wikileaks: shooting themselves in the foot

Increasingly, attention is turning to the whistle-blower who is accused of turning over the diplomatic cables to Wikileaks. Glenn Greenwald has a lengthy article documenting Manning’s current treatment in military detention: The inhumane conditions of Bradley Manning’s detention. While Manning is not a civilian and is subject to the Military Code, holding him in solitary confinement for months at a time is not humane treatment, particularly for a non-violent, cooperative prisoner.

Bradley Manning, the 22-year-old U.S. Army Private accused of leaking classified documents to WikiLeaks, has never been convicted of that crime, nor of any other crime. Despite that, he has been detained at the U.S. Marine brig in Quantico, Virginia for five months — and for two months before that in a military jail in Kuwait — under conditions that constitute cruel and inhumane treatment and, by the standards of many nations, even torture. Interviews with several people directly familiar with the conditions of Manning’s detention, ultimately including a Quantico brig official (Lt. Brian Villiard) who confirmed much of what they conveyed, establishes that the accused leaker is subjected to detention conditions likely to create long-term psychological injuries.

This kind of treatment of prisoners, especially of one who hasn’t even been formally charged, much less convicted, will have wide repercussions as well. Greenwald goes on to note:

The inhumane treatment of Manning may have international implications as well. There are multiple proceedings now pending in the European Union Human Rights Court, brought by “War on Terror” detainees contesting their extradition to the U.S. on the ground that the conditions under which they likely will be held — particularly prolonged solitary confinement — violate the European Convention on Human Rights, which (along with the Convention Against Torture) bars EU states from extraditing anyone to any nation where there is a real risk of inhumane and degrading treatment. The European Court of Human Rights has in the past found detention conditions violative of those rights (in Bulgaria) where “the [detainee] spent 23 hours a day alone in his cell; had limited interaction with other prisoners; and was only allowed two visits per month.

In particular, if I were on Assange’s legal defense team and fighting extradition to the U.S., this is exactly the line of argument I would follow to persuade British (or Swedish) courts to refuse extradition requests on the grounds of personal danger. We can add to this the explicit death threats that have been made toward Assange by members of our own government.

In a recent development, the House has suddenly balked at passing a whistleblower’s protection bill twelve years in the making: Whistleblower protection bill hits sudden stop in Congress. Both the incoming elected Republicans and Wikileaks appear to be factors.

The irony here is that as legitimate avenues for exposing not classified information but valid, documented concerns about government operations are blocked, the more attractive routes such as WikiLeaks become.

The U.S. government has made no bones about wanting to get ahold of Assange, somehow, by hook or by crook. In this NY Times article U.S. Tries to Build Case for Conspiracy by WikiLeaks, we see that

Since WikiLeaks began making public large caches of classified United States government documents this year, Justice Department officials have been struggling to come up with a way to charge Mr. Assange with a crime. Among other things, they have studied several statutes that criminalize the dissemination of restricted information under certain circumstances, including the Espionage Act of 1917 and the Computer Fraud and Abuse Act of 1986.

But while prosecutors have used such laws to go after leakers and hackers, they have never successfully prosecuted recipients of leaked information for passing it on to others — an activity that can fall under the First Amendment’s strong protections of speech and press freedoms.

I will briefly note the irony inherent in the Justice department’s searching through Wikileaks’ own documents to try and prove conspiracy, rather than journalistic intentions on Assange’s part. (At least one other possible instance of the government using Wikileaks information is described here: Wikileaks Blows The Whistle on BP.) In any case, at present the department appears to be looking for a way to remove Wikileaks from journalistic protection:

By bringing a case against Mr. Assange as a conspirator to Private Manning’s leak, the government would not have to confront awkward questions about why it is not also prosecuting traditional news organizations or investigative journalists who also disclose information the government says should be kept secret — including The New York Times, which also published some documents originally obtained by WikiLeaks.

How long that angle of attack will last, no one knows. Unsurprisingly, a number of journalists are not particularly reassured by this. Greenwald, again, puts it bluntly in Attempts to prosecute WikiLeaks endanger press freedoms:

To criminalize what WikiLeaks is doing is, by definition, to criminalize the defining attribute of investigative journalism. That, to be sure, is a feature, not a bug, of the Obama administration’s efforts. Just two days ago, The New York Times’ James Risen wrote a story disclosing substantial classified information about the CIA, the DEA and Afghanistan, revealing that a high-level Afghan drug trafficker being prosecuted by the U.S. was long on the payroll of the U.S.; should he be tried for espionage? I wrote in detail back in August about the dangers posed and distortions required to prosecute WikiLeaks under the Espionage Act.

Greenwald puts together an impressive list of respected journalists who point out that their own work would fall under the net that the U.S. government would cast in trying to snare Wikileaks:

The Washington Times’ neoconservative reporter Eli Lake last night wrote: “I oppose the application of the espionage statute to Assange because the same kind of prosecution would make me a criminal too.” […] The New York Times’ Eric Lichtblau and The Washington Post’s Dana Priest — both of whom won Pulitzer Prizes for publicly exposing classified programs of the Bush administration — warned that prosecuting WikiLeaks would endanger investigative journalism generally. The Denver Post editorialized that the idea of prosecuting WikiLeaks “is about the only one in recent memory that has attracted bipartisan support in Washington” but “is ill-conceived and fraught with problems” and that “acquiring and publishing information is at the heart of the definition of a free press, which has substantial First Amendment protections.” Even the government-revering Washington Post Editorial Page came out in opposition to prosecuting WikiLeaks on Sunday, recognizing that “the government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets” and that “doing so would criminalize the exchange of information and put at risk responsible media organizations.”

Paralleling this question of whether Wikileaks comes under the free speech protection of the press as recognized by most Western democracies is whether the actions of Anonymous and other pro-Wikileaks online organizations that have targeted corporations constitute civil disobedience. Of course, there’s a long and tangled legal history of protecting civil disobedience and considering it akin to vandalism, illegal activities and so on. This question is brought up in Are the Cyber Battles with the Enemies of WikiLeaks the New Civil Disobedience?. In particular, consider first that

Several corporations bowed to political pressure and cut off services to Wikileaks. It has not yet been proven that the organization broke any laws, but Paypal, Mastercard and others decided to stop allowing citizens to show their support for the organization by giving them money. This is a clear violation of limiting a form of speech — the Supreme Court ruled this year that political donations are a form of free speech, at least when corporations are doing the donating.

and that the retaliation chosen has a clear real-world parallel:

Anonymous […] decided to render, among others, Mastercard’s website unusable. This does not mean that credit card data was stolen, or that people were unable to use their Mastercards for purchases. It means that if you went to, you got a message that the website was unavailable.

So, the question: is this a legitimate form of civil disobedience? […] Many, myself included, consider DDoS [the means by which a website is made unusable] in this context to be much like a sit-in in the offline world. The point of a sit-in is to render a building/room/service unusable for a temporary period of time. Sit-ins aren’t “legal” — you get arrested, and most activists who participate in them know this ahead of time and prepare for it.

It’s a well nuanced essay, for instance acknowledging the “chaos enthusiasts” class of Anonymous as well as the more apparently politically minded “hactivists.”

In a larger sense, it seems to me many of these issues are not new at all. The novelty factor is the online realm in which they are taking place. One that governments (and states) around the world fear they have no control over.

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