Try Assange Under the Espionage Act
The outrage over the WikiLeaks release of 90,000 classified operational reports from Afghanistan is slowly congealing into calls for action. Adm. Mike Mullen and Secretary of Defense Robert Gates charged that the leaker and publisher “have on their hands the blood of some young soldier or that of an Afghan family.” Former CIA Director Michael Hayden asserted that “this is the kind of stuff that gets people killed,” while Jane Harman, the subcommittee chair of the House Homeland Security Committee, said leaked classified information is not an “acceptable” contribution to the debate about U.S. policy in Afghanistan. Julian Assange claimed the U.S. Department of Justice considered charging him as “a co-conspirator for espionage.”
We should be so fortunate.
Fred Kaplan at Slate.com said charging Assange under the Espionage Act (18 USC 793) would be “absurd,” citing the attempted prosecution of American Israel Public Affairs Committee (AIPAC) staffers Steven J. Rosen and Keith Weissman. They gathered and leaked classified information to Israel and the press useful in AIPAC’s drive to force the U.S. to confront Iran. Kaplan claims the 2005 AIPAC indictment [.pdf] was “startling” because “to ‘gather sensitive information and then to deliver it to persons not entitled to receive it’ – this is what news reporters do all the time. More remarkably, Rosen and Weissman were indicted for receiving the information. This is what newspaper, magazine, and Web site readers do all the time. ”
While Kaplan’s reference to the AIPAC espionage case is highly useful, his analysis is deeply flawed. Imagine if Assange were indicted and allowed to call Gates, Hayden, and Harman to testify.
The Assange defense team could ask the former CIA and current Department of Defense (DOD) chiefs about their views of the Freedom of Information Act (FOIA), the only sanctioned process to declassify documents demanded by the public. Assange could then present as “Exhibit A” their recent joint refusal to release documents that long ago should have been declassified.
Since the 1980s, investigative reporters have tried to obtain a trove of still-classified documents about the Iran-Contra affair and DOD/CIA sanctioned drug-running and the sale of taxpayer-funded arms stockpiled in Israel to finance the Nicaraguan Contras in violation of laws passed by Congress. The final report of the independent counsel for Iran-Contra stated that Secretary of Defense Robert Gates “was close to many figures who played significant roles in the Iran/Contra affair and was in a position to have known of their activities,” though he was never indicted.
The DOD and CIA responded contemptuously to a 2009 FOIA request for documents, censoring all of the relevant sections grudgingly released in 2010 [.pdf]. The Assange defense team could ask Robert Gates how much actual Nicaraguan blood was spilled by Gates and the CIA in violation of the Boland Amendments. Gates can then explain how his department can be held accountable if it won’t even release decades-old documents about criminal activity, much less currently relevant information.
Congresswoman Jane Harman should also testify under oath.
Harman thwarted accountability for classified leaks in the 2005 Rosen and Weissman espionage case by promising a still-unknown Israeli agent she would “waddle into” the case and use her influence to get it dismissed. Harman should be asked on the stand the identity of that Israeli agent, and whether it was appropriate to collude with a foreign government in order to subvert a domestic criminal prosecution by using her influence in Congress.
Kaplan’s article asserts that “in the end, the [2005] charges against the AIPAC officials were dropped; the judge, the prosecutors, everyone involved realized that the logic of the law was either too vague or too draconian.”
That’s simply not true.
In their May 2009 motion to dismiss [.pdf], prosecutors cited Judge T.S. Ellis’s “unexpectedly higher evidentiary threshold in order to prevail at trial.” The judge assigned prosecutors the impossible task of proving Rosen and Weissman were in a “state of mind” [.pdf] in which they believed they were actually committing a crime, effectively gutting the Espionage Act. The New York Times noted that Joseph Persichini Jr. – the top official at the FBI’s Washington office – was “disappointed” and FBI agents were “infuriated” the charges were dropped.
Harman should be asked by the Assange defense team whether classified leaks are encouraged if they benefit powerful elites and their interest groups (which in her case, is the Israel lobby) pushing for, benefiting from, and sustaining wars.
This is still a very timely question.
AIPAC, which is still pushing for war with Iran, continually trafficks in classified information, mostly to the detriment of Americans. Back in the mid-1980s, Rosen’s AIPAC research team obtained purloined International Trade Commission documents chock full of classified U.S. industry secrets. That endeavor more resembled economic warfare – against U.S. corporations and interest groups who dared oppose preferential trade subsidies – than journalism. The FBI investigated the incident and found cause for prosecuting first espionage then “theft of government property,” but couldn’t interest the DOJ in a prosecution.
Steven J. Rosen and AIPAC may also soon be passing around more classified information (or derivatives) in an upcoming Oct. 18, 2010, arbitration hearing as lawyers decide whether or not to reward Rosen with $20 million for services rendered. Rosen sued AIPAC, claiming that in firing him, it singled him out for engaging in the common workplace practice of circulating classified information. The judge in the civil case has helpfully granted a protective order [.pdf] so that interested citizens, journalists, watchdogs, and the law enforcement community won’t be privy to their private deliberations.
Assange should ask Harman why she condemns classified information leaks from WikiLeaks while protecting those of AIPAC. She should be asked why it is permissible for AIPAC and Rosen to circulate classified information and derivatives taken from the U.S. government in order to negotiate a financial settlement behind closed doors.
Then Assange should simply walk out of the courtroom, claiming – like Rosen and Weissman before him – he is always in a pure “state of mind” when he obtains and leaks documents.
Case closed.
This hypothetical courtroom drama reveals that the pursuit of Assange is not really about classified information. It is about revealing facts to Americans that quantifiably undercut the credibility, rationale, and prosecution of the tragic war in Afghanistan. Until the president, the Department of Defense, and the CIA stop abusing the U.S. classification system to cover up illegal, corrupt, or simply ill-advised activities, they should expect tech-savvy activists to continue – much like the Internet – routing around their obstacles.
Read more by Grant Smith
- AIPAC Obtained Missile Secrets – February 5th, 2012
- AIPAC Tries to Bamboozle DC Appeals Court – January 10th, 2012
- AIPAC Economic Warfare Also Targets US – December 9th, 2011
- Americans Pay Dearly to Maintain Israel’s Nuclear Secrets – October 19th, 2011
- Does AIPAC Have Only Two Major Donors? – August 9th, 2011
JJJihad
August 8th, 2010 at 9:48 pm
Prosecutors moved to dismiss the charges against Rosen and Weissman "with prejudice," meaning the government gave up the right to appeal from the district court judge's pretrial orders–even though the appeals court earlier had virtually guaranteed a reversal of those orders if the government waited until the right time to appeal (i.e., pretrial dismissal). What the effing Justice Department did with these two scumbag traitors and spies would have made Don King blush.
Andrewp111
August 8th, 2010 at 9:59 pm
The Intelligence Identities Protection Act is a better alternative.
Wolfgang9
August 9th, 2010 at 1:44 am
How can a criminal politician like Harman who was paid for acting in the interest of a foreign power still run the House Homeland Security Committee? She should be indicted for fraught and treason if the US would be a country where law and order has a meaning.
guest
August 9th, 2010 at 2:36 am
Assange does not work for Israel. He would be found guilty. Anyone believing there is fairness in cases involving national security has lost his mind. Judges deliver whatever they are ordered to.
pwi
August 9th, 2010 at 4:39 am
So far the wiki "leaks" have had no impact on either policy or planning. The government should simply ignore wikileaks publicly while undermining them covertly.
john
August 9th, 2010 at 5:33 am
No, Mr. Gates, the blood of Americans is on your hands– and the hands of all of those who send American soldiers into harm's way for purposes unrelated to American security, or in the interest of American foreign policy. If you send them into an unnecessary war, they will be killed unnecessarily. Wikileaks,by revealing these mechanizations, and bringing these policies to an end will, it is hoped, succeed in stopping the blood from flowing.
Dan
August 9th, 2010 at 5:51 am
It's not enough to say Jane Harman's constituency is the Israeli Lobby, that's clear enough. The likelihood is that she's an out-and-out agent who has infiltrated Congress who should be indicted for treason.
musings
August 9th, 2010 at 6:16 am
Reporters were embedded in Iraq, but there are those who believe a disproportionate percentage of them still were killed in seemingly random attacks. The information about Abu Ghraib eventually leaked out, but was attributed to a few bad apples (as My Lai had been before – treated as an aberration). The Pentagon Papers' release triggered one of the break-ins of the Watergate burglars, which brought down Nixon. In that old story, a newspaper, the Washington Post, got a lot of credit, while I believe it was the New York Times which originally released the paper.
Are we really in a new age? If so, there is a lot of information in the National Archives and elsewhere that could come out. Cia? Pentagon? But an all-out dump would be counter-productive. I think it would behoove our government to start honoring FOIA requests promptly. Of course they will attempt to redact a lot.
The Freedom of Information Act came on the heels of Watergate. It set up the concept that the government is merely keeping records as a public servant to the American people, who should have information to make informed choices. Vietnam had been conducted without a lot of understanding of the decision-making process by government. The slogans and claptrap which herded the public from one lie to the next, stood exposed to the light of day.
It is the conceptional framework of government as a servant of the people which has broken down. Perhaps there are those who regard themselves as libertarians who agree with the right wing which feel government should be small enough to drown in a bathtub. There are others who believe government's primary role is that of defense. But we can see where this has led, paradoxically. A little more of the concept of government records as belonging to the people should be restored. But as Justin puts it, we are in a new era.
If Julian Assange were to meet with a malign fate, well, he is Spartacus so to speak. Or so the romantic notions of the author would have it. Knowing some of the types in the hacker world, I would have to agree with Justin. The power of print transformed the world and brought down authorities long used to a servile population. This is another chapter in that process, though unfortunately, it rests on a very technically delicate structure. I would recommend that we do not forget to write on paper.
Pentagostal
August 9th, 2010 at 1:40 pm
How Dare WikiLeaks interrupt our wars for $!!!
J.S
August 9th, 2010 at 5:04 pm
Now that we know the name of the leaker,isn't it time to release the names of the war criminals?
marko
August 9th, 2010 at 6:15 pm
Please, Mr. Smith, are you serious about a trial? After Gitmo? Like the gov't needs evidence? or has even the slightest interest in justice? in truth? in fairness? You are so 20th Century. That shit is long gone. We are waaay past that stuff. This is bare-knuckle tyranny and vengeance. Nothing else.
What Assange thinks about 9/11 or the rest of that stuff is really immaterial. Just keep pumpin' out those docs, dude. It aint much but it's the best thing we got goin' for now.