Criminalizing The WhistleBlowers

Salon.com has an article on the detention of Bradley Manning you should read, and how this is going to have some pretty far reaching implications:

What all of this achieves is clear.  Having it known that the U.S. could and would disappear people at will to “black sites,” assassinate them with unseen drones, imprison them for years without a shred of due process even while knowing they were innocent, torture them mercilessly, and in general acts as a lawless and rogue imperial power created a climate of severe intimidation and fear.  Who would want to challenge the U.S. Government in any way — even in legitimate ways — knowing that it could and would engage in such lawless, violent conduct without any restraints or repercussions?

That is plainly what is going on here.  Anyone remotely affiliated with WikiLeaks, including American citizens (and plenty of other government critics), has their property seized and communications stored at the border without so much as a warrant.  Julian Assange — despite never having been charged with, let alone convicted of, any crime — has now spent more than a week in solitary confinement with severe restrictions under what his lawyer calls “Dickensian conditions.”  But Bradley Manning has suffered much worse, and not for a week, but for seven months, with no end in sight.  If you became aware of secret information revealing serious wrongdoing, deceit and/or criminality on the part of the U.S. Government, would you — knowing that you could and likely would be imprisoned under these kinds of repressive, torturous conditions for months on end without so much as a trial:  just locked away by yourself 23 hours a day without recourse — be willing to expose it?  That’s the climate of fear and intimidation which these inhumane detention conditions are intended to create.

Greenwald has yet another Salon article on the attempt to “get Assange” through Manning:

First, the Obama administration faces what it perceives a serious dilemma:  it is — as Savage writes — “under intense pressure to make an example of [Assange] as a deterrent to further mass leaking),” but nothing Assange or WikiLeaks has done actually violates the lawGetting to Assange through Manning

The only thing keeping either one of these two guys alive today is the world-wide publicity that developed.  Otherwise, they’d have been renditioned, tortured and executed already.  To hell with the law — anybody that thinks this country obeys the law it demands on everyone else has a screw loose.

UPDATE:  Several others make similar points about the DOJ’s prosecution theory, including Yale Law Professor Jack Balkin (“the conspiracy theory also threatens traditional journalists as well”); former Bush OLC Chief and Harvard Law Professor Jack Goldsmith (“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” and “would be a fateful step for traditional press freedoms in the United States”); Politico‘s Josh Gerstein (“Reporters seek classified information all the time in telephone conversations, in private meetings and other contexts” and thus “the distinction . . . strikes me as patently ridiculous”); and The American Prospect‘s Adam Serwer (“the slippery slope is only the slightest bit less steep” than charging Assange under the Espionage Act).

Indeed, Bob Woodward’s whole purpose in life at this point is to cajole, pressure and even manipulate government officials to disclose classified information to him for him to publish in his books, which he routinely does.  Does that make him a criminal “conspirator”?  Under the DOJ’s theory, it would.  All of this underscores one unavoidable fact:  there is no way to prosecute Assange and WikiLeaks without criminalizing journalism because WikiLeaks is engaged in pure journalistic acts:  uncovering and publicizing the secret conduct of the world’s most powerful factions.  It is that conduct — and not any supposed crime — which explains why the DOJ is so desperate to prosecute.

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