04 December 2010

Preventing the Next Wikileaks Episode.

The blogosphere is full these days with essays by distinguished “First Amendment Lawyers”. (A code phrase: it almost always means lawyers who formerly or currently earned their living by representing publishers.) These distinguished authors, referring to the Pentagon Papers case, proclaim with certainty that once the Wiki documents were leaked, the government was helpless to act because all prior restraints on publication are a violation of the First Amendment, and, further, any resort by the government to the Espionage Act to discourage or prevent leaks was fruitless because the Act is “presumably unconstitutional.”

All wrong. I understand the opinions in that case were lengthy, but c’mon guys, if you are going to rely on the case, ya really oughta first read it.

First, the Pentagon Papers case does not say that all prior restraint is barred by the First Amendment. To the contrary, the Court indicated quite clearly it would uphold a prior restraint if the government met a heavy burden of proof, which it failed to meet in that particular case. The Court's per curiam opinion is only one paragraph long but unambiguous in this regard. The Court upheld the lower courts' denial of the government's application for a pre-publication restraint, writing:

"The Government ...carries a heavy burden of showing justification for the imposition of such a restraint. ...[The lower courts] held that the Government had not met that burden. We agree."

That is all the Court held, by a vote of 6-3. There were nine separate opinions, but only one binding decision. That is it.

Second, when one reads all the opinions, it becomes readily apparent that a majority of the Justices were clearly of the view that though the government had not carried it’s burden so as to entitle it to a pre-publication injunction, the government was free to go ahead and prosecute the Times under the Espionage Act. Congress passed the Act as part of a criminal code that permitted the government to bring criminal prosecutions and that was the remedy Congress intended the Executive Branch to employ. Indeed, it is clear that some of the Justices almost relished such a prosecution. Whether a criminal prosecution of the New York Times was then, or is now, politically prudent is a very different question and it is for the Executive Branch to decide, not the Judiciary.

So, how do we stop the next Wikileaks? The other day my son asked me what I thought of the current mess. I quote here my email to him on that subject:

"Rob:

First, they ought to find the guy who leaked this stuff and hang him up by his testicles and leave him there til the crows pick his flesh clean.

Second, they ought to fire every person in the U.S. intelligence structure who had anything to do with the government's post 9/11 re-design of its computer network that enabled every Pfc intelligence-puke to see everything the country's military and diplomatic corps had to say on any subject. I cannot believe the horrendous design and supervisory incompetence. Depressing. The government ought to turn over its intelligence, military, diplomatic, and other networks to Google to design and manage.

Third, as to the newspapers, I think once the cat was out of the bag, they had little choice. Wiki gave the stuff to the Guardian in the UK, and Guardian gave it to four or five papers. As I understand it, this time around the Times gave the government advance notice of what it had, got their input, redacted the real dangerous stuff, and apparently encouraged the others to do the same, and so far, it seems they have.

[Last time around, the Times played it cute and Justice Burger was enraged: "The New York Times clandestinely devoted a period of three months to examining the 47 volumes that came into its unauthorized possession. Once it had begun publication of material, ...[the Times claimed that] every deferral or delay, by restraint or otherwise, was abhorrent and was to be deemed violative of the First Amendment and of the public's 'right immediately to know.' Yet that newspaper stood before us at oral argument and professed criticism of the Government for not lodging its protest earlier than by a Monday telegram following the initial Sunday publication." Yikes.]

All in all, a terrible black eye for the U.S. Shows us up to be bumbling fools and hurts our diplomatic efforts for years to come. Will hurt the war on terror. Will likely impair the effort to control Iran, North Korea, reach an arms deal with Russia, etc, etc. Suggests the U.S. is an empire in decline, too big, too stupid, too blundering to manage its affairs.”

Isn’t that enough? Do we really need “First Amendment lawyers” to pile on and take it upon themselves to repeal the Espionage Act, which, in the appropriate circumstances, may prove vital to our national defense?"