Ellsberg: Losing 1st Amendment Reverses War of Independence

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    • #502339
      ozoneman
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    • #502352
      soryang
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      to support the contention, that Assange is being prosecuted for “simply receiving classified information.”

      I just read the superseding indictment, it seems he is charged with a lot of “inchoate crimes” such aiding, abetting, conspiracy, etc., where Assange played an alleged active role, in encouraging, inducing, and facilitating, the act of obtaining classified information by committing illegal acts by persons not privileged to do so. For example, is Chelsea Manning a journalist? One can admire courage as a whistleblower but it doesn’t fall within the core protection of the first amendment. So there is a gray zone, or penumbra, where Assange is encouraging or assisting an unprivileged person to commit the criminal acts. I doubt if any court is going to extend the first amendment privilege to this extent. There is also the matter of Assange allegedly encouraging damage by hackers to computer systems. What is the first amendment privilege there?

      Some of the counts of the indictment may be unsupported, particularly the early ones, some may be redundant, and be dismissed for those reasons. I don’t think all of the counts involved first amendment issues.

      It’s one thing if some unrelated party illegally brings classified info to a journalist office of the blue, it’s another thing where the journalist actively solicits or encourages violations of classified regulations or computer integrity laws, and then discusses and actively assists the person or persons who carry out the offenses. I think this is why the indictment has been superseded to cure its earlier omissions and weaknesses.

      Ellsberg is challenging the government to indict him as well for possessing some of the same documents. In his case, it might be that he is a journalist himself, and that reception of the documents from another unaccompanied by any solicitation to break other laws other than the fact that he is “a person unauthorized to receive” them, is protected under the first amendment.

      I’m glad Ellsberg mentions the charges concerning the Pentagon papers against him failed because of the government’s flagrant abuse of its powers during the investigation, not because anything he did was protected by the first amendment. I can see why he would want to put himself in court to get a black letter ruling on the first amendment privilege. I don’t know that such a decision would go far enough to protect Julian Assange in the circumstances alleged in the superseding indictment.

      I wonder if flagrant government misconduct in Assange’s case might be a productive avenue in a motion to dismiss the charges.

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      • #502354
        ozoneman
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        E.g., whether Assange encouraged and assisted the procurement of the “collateral murder” video.

        It couldn’t be worse than Ellsberg directly stealing the Pentagon papers, and tried under the Espionage Act. Many similarities, and the eventual outcome could be the same as well.

        And from a joint letter written two months ago:

        WASHINGTON — The New York Times and four European news organizations called on the United States government on Monday to drop its charges against Julian Assange, the WikiLeaks founder, for obtaining and publishing classified diplomatic and military secrets.

        In a joint open letter, The Times, The Guardian, Le Monde, Der Spiegel and El País said the prosecution of Mr. Assange under the Espionage Act “sets a dangerous precedent” that threatened to undermine the First Amendment and the freedom of the press.

        “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists,” the letter said. “If that work is criminalized, our public discourse and our democracies are made significantly weaker.”

        https://www.nytimes.com/2022/11/28/us/politics/julian-assange-wikileaks-charges.html

        • #502356
          soryang
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          …I think it was rejected in the Bradley Manning case. So if you look at the counts related to Manning, the press opinion is that Assange should get the benefit of the necessity defense, although it was rejected in Manning’s case. It’s arguable. I don’t have an objection to it. I think in the case of a conspiracy count, which is a specific intent crime, the nature of the overt acts encouraged or assisted, may make a difference. I wondered from the beginning what was the evidence of these acts? If they are in the nature of active overt assistance, the courts might not be inclined to allow the shield of the first amendment, be turned into a sword, that allows free ranging exploitation of classified files.

          The “gross negligence” count(s) also hurt Assange, if they can be proven. My experience has been that if the majority of counts are untenable for constitutional reasons or otherwise, say failure of proof, the prosecutors always put a couple a counts in there, ie attacking computer systems, and gross negligence, that are more likely to fly in court. I think government misconduct, spying on Assange and his attorneys, is bad enough to throw the whole thing out. I would just make that political rather than legal decision, that exposure of the underlying circumstances surrounding Assange’s investigation is too damaging to the government to expose in court. If not, I guess a lot of the trial, maybe all of it, will be closed to the public. That’s so embarrassing, I would want to drop the case if I were prosecutor. The administration is just trying to force this through, unwisely.

          Ellsberg’s case was thrown out for government misconduct, period. The first amendment issue wasn’t addressed. That’s why he wants another go round. The difference in his current challenge to be prosecuted is that his case would be “on all fours” for a first amendment challenge. That is a journalist to journalist transfer of classified documents. Assange’s case is more complicated by his alleged active involvement of encouraging illegal and advising illegal acts to be done by non-journalists to get classified information.

          (on edit- I had to put gross negligence in quotes, because all of the crimes alleged actually require a knowing mind, or specific intent. I said gross negligence, because these are the counts referring to classified files which included the names of sources, who might be subject to retaliation or harm when their names are disclosed. Deliberately exposing such files because one thinks they have a first amendment privilege or defensible reason for doing so without appropriate redaction is at best grossly irresponsible. I think such disclosures in Assange’s “insurance scheme” disclosures are going to be subject to strict scrutiny and are less likely to be considered defensible or privileged acts.)

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    • #502384
      ozoneman
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      I appreciate what he did, and wish him luck.

    • #502513
      ozoneman
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      Adding this tribunal video for depth and breadth (about 45 minutes):

      Free Julian Assange: Noam Chomsky, Dan Ellsberg & Jeremy Corbyn Lead Call at Belmarsh Tribunal

      • #502527
        soryang
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        • Total Posts: 2,631

        …was both informative and disturbing. I enjoyed listening to Betty Medsger’s presentation as well on the FBI break in and COINTELPRO disclosures. I think the presentations clarified some of the distinctions among whistleblowers, hackers (burglars) with a cause, and journalists. Medsger is okay with it all. That’s okay, it’s a legitimate political position. The law until it’s changed will make distinctions. Obama commuted Manning’s court martial sentence at about six years. Allegedly, that was to make his prison term commensurate with that of other whistle blowers. Assange has had his liberty restricted for over ten years, almost seven in the embassy, and four in Belmarsh. The US should just drop the case.

        惑世誣民 혹세무민

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