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Posts Tagged ‘law’

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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I fully agree with all those people who think captured terrorist Ajmal Amir should not be have the right to a lawyer or a proper trial.

Rights like these might make sense in countries with an excess of freedom but they have no place in our nation. There may be some people who believe that the rule of law is too important to be set aside for emotional satisfaction and others who like to spend their ink writing about jurisprudence and the perils of setting bad precedents and suchlike. I say, screw them!

We Indians are an emotional lot, we prefer to express our outrage in the old fashioned way. When have we cared that much about foreign concepts like civil liberties anyway? You can’t talk of proper legal procedures when there is no rule of law to begin with. All this talk about presumption of innocence is pure baloney in a country where so many people die at the hands of criminals everyday. So I  say, torture Ajmal Amir for three days and then hang him in broad daylight without a trial. In fact also slap sedition charges on any lawyer who has declared an intent to extend legal help to that bastard. Such people do not deserve to live among us.  Mahesh Deshmukh, if you think the beating you got at the hand of Shiv Sainiks was bad, wait till you see how prison feels!

And let’s not stop at Ajmal, henceforth hang anyone who a majority of people in the country want to kill at some given moment. After all, we are a democracy and an emotional one to boot.

(Here’s a related post by Aristotle the Geek)

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Spend, armour, destroy. Or perhaps, WTF?

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“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’, because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”

Thomas Jefferson.

(Hat Tip: Aristotle The Geek)

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Before Barack Obama decided to run for President, he spent twelve years as a highly popular lecturer at the University of Chicago law school. The New York Times has a fascinating account of Obama’s time there. (A free registration might be required to view the linked article) 

Prof. Barnett, writing at the conservative-libertarian blog The Volokh Conspiracy says that the materials show that “[Obama] is a smart guy, and an exceptionally fair-minded teacher” but “they tell us little about his core beliefs on the very sensitive issues covered by these courses.” Considering these materials are taken from courses he taught to students, I think that is a good thing.

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If you are a rebel and the law comes in the way of your natural course of action, you would probably feel justified in violating it. But what if those in power decide they are going to stop you from doing something that you hadn’t planned on doing anyway? What do you do if there is a law that bars you from an activity that is immoral in your personal code but is strictly your business? 

In other words, does your outrage at someone else infringing on your basic freedoms justify your doing what they say you cannot — in order to demonstrate that you do not and will not respect anyone who tries to run you? Is it reasonable to violate a (bad) law simply because it is the most satisfying or effective way you can make this particular ideological point?

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It’s the classic pitfall. The law tries to prevent a reprehensible act of fraud (in this case, obtaining sex from one’s brother near-sleeping girlfriend by impersonating the brother). However it does so by passing a law whose language is much broader than it should. The result is yet another encroachment by the law into an area it has no business being in.

Read Eugene Volokh’s excellent discussion on a potentially chilling statute that is being pushed for passage in Massachusetts. Also the comments under Volokh’s post are interesting; below are some of my favourites.

Make-up is now to be illegal in Massachusetts, as are Wonderbras and those ass-padding panties.

Did they just outlaw the greater bulk of bar-room pick up lines?

OK, let’s take a hypothetical 25 yr old Tom and 16 year old Suzy. Suzy tells Tom she is 19, and they have sex. In both Texas and Mass, this is rape. In Texas, she’s the victim, in Mass, he is. Makes sense to me!

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