controlled Congress. This was before 9/11, and yet--there was no other outrage over this obscene power grab. Whether you believe Lynne Stewart to be a terrorist collaborator or not is irrelevant; the issue is executive overreach, political prosecutions and government censorship via judicial fiat.

Stewart was eventually convicted on the overly vague yet politically convenient charges of 'obstruction of justice' and 'conspiracy to provide material support.' Again, the danger in vague legal constructs such as obstruction and conspiracy to provide material support lies in the ease politically motivated prosecutors, judges and presidents can manipulate the justice system to serve arbitrary power structures at the expense of us all. While this may be the 'letter of the law'; it doesn't begin to resemble justice of any stripe.

The judicial cowardice of Judge Collins allows for further legal wranglings over procedure while ignoring the 'white elephant in the room,' namely executive overreach towards increasingly dictatorial powers never intended for the president. By failing to address this core issue; political prosecutions will increase along with press censorship.

Chilling Effects of Executive Overreach....

The effect is chilling; either the press will self-censor as Bill Keller has done, or federal indictments criminalizing journalism will fly faster than Glenn Beck wails crocodile tears. If searching for classified material will render a federal indictment, then there will be many more Julian Assange's. Many political abuses and corporate crimes have only been uncovered through whistle-blowers and aggressive journalists who obtain access to 'classified' materials, among which includes the Pentagon Papers, the Iran-Contra scandal and now the latest incarnation, WikiLeaks.

Multiple Abuses Exposed by WikiLeaks

Thanks to WikiLeaks, multiple abuses being perpetrated in our names by our government have been exposed. Since the latest document 'dump' we have learned about corporate crimes such as another BP blowout similar to Deepwater Horizon on a gas platform in Azerbaijan. Mainstream media was silent on this disaster, yet WikiLeaks had the information. According to the leaked cables, the first Azerbaijan gas blowout occurred in September of 2008. The leaked cable also reported that ...

"Due to the blowout of a gas-injection well there was 'a lot of mud' on the platform, which BP would analyze to help find the cause of the blowout and gas leak." A subsequent January 2009 cable postulated that BP thought the cause of the blowout was a bad cement job. BP's former CEO Tony Hayward would blame a bad cement job for the Deepwater Horizon disaster, with the contractor for that job being none other than Halliburton. It is not difficult to conclude that government attacks on Wikileaks and active journalists coincide with corporate rage over exposed abuses.

Additional examples of Wikileaks exposing political corruption are as follows:

1.) A detailed report by the ICRC (International Committee of the Red Cross) in 2005 revealed that security forces in India routinely used torture including electrocution, physical beatings and sexual interference. The ICRC stated that India 'condones torture' and that civilians ..."connected to or believed to have information about the insurgency" were ..."routinely killed." These people were not known Islamic insurgents or Pakistani backed terrorists as previously stated in most mainstream media outlets. (source: ;

2.) Another set of Wikileaks cables revealed reports that the US military routinely ignored torture and related abuses committed by Iraqi 'allies' against those suspected of being 'insurgents.' The leaked information also contains reports of horrendous abuse continuing after Obama became president vowing to 'clean up' abusive military conduct. The archive of cables cited that lashings, beatings, burnings were routinely used by Iraqi allies. One cable stated that one detainees fingers were cut off and the same detainee was then burned with acid. American forces suspected Iraqi Army officers as responsible. (source:

3.) WikiLeaks has now revealed that information will surface regarding alleged criminality among US banks, specifically singling out Bank of America. It is not unreasonable to suspect an 'outing' of possible government sources acting as willing accomplices.

These are only a few of many examples where WikiLeaks served as the ultimate whistle-blower. It could be said that WikiLeaks is whistle-blowing on steroids.

Political Prosecutions Designed to Silence Dissent and Kill the Dissenters...

So, now we have some serious questions to consider, chief among which is the proper role for the US Attorney General. Is the role of Attorney General to be a corporate 'consigliere' defending the mob bosses in Wall Street, and the political whoring collaborators in Congress and the Oval Office; or is the Attorney General assigned to be the prosecutorial guardian of the Constitution and Bill of Rights? This question has drawn some unusual allies from both the right and the left in the form of Representative John Conyers (D) and former Representative Bob Barr (R).

Representative John Conyers is the present chair of the House Judiciary Committee until January. He is also a founding member of the Congressional Black Caucus, and a vetted and respected civil rights champion. The election of Barack Obama as president was a historic achievement and the past work of civil rights giants such as Conyers help make such an election possible. Sadly, it is this same president who has benefitted from a more open reading of our civil rights who has pursued criminalizing those same rights. If the Obama administration pursues charges against Assange and Wikileaks; they will surely use the Espionage Act of 1917 or set the stage for a new Sedition Act. Either way, this administration will have criminalized free speech and free press in the name of questionable security. Conyers himself has argued against this railroading of our free speech rights:

..."America was founded on the belief that speech is sancrosanct." ..."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."P

Conyers added that...

"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."

This was the response from the very first leader of the Congressional Black Caucus sagely advising this president about his constitutional role and his heritage. From the political 'right' we find former Representative Bob Barr weighing in. In a column Barr argues that the difficulty prosecuting Assange and Wikileaks using an overly broad interpretation of the Espionage Act of 1917 will probably result in the creation of a new Sedition Act.

A new 'Sedition Act,' criminalizing free speech, free press & the Obama Administration

Recent testimony before the House Judiciary Committee revealed that a number of constitutional scholars argued against prosecuting Assange or Wikileaks. In fact a recent Congressional Research Service Report titled: "Criminal Prohibitions on the Publication of Classified Defense Information" cited that any relevant provisions in the Espionage Act have been used to prosecute whistle-blowers solely, but not the news source disseminating the classified information. Consequently, these legal problems will present Attorney General Holder one last choice to effectively prosecute and silence Wikileaks-- either misinterpret broadly the legal limits of the Espionage Act, or sponsor the creation of a new and 'improved' Sedition Act.

The original 'Sedition Act' was effective from 1798 to 1801, and it criminalized free speech. It became a crime punishable by jail time to publish..."false, scandalous, and malicious writing against the government."

Barr also points out that ..."Reading the Espionage the way Assange's critics would have us do, would open a Pandora's Box of virtually unlimited reach." Barr also cites a prominent legal analyst at the Brookings Institute, Benjamin Witte, who issued the following opinion on both a broad reading of the Espionage Act or a new Sedition Act, claiming that...

"By it's terms, it criminalizes not merely the disclosure of national defense information by organizations such as Wikileaks, but also the reporting on that information by countless news organizations."

Furthermore Witte postulated that ...

"It also criminalizes all casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them-in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents."

"Taken at its word, the Espionage Act makes felons of us all."

In conclusion...

The entire controversy surrounding WikiLeaks speaks volumes to the state of democracy here in the US. Like a patient on life support, this cancer of censorship which would criminalize free speech and free press has metastasized through our entire national psyche. The majority of Congressmen have cringed before would be fascists in our midst, failing miserably in their sworn duty to ...protect and defend ...the constitution. Our first African-American president is following in the footsteps of his predecessor, in a series of actions deliberately engineered to destroy what little is left of our liberties. The flagship paper for free speech and free press, namely the New York Times, under Bill Keller has become a willing accomplice in the death of our rights. Yet, we find one voice in Congress, a founder of the Congressional Black Caucus, John Conyers, speaking truth to power when he cautions....

"...But let us not be hasty, and let us not negotiate in a climate of fear or prejudice." Conyers sagely admonishes demands to criminalize free speech and free press by stating that ..."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."

In considering the warnings of Congressman Conyers; I suspect we sent the wrong man to the Oval Office. As for the threats of this administration aimed at free speech and free press--I say, Mr. Holder--get your indictment pen ready--come and get me.

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