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Posts Tagged ‘conspiracy’

I noted yesterday that the apparent government strategy to indict Assange as co-conspirator rather than disseminator of the leaked cables would be still be highly problematic, and the danger to the First Amendment no less grave. Since then, there have appeared articles by several well known writers and legal experts who have come to the same conclusion.

Here’s Jack Goldsmith:

I’m not so sure this path avoids awkward questions.  Charging Assange as a conspirator to Manning’s leak might distinguish the Times in the wikileaks case.  But it would not distinguish the Times and scores of other media outlets in the many cases in which reporters successfully solicit and arrange to receive classified information and documents directly from government officials.  Prosecution of Assange on this theory would therefore raise awkward questions about why DOJ does not bring charges against the American media for soliciting classified information on a regular basis.  It would be a fateful step for traditional press freedoms in the United States.  Indeed, unless I am missing something, it seems that a successful prosecution of Assange for conspiracy to leak would have broader and more corrosive implications for press freedoms than a successful prosecution under the ambiguity-riddled Espionage Act.

Josh Gerstein:

Reporters seek classified information all the time in telephone conversations, in private meetings and other contexts. Just Wednesday, the New York Times carried a front page story from Elizabeth Bumiller describing two classified National Intelligence Estimates on Pakistan and Afghanistan. Does anyone think she was entirely passive in this leak? That the reports, or some summary of them, simply arrived on her desk or in her inbox and she did nothing either to solicit them or to seek more details about them after receiving them? Frankly, if she didn’t at least do the latter, she wouldn’t be doing her job.

It seems to me if the Justice Department takes the approach the Times describes, the issue of classification might fall away altogether. But that could potentially make the First Amendment questions even more profound. A reporter who asks a county clerk for a document that is traditionally sealed might be committing a crime. And with virtually all information stored on computers these days, almost anyone who asks a government employee a question the employee might not need to know the answer to might be conspiring in an unauthorized intrusion into a government information system.

Jack Balkin:

Journalists are not merely passive recipients of information they receive from their sources. It make take weeks of negotiations (and rounds of drinks at the Mayflower Hotel) to get a source to agree to provide sensitive information, and work out the details of the disclosure. Agreements not to reveal a source who provides sensitive information are just that, agreements. If prosecutors wanted to, they would argue that such agreements were part of a conspiracy to leak classified information under the Espionage Act or related statutes.

Journalists should be very worried about the conspiracy theory that the Justice Department is considering. It puts them (and their jobs) in serious danger.

Glenn Greenwald:

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 officials” 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.

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The New York Times reports:

Federal prosecutors, seeking to build a case against the WikiLeaks leader Julian Assange for his role in a huge dissemination of classified government documents, are looking for evidence of any collusion in his early contacts with an Army intelligence analyst suspected of leaking the information.

[…]If Mr. Assange encouraged or even helped the analyst, Pfc. Bradley Manning, to extract classified military and State Department files from a government computer system., they believe they could charge him as a conspirator in the leak, not just as a passive recipient of the documents who then published them.

And what’s the evidence the government has? Apparently Manning, in a chat with another ex-hacker who ultimately turned him in, said the following:

1) He had contacted Wikileaks/Julian Assange and sent him a test leak to make sure Assange was genuine.

2) After being convinced of Assange’s authenticity, he sent him more files, during which he was in direct online contact with Assange who had set up a special server for him to upload these files.

3) Much later, he also physically gave a Wikileaks agent/intermediary a CD containing the files because the slow internet connection made it difficult for Manning to upload these files directly.

The government thinks that if it charges Assange as a co-conspirator based on these facts it can avoid constitutional issues.

There is just one problem. There is nothing in these facts that make Wikileaks a co-conspirator, or distinguishes the Assange — Manning relationship in any way from traditional reporter — source relationships.

Direct online contact? Meeting with Wikileaks intermediary? Every reporter who has unearthed a major story has been in direct contact with his source. Bob Woodward contacted Deep throat innumerable times as he investigated the Watergate scandal. From Wikipedia:

Woodward claimed that he would signal “Deep Throat” that he desired a meeting by placing a flowerpot with a red flag on the balcony of his apartment. When Deep Throat wanted a meeting he would make special marks on page twenty of Woodward’s copy of The New York Times; he would circle the page number and draw clock hands to indicate the hour. They often met “on the bottom level of an underground garage just over the Key Bridge in Rosslyn,” at 2:00 a.m. The garage is located at 1401 Wilson Boulevard.

Or consider the Pentagon papers case, the closest parallel to Wikileaks. Daniel Ellsberg, the leaker, met Neil Sheehan, the NY Times reporter and gave him 43 volumes of the papers.

So if  Assange is charged as a co-conspirator rather than a publisher based on these facts Manning told Lamo, it would be a travesty of justice and the danger to the future of the First Amendment will be no less grave. Every future reporter-source relationship will be in jeopardy; nothing will stop future prosecution of reporters as conspirators.

Who is a co-conspirator? The standard dictionary definition is one who engages with an agreement with another to break the law at some time in the future, and, usually, with at least one overt act in furtherance of that agreement. In this case, by all accounts, Manning obtained the files himself. He contacted Wikileaks because he wanted them published. How on earth does that make Wikileaks a member of a conspiracy?

But the government is no fool. They surely know all this, and the difficulty they will have in convincing an honest judge that Assange is a co-conspirator because he was in early contact with Manning. Why then — apart from the obvious legal and political advantage of going after conspirators rather than media organizations — are they pursuing this angle?

I wondered for a while about this. And I think I now know the answer. The answer lies in Glenn Greenwald’s heartbreaking piece from yesterday, about the inhuman conditions in which Bradley Manning, the supposed leaker, is being held.

From the beginning of his detention, Manning has been held in intensive solitary confinement.  For 23 out of 24 hours every day — for seven straight months and counting — he sits completely alone in his cell.  Even inside his cell, his activities are heavily restricted; he’s barred even from exercising and is under constant surveillance to enforce those restrictions.  For reasons that appear completely punitive, he’s being denied many of the most basic attributes of civilized imprisonment, including even a pillow or sheets for his bed (he is not and never has been on suicide watch).

[…]The brig’s medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.

Just by itself, the type of prolonged solitary confinement to which Manning has been subjected for many months is widely viewed around the world as highly injurious, inhumane, punitive, and arguably even a form of torture.  In his widely praised March, 2009 New Yorker article — entitled “Is Long-Term Solitary Confinement Torture?” — the surgeon and journalist Atul Gawande assembled expert opinion and personal anecdotes to demonstrate that, as he put it, “all human beings experience isolation as torture.”  By itself, prolonged solitary confinement routinely destroys a person’s mind and drives them into insanity.  A March, 2010 article in The Journal of the American Academy of Psychiatry and the Law explains that “solitary confinement is recognized as difficult to withstand; indeed, psychological stressors such as isolation can be as clinically distressing as physical torture.”

Gawande documents that “EEG studies going back to the nineteen-sixties have shown diffuse slowing of brain waves in prisoners after a week or more of solitary confinement.”  Medical tests conducted in 1992 on Yugoslavian prisoners subjected to an average of six months of isolation — roughly the amount to which Manning has now been subjected — “revealed brain abnormalities months afterward; the most severe were found in prisoners who had endured either head trauma sufficient to render them unconscious or, yes, solitary confinement.  Without sustained social interaction, the human brain may become as impaired as one that has incurred a traumatic injury.”

And so far, Manning hasn’t been even presented in court, let alone convicted. So why is he been held in such terrible conditions, and for so long?

Here is my theory why. The authorities hope that by destroying Manning mentally and spiritually, by breaking him completely from within, they will be able to make him testify against Assange . The government intends to read him a script and force him to follow it.

The New York Times hints at the same thing:

Prosecutors could overcome that hurdle if they obtain other evidence about any early contacts — especially if they could persuade Private Manning to testify against Mr. Assange.

So far they are not succeeding. Manning has refused to cooperate with the authorities.

Manning, as Greenwald writes, is a “whistleblower in the purest and most noble form:  discovering government secrets of criminal and corrupt acts and then publicizing them to the world not for profit, not to give other nations an edge, but to trigger worldwide discussion, debates, and reforms.” Indeed, from the transcript of Manning’s chat with Lamo:

Manning: i mean what if i were someone more malicious- i could’ve sold to russia or china, and made bank?

Lamo: why didn’t you?

Manning: because it’s public data

Lamo: i mean, the cables

Manning: it belongs in the public domain -information should be free – it belongs in the public domain – because another state would just take advantage of the information… try and get some edge – if its out in the open… it should be a public good.

As Dan Ellsberg, the hero behind the Pentagon papers said, Manning and Assange are his heroes today. And if they are the heroes, who are the villains? It is not hard to see the answer to that.

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