Following
today's verdict in the Bradley Manning case, Ace wrote:
Bradley Manning Acquitted
of Aiding the Enemy, the Most Serious Charge Outstanding Against Him
Yet-- this is a very
strange message for a military court to send. I suppose one message is
"They won't just convict you based on national security grounds, but will
closely examine the evidence to determine if you are really guilty of what you
are charged with."
On the other hand --
"They won't just convict you national security grounds." You can
download millions of documents to a man known to be venomously anti-American
and yet even the US military courts will sort of give you a pass on it, if
you say your heart was "in the right place."
Very strange.
With
all due respect, it's not really a strange decision. Whether most like it
or not, wikileaks is a journalistic enterprise and I will point out the
relevant part of The New York Times v
United States (Pentagon Papers case):
‘The Bill of Rights
changed the original Constitution into a new charter under which no branch of
government could abridge the people’s freedoms of press, speech, religion, and
assembly. Yet the Solicitor General argues and some members of the Court appear
to agree that the general powers of the Government adopted in the original
Constitution should be interpreted to limit and restrict the specific and
emphatic guarantees of the Bill of Rights adopted later. I can imagine no
greater perversion of history. Madison and the other Framers of the First
Amendment, able men that they were, wrote in language they earnestly believed
could never be misunderstood: ‘Congress shall make no law . . . abridging the
freedom . . . of the press. . .’
BOTH
THE HISTORY AND LANGUAGE OF THE FIRST AMENDMENT SUPPORT THE VIEW THAT THE PRESS
MUST BE LEFT FREE TO PUBLISH NEWS, WHATEVER THE SOURCE, WITHOUT CENSORSHIP,
INJUNCTIONS, OR PRIOR RESTRAINTS…IN THE FIRST AMENDMENT, THE FOUNDING FATHERS
GAVE THE FREE PRESS THE PROTECTION IT MUST HAVE TO FULFILL ITS ESSENTIAL ROLE
IN OUR DEMOCRACY. THE PRESS WAS TO SERVE THE GOVERNED, NOT THE GOVERNORS.
The Government’s
power to censor the press was abolished so that the press would remain forever
free to censure the Government. THE PRESS WAS
PROTECTED SO THAT IT COULD BARE THE SECRETS OF GOVERNMENT AND INFORM THE
PEOPLE. ONLY A FREE AND UNRESTRAINED PRESS CAN EFFECTIVELY EXPOSE DECEPTION IN
GOVERNMENT. And paramount among the responsibilities of a free
press is the duty to prevent any part of the government from deceiving the
people.
In other words, we
are asked to hold that, despite the First Amendment’s emphatic command, the
Executive Branch, the Congress, and the Judiciary can make laws enjoining
publication of current news and abridging freedom of the press in the name of
‘national security.’ The Government does not even attempt to rely on any act of
Congress. Instead, it makes the bold and dangerously far-reaching contention
that the courts should take it upon themselves to ‘make’ a law abridging
freedom of the press in the name of equity, presidential power and national
security, even when the representatives of the people in Congress have adhered
to the command of the First Amendment and refused to make such a law.
THE
FOUNDING FATHERS GAVE THE FREE PRESS THE PROTECTION IT MUST HAVE [TO] BARE THE
SECRETS OF GOVERNMENT AND INFORM THE PEOPLE.’
– Justice Hugo Black,
writing for the majority, in New York Times Co. v United States, 403
U.S. 713 (1971)
It
can be argued that the release of the Pentagon Papers certainly aided the Viet
Cong with their propaganda efforts, at the very least, but the American people
also learned the extent to which their government was lying to them.
Should Americans have been kept in the dark?
As
Justice Potter Stewart wrote in his concurrence in New York Times:
‘In
absence of governmental checks and balances, the only effective restraint upon
executive policy and power may lie in an enlightened citizenry - in an informed
and critical public opinion which alone can here protect the values of democratic
government.’
I'm NO fan of either Assange or wikileaks, but I don't want the government deciding who is and who is not entitled to First Amendment protections. The Founders certainly did not limit their opinions of who was a journalist or what constituted a 'journalistic activity' to big newspapers and their employees. The guy printing pamphlets was considered to have as much of a right to 'freedom of a press' as the biggest newspaper in the country.
Would
we have wanted any other way? Remember, Thomas Paine was just a
pamphleteer.
In
Lovell v City of Griffin, 303 U.S. 444 (1938), Chief Justice Charles
Evans Hughes, writing for the majority, defined the 'press' as 'every sort of
publication which affords a vehicle of information and opinion.'
I
will point out that we've had people like Eric Holder, Pete King, and Lindsey Graham 'wonder' recently who was
entitled to First Amendment protections. Both King and Graham aren't
sure that a bloggers like Ace should have constitutional protections.
Do I want the same government, who claimed that James Rosen was a probable
violator of the Espionage Act of 1918 and flight risk, to decide whether I or
other bloggers should be protected?
No.
Do you? If so, you shouldn't. It's not as though the Federal
government has failed to move against the 'press' and the 'people' in the past
for 'offences.' In 1798, the Federalist-led government passed the Alien
and Sedition Acts. The Sedition Act part made it a crime to criticise
Congress and the President (The Vice-President was excepted, which is of
particular interest considering the fact that the VP at the time was Thomas
Jefferson, who was a loud opponent of the Acts and pardoned those, who had been
convicted under them, after he won the Presidency in 1800.) It applied to
the press, too.
This
is the bottom line: Wikileaks was not a named 'enemy' of the United
States when this happened; thus, Bradley Manning could not have aided an
enemy. If the government wants to start labeling groups that it argues
are engaged in other forms of 'terrorism or espionage,' then let it make its
case to the American people and the courts.
As Gabriel Schoenfeld, author of Necessary Secrets: National Security, the Media, and the Rule of Law, wrote over at National Review:
As a member of our armed forces,
Bradley Manning assumed a special responsibility to protect classified
information, a responsibility he abdicated when he turned over a vast quantity
of classified government documents to Wikileaks. His conviction on charges
under the Espionage Act is yet another vindication of the rule of law in the
contentious arena of national-security leaks. Earlier this year, Manning
pleaded guilty to a series of lesser charges that could bring him 20 years in
prison. The prosecution pressed ahead with the remaining counts, including the
controversial one of “aiding the enemy” on which Manning was today acquitted.
The government’s theory on this last count,
that the enemy — al-Qaeda — was aided because, like the rest of the world, it
was able to read the classified documents Manning provided to Wikileaks, seemed
to me be an unwise stretch of the law with a chain of undesirable implications.
For better and for worse, classified
information leaks out of Washington’s national-security machinery on a daily
basis. Our newspapers are full of stories based upon leaks and much of what we
know about American foreign policy is the result of these leaks. While some
leaks — of necessary secrets — can endanger the country, many other leaks — of
unnecessary secrets, of which our government has a wealth — have few adverse
consequences at all. If routine leaking is turned into a capital crime — which
is the direction suggested by the aiding the enemy charge — our understanding
of what our government is doing around the world would have suffered a
significant blow. The judge’s decision today strikes me as an appropriate
balance that, if matched by an appropriate sentence, will meet the twin demands
of deterrence and justice.
I concur.
http://tinyurl.com/k84utgt
1 comment:
I do not concur.
When Manning gave the documents to wikileaks they were in their raw form. there was no redaction of names, places, or times that would prevent the enemy from gleaning intelligence harmful to his fellow soldiers or to our diplomatic efforts in that part of the world.
He made his betrayal from a theater of war where his comrades were dying every day.
I keep seeing people conflating this case with the leaks coming from the civilian side of the the government. there is a reason that soldiers are under a separate code of laws.
My opinion; hanging.
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