Friday, December 17, 2010

Eric Holder is a menace

To the First Amendment.

The New York Times reported yesterday that the Justice Department was working overtime to figure out a way to charge Julian Assange, probably for “conspiracy” to commit espionage. As Jack Balkin – writing at Balkinization; imagine that – observes, the success of such a move would imperil all journalists doing investigative work and relying on sources:

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.

The Justice Department might try to distinguish the two cases by seeking to prove that Assange had offered to provide technical assistance to Manning to gain access to the computer system, or provided Manning with software or programming skills. The problem is that this distinction isn't much of a difference. Traditional investigative journalists may assist their sources in other ways besides giving them hacking software. They may, for example, make it easier for them to transmit sensitive information or help them store or transmit the information. They may smooth things over for their sources or encourage them to disclose in countless ways.

As I explained to Savage in a previous interview, Assange is no fool. He understands that the best way to escape prosecution is present himself as a journalist and to point out in every way possible that what he does is like what other investigative journalists do. Indeed, Wikileaks is only disclosing a very small percentage of the files it possesses, and it is working with mainstream journalistic organizations in deciding which files to release.

In a bid to be self-referential once more, here’s a bit of an earlier post of mine about Joe Lieberman stating that maybe the NYT should be “investigated,” too:

The sad thing is, there probably is a debate raging at the Justice Department about how to charge Assange, and maybe the Times, mostly because there no basis to do it. But that doesn’t mean it won’t happen, at least regarding Julian Assange. It would be nice, actually, if both were charged, because the Times would put up a helluva good joint defense.

As discussed in my earlier linked post, the NYT and Assange, and WikiLeaks, too, are in exactly the same position: they did not leak the information and did not violate the Espionage Act: they published the information, that’s all. But it’s obviously easier to beat up on Julian Assange, so you should look for that to happen.

You should also look, in the end, for the Justice Department to leave the Times alone. Eric Holder does not want to have his ass handed to him on a platter, and in a very public way.

It would be shocking and disgraceful if Eric Holder did something that John Mitchell and the rest of President Nixon’s men didn’t do.


DiscordianStooge said...

This does seem rediculous. Why not just have the CIA take him out? ;)

blogspotdog said...

He might "have" a sexually-transmittable disease after all!

Adam Smith said...

Putting aside what the DOJ might do, didn't the Nixon administation actually seek and obtain an injunction against the NYT? Didn't the DOJ charge Ellsberg?  What's the scandal of the DOJ investigating whether a law has been broken?  Don't certain members of the government take an oath to uphold the law - so don't they have a duty to investigate?

blogspotdog said...

The Nixon Justice Department did seek an injunction against the NYT but lost because of our dear friend, Near v. Minnesota. It never sought criminal sanction against the NYT after publication.

Yes, Daniel Ellsberg was criminally charged; he was the leaker. As I said in an earlier post, charges against him were dismissed because of prosecutorial conduct.

If you read Jack Balkin a little more closely, A.S., it should be apparent why a charge against Assange (who is not a leaker; he and Wikileaks are like the NYT) would be a departure from traditional understanding of the First Amendment. If it doesn't help, I'm afraid that I have nothing to add that might penetrate your consciousness.

I accept that your view is that efforts at transparency in government merit a trip to the hole, but I have a different view. Sorry.

blogspotdog said...

Perhaps Saddam Hussein was a cautionary tale, after all!

Adam Smith said...

OK, let’s compare charges of conspiracy with respect to the NYT and Assange.<span>  </span>Isn’t it true that a conspiracy requires (i) an agreement between two or more persons; (ii) an intent to enter
<p>into the agreement; and (iii) an intent by at least two persons to achieve the objective of the
</p><p>agreement? It is sometimes said that a majority of states now also require an overt act, but an act of mere preparation will suffice.

Now, in the case of the NYT and the Pentagon papers, was there a charge that the NYT conspired – and that has to be before the act, right? – with Ellsberg? I think not.<span>  </span>But with Mr. Assange, although he “understands that the best way to escape prosecution is present himself as a journalist,” is also supposed to be an expert hacker.<span>  </span>Now if he used these alleged hacking skills to assist the soldier who allegedly stole the secrets – before the act - isn’t it conceivable that he conspired with that soldier to break a law?<span>  </span>The broken law would not be “You may not publish documents marked ‘secret’” – as the Nixon crowd attempted to claim against Ellsberg but the present DOJ has not – but that soldiers charged with reviewing secret documents must keep those documents secret.

Attempted cloaking of hacking (don’t forget hacking itself is sometimes a crime) as journalism in order to create a get-out-of-jail card-free is the kind of thing we should not support.<span>  </span>The crime exists in its definition of act and requisite intent, not in the motive, however laudable.

Further, where did I say anything about a “trip to the hole”? Your attempt to switch the subject or to tar me with beliefs I don’t hold is typical of one of your other bloggers, but not of you, Spot.


blogspotdog said...

It is to laugh.
On Dec 18, 2010 3:30 PM, "Echo" <>

Adam Smith said...

The overt act (not clear that US law requires that, you tell me) would e.g. be any pre-theft assistance that your hero A might have given Manning to assist in stealing the secret material.  

Don't go trying to change the subject, Levine-like, by asking me to identify leaked information that  "<span>really harmed the U.S. in a material way."  The issue of whether Manning broke a law unlikely involves that issue, and the issue of did A conspire with A certainly does not involve that issue.</span>

Further, the extent that Holder has a belief that is in some way contradictory to the laws governing handling of classifiied material has no relevance to possible acts of conspiracy by A.  We are a nation of laws, not men. His beliefs don't count.

Adam Smith said...

So, put up my comment, including the part about you changing the topic, and omit the part about others changing the topic.  I don't think that a complaint about changing the topic is an insult, as I raised it repeated in other posts with no rebuttal at all.

Let's go into the fine points of conspiracy law, since the crime of conspiracy is the very issue.

Adam Smith said...

Fine, I will leave you to preach to the converted.