The Constitutional Rubicon of an Assange Prosecution
The Constitutional Rubicon of an Assange Prosecution
By Elizabeth Goitein Tuesday, May 9, 2017
"If you were tuning in and out of FBI Director James Comey’s hearing before the House Intelligence Committee last Wednesday, you probably got an earful about Comey’s public statements on Clinton’s use of a private e-mail server, and you may have heard his staunch defense of Section 702 of FISA. But you might have missed the moment in which Comey and Senator Ben Sasse (R-NE) threatened to topple one of the longstanding pillars of journalistic freedom.
That moment came when Sasse asked Comey why Julian Assange has not been charged with a crime in connection with WikiLeaks’ publication of classified information. (Sasse was at it again during yesterday’s hearing on the Russia investigation, quizzing former DNI Clapper about Assange’s actions.) After refusing to answer whether charges were pending, Comey effectively confirmed that they were: “He hasn’t been apprehended because he’s inside the Ecuadorian embassy in London.” He also said that “WikiLeaks is an important focus of our attention.”
No one has ever been prosecuted for publishing classified information obtained through a leak. Although some parts of the Espionage Act would appear, on their face, to allow prosecution in such cases, Comey acknowledged that “the Department of Justice’s view has been [that] newsgathering and legitimate news reporting is not covered, is not going to be investigated or prosecuted as a criminal act.” The Department to date has drawn a clear line between government officials who leak classified information, and media outlets that publish it. “Our focus is and should be on the leakers, not those [who] are obtaining it as part of legitimate newsgathering.”
One might posit a distinction between those who passively receive classified information and those who actively solicit leaks, as WikiLeaks is reported to do. (Obama’s Department of Justice flirted with that approach: in an affidavit seeking to obtain e-mails between Fox reporter James Rosen and a State Department source who was under investigation for leaking classified information, the Department accused Rosen of conspiring to violate the Espionage Act.) But Comey was not making that distinction. Senator Sasse asked him whether “American journalists [who] court and solicit [classified] information” have violated the law, and Comey responded that the Department of Justice would not prosecute such activity.
So why, in Comey’s mind, is it permissible to bring charges against Assange? He explained his reasoning as follows..."
With links: https://www.justsecurity.org/40672/constitutional-rubicon-assange-prosecutio...
Elizabeth Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program. Before joining the Brennan Center, Ms. Goitein served as counsel to Sen. Russ Feingold and as a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice.
On Tue, May 9, 2017 at 1:14 PM, Razer <g2s@riseup.net> wrote:
https://www.justsecurity.org/40672/constitutional-rubicon-assange-prosecutio... So why, in Comey’s mind, is it permissible to bring charges against Assange? He explained his reasoning as follows..."
https://en.wikipedia.org/wiki/Pornography#Legal_status https://en.wikipedia.org/wiki/Larry_Flynt#Legal_battles https://en.wikipedia.org/wiki/Pornography_in_the_United_States "Porn", of essentially all types, in the US at least, excluding child / murder / non-consent varieties, is legal First Amendment. Therefore, "intel porn", to date not even resulting in same above, is legal. In fact, US intel porn has documented the illegal opposite by the actors... willful "Collateral" Murder, among other murder, rape by govt employee warfighters while in uniform, complicitous, conspiritous, illegal and non-consensual actions by government, spying, hacking, theft, etc. Perhaps US govt can go get fucked raw in film porn, be stupid and catch disease outed in tabloid porn, and wither and die in the news porn. All legal ;) "Wikileaks..." "is simply about releasing classified information to damage the United States of America." Two faced... look at US releasing to "damage" other countries, alter relative positions, foment issues, even lying IQ1 WMD, etc. "call us before they publish classified information" "is there anything about this that’s going to... jeopardize government" "media outlets that work in partnership with the U.S. government and are willing to self-censor based on official claims... are journalists." https://en.wikipedia.org/wiki/Prior_restraint Prior Restraint... just another tool government uses to keep its, and its favors... power, secrets and control over others. Also secret courts, etc. And... "FIRE! FIRE! FIRE!" Panic? Really? Whatever. Instead of foisting P.R., teach effective p2p emergency situation management techniques to everyone.
From: Razer <g2s@riseup.net>
With links: https://www.justsecurity.org/40672/constitutional-rubicon-assange-prosecutio...
Elizabeth Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program. Before joining the Brennan Center, Ms. Goitein served as counsel to Sen. Russ Feingold and as a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice.
From that article: "And if they knowingly print information that presents a “clear and present danger” to public safety—the equivalent of incitement, or of yelling “fire” in a crowded theater—they could presumably be prosecuted (although no such prosecution has ever taken place)." [end of quote] No, the "clear and present danger" test https://en.wikipedia.org/wiki/Clear_and_present_danger , to the extent it had any validity at all, was overturned in 1969 by Brandenburg v. Ohio. https://en.wikipedia.org/wiki/Brandenburg_v._Ohio "The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation. The majority opinion was per curiam (issued from the Court as an institution rather than as authored and signed by an individual justice). The earlier draft had originally been prepared by Justice Abe Fortas before he was forced to resign in the midst of an ethics scandal, and would have included a modified version of the clear and present danger test. In finalizing the draft, Justice Brennan eliminated all references to it, substituting instead the "imminent lawless action" language.[10] Justices Black and Douglas concurred separately."
As stated in the https://en.wikipedia.org/wiki/Clear_and_present_danger "Antiwar protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. In the 1919 case Schenck v. United States, the Supreme Court held that an antiwar activist did not have a First Amendment right to advocate draft resistance.[3][4] In his majority opinion, Justice Holmes introduced the clear and present danger test, which would become an important concept in First Amendment law; but the Schenck decision did not formally adopt the test.[3] Holmes later wrote that he intended the clear and present danger test to refine, not replace, the bad tendency test.[5][6] Although sometimes mentioned in subsequent rulings, the clear and present danger test was never endorsed by the Supreme Court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech. Jim Bell
On 05/09/2017 03:00 PM, jim bell wrote:
*From:* Razer <g2s@riseup.net>
With links: https://www.justsecurity.org/40672/constitutional-rubicon-assange-prosecutio...
Elizabeth Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program. Before joining the Brennan Center, Ms. Goitein served as counsel to Sen. Russ Feingold and as a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice.
From that article:
"And if they knowingly print information that presents a “clear and present danger” to public safety—the equivalent of incitement, or of yelling “fire” in a crowded theater—they could presumably be prosecuted <http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2959&context=journal_articles> (although no such prosecution has ever taken place)." [end of quote]
No, the "clear and present danger" test https://en.wikipedia.org/wiki/Clear_and_present_danger , to the extent it had any validity at all, was overturned in 1969 by Brandenburg v. Ohio. https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
"The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation. The majority opinion was /per curiam <https://en.wikipedia.org/wiki/Per_curiam>/ (issued from the Court as an institution rather than as authored and signed by an individual justice). The earlier draft had originally been prepared by Justice Abe Fortas <https://en.wikipedia.org/wiki/Abe_Fortas> before he was forced to resign in the midst of an ethics scandal, and would have included a modified version of the clear and present danger <https://en.wikipedia.org/wiki/Clear_and_present_danger> test. In finalizing the draft, Justice Brennan eliminated all references to it, substituting instead the "imminent lawless action" language.^[10] <https://en.wikipedia.org/wiki/Brandenburg_v._Ohio#cite_note-10> Justices Black and Douglas concurred separately."
As stated in the https://en.wikipedia.org/wiki/Clear_and_present_danger
"Antiwar protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. In the 1919 case /Schenck v. United States <https://en.wikipedia.org/wiki/Schenck_v._United_States>/, the Supreme Court held that an antiwar activist did not have a First Amendment right to advocate draft resistance <https://en.wikipedia.org/wiki/Draft_resistance>.^[3] <https://en.wikipedia.org/wiki/Clear_and_present_danger#cite_note-Killian.2C_p_1093-3> ^[4] <https://en.wikipedia.org/wiki/Clear_and_present_danger#cite_note-4> In his majority opinion, Justice Holmes <https://en.wikipedia.org/wiki/Oliver_Wendell_Holmes,_Jr.> introduced the clear and present danger test, which would become an important concept in First Amendment law; but the /Schenck/ decision did not formally adopt the test.^[3] <https://en.wikipedia.org/wiki/Clear_and_present_danger#cite_note-Killian.2C_p_1093-3> Holmes later wrote that he intended the clear and present danger test to refine, not replace, the bad tendency test.^[5] <https://en.wikipedia.org/wiki/Clear_and_present_danger#cite_note-Dunlap-5> ^[6] <https://en.wikipedia.org/wiki/Clear_and_present_danger#cite_note-6> Although sometimes mentioned in subsequent rulings, the clear and present danger test was never endorsed by the Supreme Court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech.
Jim Bell
The Espionage act assumes that "a clear and present danger" would be the reason for the charges, and the test for it would be of a different sort than crying FIRE in a crowded theater or an antiwar protest scenario, because, as seen with the vilification of Phillip Agee, they claim it causes immediate danger to national security intelligence operations and personnel. Not hypothetical or potential danger. If you look at the page it has a link to the author's twitter. If you use twitter you might want to contact her for clarification. Rr
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Razer