The co-conspirator angle

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.

Read Full Post »

“And then they came for me”

This is probably familiar to anyone who has been following the civil war — now declared over by the government — in Sri Lanka, but I missed it till today. It is an oped by Lasantha Wickramatunge, former editor of the Sunday Leader newspaper of Sri Lanka. It was published posthumously and is a chilling piece of writing — not just because it eloquently defends civil liberties — but because Wikramatunge was murdered in January this year, exactly as he predicted in the linked essay. Do read it if you haven’t already.

Read Full Post »

AP irony

The Associated Press wants bloggers to stop quoting passages from its news reports. At the risk of incurring their wrath, I’ll quote the spokesman:

Cutting and pasting a lot of content into a blog is not what we want to see. It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.

In fact the AP sent letters to the Drudge Retort, asking it to take down several posts which contained quotations from A.P. articles ranging from 39 to 79 words.

But here’s the irony:  Around the same time it was harassing bloggers, the AP published an article which lifted 154 words from a certain blog post.

Perhaps it is the AP’s position that only those who are not news professionals should have to pay for content. Of course I am shamelessly paraphrasing Glenn Reynolds here. Also have a look at the image below which I lifted directly from Bright and Early (who may have either lifted it from AP’s own website or simply made it up.)

Since the AP owns all the words in the English alphabet now, I guess I should start blogging in Eskimoish. 

Read Full Post »

The Kozinski affair

Since the Judge Kozinski story broke three days ago, I have frequently visited The Volokh Conspiracy hoping that Eugene Volokh — an outstanding blogger who I frequently cite —  would post on the issue. My interest was piqued not only because I admire Kozinski — a brilliant judge with a libertarian streak — but because Volokh had once clerked for him. Here is the expected post, at last.

I’ve tried to avoid blogging about the Judge Kozinski story, because I’m so obviously biased on the subject. I clerked for the Judge. The Judge officiated at my wedding. I talk to him often. I consider him a close friend, he’s taught me a huge amount, and he’s helped me tremendously in my career, and not just by giving me a valuable credential. What I say on the matter will naturally and properly be discounted because of my bias. Still, I can’t help myself any longer, so I’ll pass along what I think, and you can give it whatever credit you think is due.

Here is a link to the rest of Volokh’s article, which I recommend. I agree completely with all his points. However, I am a tad disapponted that he places so much emphasis on the fact that the images on the judge’s site were tame. In other words, while I agree with his conclusion, 

We should all leave Kozinski to his own privately expressed sense of humor, as we’d like the world to leave us to ours,

I would have been happier if he had added it didn’t really matter even if that sense of humour was much racier than what it actually is.

It would be a great day for freedom when the obscenity law is finally repealed. The root of the current controversy is that Kozinski was also going to officiate this case.  Of course, because of the controversy, he has now recused himself from it. The defence, I suppose, would have fancied their chances if he had remained the judge — Kozinski has always known to be a staunch defender of free speech. The prosecution must be chortling with glee.

On another note, I really hope that the LA Times, which broke the story, publishes a retraction and offers Kozinski an apology. They have displayed an astonishing lack of journalistic integrity in their coverage of the matter. It has, to put it lightly, been full of misleading errors. For instance, they said that one of the images showed a man ‘cavorting’ with a donkey when it wasn’t even close to that. But if the LA Times did apologize to this supposedly conservative judge, it wouldn’t really be the LA Times any more, would it?

Read Full Post »

16 nominations for Reason

Reason has hauled in 16 nominations for the annual Greater Southern California Press Club Awards. They dominated the magazine category, earning 10 of the 20 finalist spots. 

For those who are unaware, Reason is a monthly libertarian magazine, probably the best libertarian magazine that exists.

Read Full Post »

The price of honesty

The Washington Post has a fine article about Samantha Power, the top Obama aide who was forced to resign after a Scot newspaper published her ‘off-the-record’ remark that Hillary Clinton was acting like a ‘monster’ and ‘stooping to anything’.

How does a Harvard professor and Pulitzer Prize-winning author manage to blow up her brief political consulting career over the use of the phrase “off the record”?
Samantha Power resigned as a foreign-policy adviser to Barack Obama yesterday, hours after the Scotsman newspaper quoted her as making a disparaging remark about Hillary Clinton — although, immediately after uttering the comment, she asked the reporter not to use it. As the story recounted:

” ‘She is a monster, too — that is off the record — she is stooping to anything,’ Ms. Power said, hastily trying to withdraw her remark.”

Read the whole article for a wonderful profile of Power, a brilliant academic who was also once called the world’s most beautiful woman by Vogue magazine and whose life changed forever when the words “It’s Obama, call me” showed up on her cellphone one day.

It is unlikely Samantha Power will be asked to play a role as a political advisor by anyone again. It is even more unlikely that Clinton’s spokesperson Howard Wolfson will resign for comparing Obama to Kenneth Starr earlier this week. Such is politics.

Read Full Post »