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Tuesday, December 07, 2010

Feinstein on Wikileaks: It's Only Journalism if I Say it's Journalism

Sen. Diane Feinstein in the Wall Street Journal:

FeinsteinWhen WikiLeaks founder Julian Assange released his latest document trove -- more than 250,000 secret State Department cables -- he intentionally harmed the U.S. government. The release of these documents damages our national interests and puts innocent lives at risk. He should be vigorously prosecuted for espionage.

The law Mr. Assange continues to violate is the Espionage Act of 1917. That law makes it a felony for an unauthorized person to possess or transmit "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."

The Espionage Act also makes it a felony to fail to return such materials to the U.S. government. Importantly, the courts have held that "information relating to the national defense" applies to both classified and unclassified material. Each violation is punishable by up to 10 years in prison.

No doubt aware of this law, and despite firm warnings, Mr. Assange went ahead and released the cables on Nov. 28.

Glenn Greenwald responds:

...Legal experts overwhelmingly believe that any such prosecution under that law would be extremely difficult and "extremely dangerous," but that's of no concern to the Surveillance-State-protecting, Iraq-War-supporting, defense-contractor-plutocrat:  the "liberal" Democratic Senator from California.  To argue this, she invokes the most tired and simple-minded platitude beloved by all those who want to curtail basic press and speech freedoms:  "Just as the First Amendment is not a license to yell 'Fire!' in a crowded theater, it is also not a license to jeopardize national security."

Every line of pro-prosecution rationale cited by Feinstein applies equally to journalists -- including especially the newspapers from around the world which are publishing all of the same diplomatic cables as WikiLeaks is, and which are publishing them before WikiLeaks even does.   How can it possibly be that WikiLeaks should be prosecuted for espionage, but not The New York Times, or The Guardian, or any other newspaper that publishes these cables?

In 2006, Alberto Gonzales threatened to prosecute The New York Times for revealing Bush's illegal NSA program, and The Weekly Standard ran numerous articles calling for the prosecution of NYT journalists and editors under the Espionage Act for having done so.  Bill Bennett demanded the prosecution of The Washington Post's Dana Priest for revealing the CIA black sites.  How can all the Good Democrats who condemned that mentality possibly not condemn Dianne Feinstein and those who think like her?  What's the difference?

For the record, you do get to yell "Fire!" in a crowded theater when there's actually a fire in that crowded theater. And you get to do it without being charged with arson. The only distinction that Feinstein makes that would separate Assange from a journalist is her say-so: "Mr. Assange claims to be a journalist and would no doubt rely on the First Amendment to defend his actions. But he is no journalist: He is an agitator intent on damaging our government, whose policies he happens to disagree with, regardless of who gets hurt." First Amendment guarantees of a free press don't apply -- so long as a sitting senator arbitrarily declares you "not a journalist."

Think what you like about Wikileaks and what they do, but this is a dangerous and irresponsible argument.

UPDATE: Joe Lieberman jumps on the "let's ignore the First Amendment" bandwagon and takes Feinstein's argument to the next logical step, suggesting that media outlets like the New York Times could be prosecuted for covering details of the leaks.

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