Thursday, December 2, 2010

The Attack on WikiLeaks is an Attack on the First Amendment

Every since its recent release of 250,000 State Department cables, WikiLeaks has been under attack by U.S. government officials.  Unfortunately, in some ways, the attack on WikiLeaks is an attack on the First Amendment. 

This week, U.S. Representative Peter King argued that the U.S. government should designate WikiLeaks a terrorist organization. 

22 U.S. Code, Title 22, Ch. 38,  Section 2556f(d) defines terrorism as follows: 

(1) the term “international terrorism” means terrorism involving citizens or the territory of more than 1 country;

(2) the term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents;

(3) the term “terrorist group” means any group practicing, or which has significant subgroups which practice, international terrorism.
Obviously, WikiLeaks is not a terrorist organization.  It has not engaged in any acts of violence.  It is a news organization.  WikiLeaks merely reports and supplies information to other news organizations such as the New York Times and the UK Guardian. In addition, there have been no confirmed reports of any deaths linked to WikiLeaks' release of any information.  
If the government embraces Rep. King's extremist view and starts labeling news organizations as terrorist organizations, our First Amendment rights will be eviscerated.  For instance, bloggers and reporters who oppose the wars in Afghanistan and Iraq could be viewed as threats to national security.  The government could designate them as terrorists. 
This assault on the First Amendment does not end with Rep. King.  As reported in Reuters, under pressure from Homeland Security Committee Chairman Joe Lieberman, Amazon stopped hosting the WikiLeaks website.  Through staff, Senator Lieberman also urged "other companies that provide web-hosting services to boycott WikiLeaks." 

If Lieberman is able to do this to WikiLeaks, who is next?  The New York Times?  The Washington Post?  The New York Times, Washington Post and all other major news organizations published the same information as WikiLeaks.  The government could force internet providers to stop hosting those and other news sources.

Finally, Attorney General Eric Holder is conducting a criminal investigation against WikiLeaks founder Julian Assange.  Some speculate that the Justice Department may use the Espionage Act to prosecute Assange. The Espionage Act of 1917 states:
"SEC. 3. Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall wilfully make or convey false reports, or false statements, or say or do anything except by way of bona fide and not disloyal advice to an investor . . . with intent to obstruct the sale by the United States of bonds . . . or the making of loans by or to the United States, or whoever, when the United States is at war, shall wilfully cause . . . or incite . . . insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct . . . the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall wilfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag . . . or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government . . . or the Constitution . . . or the military or naval forces . . . or the flag . . . of the United States into contempt, scorn, contumely, or disrepute . . . or shall wilfully display the flag of any foreign enemy, or shall wilfully . . . urge, incite, or advocate any curtailment of production in this country of any thing or things . . . necessary or essential to the prosecution of the war . . . and whoever shall wilfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favor the cause of any coun try with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both...." (Emphasis added)
In his article "Prosecution of WikiLeaks Founder Fraught with Unprecedented Legalities" on the, Michael Hughes explains why it may be difficult to bring such charges.  Hughes also states that: "Prosecuting Mr. Assange could also open the door for going after traditional media organizations, including The New York Times, which was provided advance access to the materials."  By all media accounts, WikiLeaks did not steal or take the information through espionage.  Army Pfc. Bradley Manning allegedly leaked the information to WikiLeaks.
I have not thoroughly researched the Espionage Act and related case law.  However, the highlighted language is extremely disturbing because it may be used to prosecute all American opponents of the Afghanistan and Iraq wars.  Today, it is WikiLeaks.  Tomorrow, it could be you.  We must protect our First Amendment rights by opposing this unfair attack on WikiLeaks. 


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