Lieberman Introduces Anti-Wikileaks Legislation

[INRM]

Lieberman Introduces Anti-Wikileaks Legislation
Author: Kevin Paulson
URL: http://www.wired.com/threatlevel/2010/12/shield/

Senator Joseph Lieberman and other lawmakers on Thursday introduced legislation that would make it a federal crime for anyone to publish the name of a U.S. intelligence source, in a direct swipe at the secret-spilling website WikiLeaks.

The so-called SHIELD Act (Securing Human Intelligence and Enforcing Lawful Dissemination) would amend a section of the Espionage Act that already forbids publishing classified information on U.S. cryptographic secrets or overseas communications intelligence — i.e., wiretapping. The bill would extend that prohibition to information on HUMINT, human intelligence, making it a crime to publish information “concerning the identity of a classified source or informant of an element of the intelligence community of the United States,” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to U.S. interests.

Leaking such information in the first place is already a crime, so the measure is aimed squarely at publishers.

Lieberman’s proposed solution to WikiLeaks could have implications for journalists reporting on some of the more unsavory practices of the intelligence community. For example, former Panamanian dictator Manuel Noriega was once a paid CIA asset. Would reporting that now be a crime?

Wikileaks and the First Amendment
Author: Geoffrey R. Stone
URL: http://www.huffingtonpost.com/geoffrey-r-stone/wikileaks-and-the-first-a_b_804381.html?

The so-called SHIELD Act, which has been introduced in both Houses of Congress, would amend the Espionage Act of 1917 to make it a crime for any person knowingly and willfully to disseminate, in any manner prejudicial to the safety or interest of the United States," any classified information... concerning the human intelligence activities of the United States or... concerning the identity of a classified source or informant" who is working with the intelligence community of the United States.

Although this Act may well be constitutional as applied to a government employee who unlawfully "leaks" such material to persons who are unauthorized to receive it, it is plainly unconstitutional as applied to other individuals or organizations who might publish or otherwise disseminate the information after it has been leaked. With respect to such other speakers, the Act violates the First Amendment unless, at the very least, it is expressly limited to situations in which the dissemination of the specific classified information at issue poses a clear and present danger of grave harm to the nation.

The clear and present danger standard, in varying forms, has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes first enunciated it in his 1919 opinion in Schenk v. United States. In the 90 years since Schenck, the precise meaning of "clear and present danger" has evolved, but the principle that animates the standard was stated eloquently by Justice Louis D. Brandeis in his brilliant 1927 concurring opinion in Whitney v. California:

Those who won our independence... did not exalt order at the cost of liberty... [They understood that] only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such... is the command of the Constitution. It is, therefore, always open to... challenge a law abridging free speech . . . by showing that there was no emergency justifying it.​

This principle is especially powerful in the context of government efforts to suppress speech concerning the activities of the government itself, for as James Madison observed, "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both." As Madison warned, if citizens do not know what their own government is doing, then they are hardly in a position to question its judgments or to hold their elected representatives accountable. Government secrecy, although sometimes surely necessary, can also pose a direct threat to the very idea of self-governance.

In the secrecy situation, the most obvious way for government to prevent the danger is by ensuring that information that must be kept secret is not leaked in the first place. Indeed, the Supreme Court made this very point quite clearly in its 2001 decision in Bartnicki v. Vopper, in which the Court held that when an individual receives information "from a source who has obtained it unlawfully," that individual may not be punished for publicly disseminating the information "absent a need of the highest order."

The bottom line is this: The proposed SHIELD Act is plainly unconstitutional. At the very least, it must limit its prohibition to those circumstances in which the individual who publicly disseminates classified information knew that the dissemination would create a clear and present danger of grave harm to our nation or its people.

I personally think the SHIELD act will be a catastrophe if passed. It will give the government a great degree of power to punish journalists who do their job exposing government misconduct; it would also further embolden the government to misuse secrecy to protect themselves from the public.

I'd like to hear everybody else's view on the matter.


Notes

• This bill has been co-sponsored by Senator John Ensign, and Senator Scott Brown, so if you live in Nevada or Massachusetts and you oppose this legislation, contact them
• As much information as I quoted, I did not quote the majority of the article

INRM
"No matter how I die, it was murder"

 

[Spindrift]

Lieberman Introduces Anti-Wikileaks Legislation
Author: Kevin Paulson
URL: http://www.wired.com/threatlevel/2010/12/shield/

Wikileaks and the First Amendment
Author: Geoffrey R. Stone
URL: http://www.huffingtonpost.com/geoffrey-r-stone/wikileaks-and-the-first-a_b_804381.html?

I personally think the SHIELD act will be a catastrophe if passed. It will give the government a great degree of power to punish journalists who do their job exposing government misconduct; it would also further embolden the government to misuse secrecy to protect themselves from the public.

I'd like to hear everybody else's view on the matter.


Notes

• This bill has been co-sponsored by Senator John Ensign, and Senator Scott Brown, so if you live in Nevada or Massachusetts and you oppose this legislation, contact them
• As much information as I quoted, I did not quote the majority of the article

INRM
"No matter how I die, it was murder"

I think it might be a bit much, not sure it would pass constitutional muster.

On the other hand, Joe Lieberman is a Jew, so I guess we have to go along with it.

 

[hgc]

Gee, I don't recall the ever sniveling Lieberman, et al rushing to pass new laws when traitors in the White House leaked the name of an undercover US intelligence operative to the press for political purposes.

 

[babycondor]

The so-called SHIELD Act (Securing Human Intelligence and Enforcing Lawful Dissemination)

Newspeak for the 21st century.

Securing Human Intelligence? Not just U.S. Intelligence? The intelligence of the entire Human race is now to be secured! Wow.

Enforcing Lawful Dissemination? Don't they mean Preventing Unlawful Dissemination? But I guess as an acronym, SHIPUD doesn't have quite the same James Bond-esque overtone of virtue that SHIELD does.

It would be funny, if it weren't so chillingly Orwellian.

 

[elbe]

Newspeak for the 21st century.

Securing Human Intelligence? Not just U.S. Intelligence? The intelligence of the entire Human race is now to be secured! Wow.

Enforcing Lawful Dissemination? Don't they mean Preventing Unlawful Dissemination? But I guess as an acronym, SHIPUD doesn't have quite the same James Bond-esque overtone of virtue that SHIELD does.

It would be funny, if it weren't so chillingly Orwellian.

Newspeak? Seriously? That's doubleplussilly.

It's really just evidence of someone choosing a word to make the acronym from and working backwards. It's a lot like that game "acrophobia" I used to play in the 90s.

 

[theprestige]

Newspeak for the 21st century.

Securing Human Intelligence? Not just U.S. Intelligence? The intelligence of the entire Human race is now to be secured! Wow.

Enforcing Lawful Dissemination? Don't they mean Preventing Unlawful Dissemination? But I guess as an acronym, SHIPUD doesn't have quite the same James Bond-esque overtone of virtue that SHIELD does.

It would be funny, if it weren't so chillingly Orwellian.

"Human intelligence", or HUMINT, is a category of intelligence source. Another category is SIGINT--signal intelligence. Still a third category is IMINT--imagery intelligence.

IMINT typically involves reconnaissance ("spy") satellites using cameras and other imaging devices to gather information.

SIGINT uses radio receivers, signal-processing gear, and codebreaking and pattern-recognition techniques to learn as much as possible from radio transmissions (other types of signaling technology may also be featured).

HUMINT is the good, old-fashioned practice of using human beings to gather information. You may have heard of it: an undercover agent, or a double agent, or a mole, infiltrates an organization and gather as much information as possible.

The law is about securing the human beings whose role it is to gather intelligence.

If you want to be outraged, may I suggest considering the bigotry that is our shameful lack of SSIELD and SIIELD legislation. Think of the poor, defenseless satellites and radio antennas!

 

[Peephole]

I guess we'll finally see the Bush adminstration prosecuted when this law gets passed then.

Spoiler:

No, we won't.

 

[TragicMonkey]

First he didn't like video games, and now he doesn't like Wikileaks. Does Lieberman actually have someone find out what's cool then set out to fight it? Also, my god that man's ugly. I mean, I know most politicians are not models, but there are limits. Frog-like politicians I can tolerate. But he looks like a frog that's been partially melted, perhaps by ignited swamp gases.

 

[Skeptic Ginger]

Newspeak? Seriously? That's doubleplussilly.

It's really just evidence of someone choosing a word to make the acronym from and working backwards. It's a lot like that game "acrophobia" I used to play in the 90s.

USA PATRIOT Act:

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

 

[deepatrax]

I guess we'll finally see the Bush adminstration prosecuted when this law gets passed then.

Spoiler:

No, we won't.

for what?

 

[tyr_13]

I guess we'll finally see the Bush adminstration prosecuted when this law gets passed then.

Spoiler:

No, we won't.

Leaking such information is already a crime. This proposed legislation is aimed at the publishing of it. At any rate, you can't be prosecuted for committing an act that wasn't a crime when you committed it.

 

[INRM]

Spindrift,

I think it might be a bit much, not sure it would pass constitutional muster.

Maybe in the past, but modern day, they'd approve it. Look at the Holder vs Humanitarian Law Project.


HGC,

Gee, I don't recall the ever sniveling Lieberman, et al rushing to pass new laws when traitors in the White House leaked the name of an undercover US intelligence operative to the press for political purposes.

Of course not...


Baby Condor,

Newspeak for the 21st century.

Yup

Enforcing Lawful Dissemination? Don't they mean Preventing Unlawful Dissemination?

Of course...


INRM
"In closing, I want to remind you all that no matter how I die, it was murder"

 

[Spindrift]

Spindrift,



Maybe in the past, but modern day, they'd approve it. Look at the Holder vs Humanitarian Law Project.

Holder vs HLP was a very narrow ruling and did not involve freedom of the press, so until it actually gets to the Supreme Court, I don't know how they'd rule.

 

[INRM]

Spindrift,

I thought it went to the Supreme Court

 

[Skeptic Ginger]

SCOTUS Wiki Holder vs Humanitarian Law Project

The ruling absolutely sucks. This SCOTUS sucks. It's so right wing they would have likely ruled McCarthy was great if it came up.

 

[Upchurch]

I think it might be a bit much, not sure it would pass constitutional muster.

Agreed. No way this could survive a court challenge.

 

[JoelKatz]

Unfortunately, it's not well-settled law that this would exceed Congress' power under the First Amendment. It's well-settled that it cannot be done absent authority from Congress (New York Times v. United States, the Pentagon Papers case). It's entirely possible, though it would be very unfortunate if it happened, that courts might hold that this is a narrow enough restriction to survive a facial challenge. Let's hope it doesn't get that far.

 

[WildCat]

Unfortunately, it's not well-settled law that this would exceed Congress' power under the First Amendment. It's well-settled that it cannot be done absent authority from Congress (New York Times v. United States, the Pentagon Papers case).

I'm not so sure about this any more. In the Pentagon Papers case, the SCOTUS only ruled that there couldn't be a prior restraint preventing the NYT from publishing them. It didn't say the NYT couldn't be prosecuted after publishing them.

 

[Beerina]

SCOTUS Wiki Holder vs Humanitarian Law Project

The ruling absolutely sucks. This SCOTUS sucks. It's so right wing they would have likely ruled McCarthy was great if it came up.

Under further questioning, however, [Solicitor General Elena Kagan] talked herself into some trouble in arguing that the law might make it a criminal act for a blacklisted group even to hire a lawyer to put its views before a U.S. court, or to use an American as its advocate for peaceful aims before the United Nations.

Interesting. The judges were trying to delineate the difference between knowing assistance to a blacklisted terrorist group's terrorist activities and not.


ETA: They ruled you can still say anything you want in support of a declared terrorist organization. You just cannot do so under their coordination. I can stand on a corner and point to a house and say, "You can buy cocaine in there." I just can't do so if I am working with them, because then I am part of the cocaine selling.

I don't know if even that is a good idea, given the difficulties of separating out "material support" from opinion. Normally speech always gets the benefit of the doubt, not the other way around.

 

[INRM]

Beerina,

Under further questioning, however, [Solicitor General Elena Kagan] talked herself into some trouble in arguing that the law might make it a criminal act for a blacklisted group even to hire a lawyer to put its views before a U.S. court, or to use an American as its advocate for peaceful aims before the United Nations.

And this isn't dangerous? Under that logic they could label anybody they want as a terrorist as deprive them to all right of due process or judicial review.


INRM
"In closing, I want to remind you all that no matter how I die, it was murder."
SNL Parody of Julian Assange
December 4, 2010