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WikiLeaks says that their software allows a leaker to upload information to them with complete anonymity. WikiLeaks’ editor Julian Assange has repeatedly said that he does not know if Private Bradley Manning is, in fact, the leaker of any particular set of U.S. government documents. Contrary to the assumption made by CNN’s correspondent Jennifer Yellin, Assange would not go to jail in a Judy Miller-like fashion to protect his source, if he never knew who his source was.
The federal conspiracy statute is Title 18 US Code 371; it provides this pertinent part:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both
A conspiracy requires an agreement between two people, a partnership in crime. Ianelli v. US, 420 US 770 (1975). In US v. Valigura, 99-5005 US Ct of Appeals for the Armed Forces (2000), the Court of Appeals found that “If there is no actual agreement or ‘meeting of the minds’ there is no conspiracy.”
By the same token, how could Assange ever form a meeting of the minds with someone he has never met? (By met, I mean in person, over the phone, in cyberspace, or any other way.)
On the other hand, Adrian Lamo claims that the chat logs of instant messages he allegedly had with Manning contain classified information. Wired.com’s senior editor Kevin Poulsen also claims that he spoke with Lamo; Lamo agreed with Poulsen to give Poulsen a complete and unredacted set of the chat logs, presumably with all that classified information intact, if Poulsen would drive down to Lamo’s location to collect them. Poulsen not only agreed to this, but apparently made the trip thereby committing an affirmative act in furtherance of the agreement.
Now here’s what intrigues me: if the U.S. Department of Justice is looking at a conspiracy charge involving WikiLeaks, why isn’t it looking at a conspiracy charge against Wired.com? In the case of Wired we have: 1) two people who actually know each other, 2) an agreement to turn over classified information, and 3) an act done in furtherance of that agreement.
In the WikiLeaks case we have a website that touts do-it-yourself anonymous uploading of information which may then be published after WikiLeaks has had a chance to vet the content for authenticity. So far, there’s been no proof offered that Manning ever communicated directly with Assange — so how could they form a meeting of the minds?
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BTW, the two cases I cite above: the first one is from SCOTUS and the second from the highest Military Appeal Court (one level down from SCOTUS)
Protect the oil whores! Nazi bastards!!!!!!
The DoJ is NOT actually looking to prosecute illegalities, wherever they are found. They are looking to persecute Assange. So the premise of the post is misplaced.
Of course you’re right.
And of course it doesn’t matter.
As ECAHN has rightly pointed out to me on several occasions. There is NO rule of law anymore. NONE.
The law now is what they deem it to be.
Jullian Assange is guilty. Period. They’ll decide later about what it is he’s guilty of, and have a show trial, and a real execution. Ok, maybe they won’t take it as far as some on the right are calling and actually execute him.
Lamo and Wired are not guilty. Period. That doesn’t fit with the narrative that Jullian Assange is the bad guy, so no, Lamo (what a PERFECT NAME for such a lame ass) and Wired can’t be investigated, or even hinted at having committed a crime.
WOW.
I was typing your name as you posted I guess!
Heh. So sad to have to be sooo cynical.
What classified info was in the chat logs?
Why aren’t they investigating (Name Any White House Staff From the Last Five Administrations)-Woodward?
I still wish somebody in the media, KO or Rachel, ANYONE, would start agitating to get Woodward to take a stand on Assange. IMO it’s win/win. Maybe he’ll actually support journalism and come out in support of Assange (less likely) OR he’ll show his true hypocrisy for all to see (more likely). I think there is benefit to either outcome.
The call for Woodward to take a stand needs to be made. Loudly.
Selective enforcement based on political consideration. No rule of law! Just how Nazi bastards liked it.
Even sadder that’s it accurate.
Time to remind that I specifically asked Woodward on FDL book salon how he got so much classified info & what were the consequences of publishing it. He ignored my Q. I guess I should go to the bother of going back & finding it. If it doesn’t take long, I’ll be back with a link.
Unknown – but my understanding is Lamo has claimed that there was classified in the logs he provided and Wired has used it as their defense in not releasing all the chat logs I think – so they should be investigated based on those claims.
Here’s the link http://fdlbooksalon.com/2010/10/07/fdl-book-salon-welcomes-bob-woodward-obamas-wars/#comment-2196330 , and here’s the Q:
Bob,
I’m astonished about how much you reveal about the USG secret plans, sources & methods; almost as delicious as wikileaks. How did you get all your sources to tell you this for publication, even if not for attribution?
Good un.
And the follow up…
How is your getting secret material from sources and publishing it any different from WikiLeaks getting secret material and publishing it?
i thought it was Jessica Yellin.anyway what a tool!
Cindy’s point is quite well taken here. I would add that not only did Lamo, Wired and Poulsen
But that overt act done in furtherance was indeed the wholesale transfer of files containing the classified information. Among individuals and an organization professing to be knowledgeable and experienced in such matters and the law surrounding them.
I was hoping to provoke him into bragging to outdo Wikileaks by mentioning them in the Q. Woodward, however, has been around the block too often to fall for something as transparent as that.
Observant and well-reasoned arguments like this one persuade reasonable people our government is acting corruptly at the highest levels of power.
“Assange is a case of first impression” would be my guess as to Holder’s response, or something ‘creative’ of that nature.
The unitary executive and his/her agents and whomever he/she wishes to protect are all above the law. I am not a lawyer but I get the impression that lawyers are the last to acknowledge the impotence of the law. The Supreme Court is comical in its pretense. There is no longer a constitution to interpret or defend.
Hard for me to imagine any reasonable people have already concluded that, but you’re right.
DOH, supposed to be
Hard for me to imagine any reasonble people HAVEN’T already concluded that, but you’re right.
So confusing on when there is an edit button and when there isn’t.
Echan is right. We had a discussion this morning and I went back to think about it and how these things have timelined.
Assange is being slandered to keep anyone else for doing the same and Manning is being held because Lamo set him up.
From doing the same. (From) As in made an example of.
It most certainly is not a case of first impression as I explained here. This law is fairly established actually.
http://emptywheel.firedoglake.com/2010/12/12/the-misplaced-us-determination-to-indict-assange/
How does Rove fit into all of this?
Glen Greenwald is da bomb!
I’m not sure exactly but my suspicions are that he has led the program with the Bush/CIA connections.
and CHICKEN NOODLE NEWZ is pitiful
the corruption is so endemic,seems beyond repair
Maybe all those missing emails are in Assange’s hands…just kidding.
There is definitely something really curious about Poulsen and Lamo – with Poulsen always carrying along a narrative lionizing Lamo’s exploits in his reporting.
Maybe Rove’s the real leaker.
Just because it isn’t a case of first impression doesn’t mean that Holder won’t argue that it is. And I said “Or something else ‘creative.’
How right you are about the lawyers being the last to recognize the impotence of the law. Great points all around. Love that word, “pretense”. Yep, that’s all that’s left.
Cynthia — Another great piece of work on your part. However, I should warn you that if you keep doing this kind of stuff, you’ll end up on watch lists, be banned from flying, etc. The gubmint can’t have truth tellers galivanting around at free will.
For all those FDLers who argued that Holder’s history defending Chaquita Banana was irrelevant to his qualifications as Atty Gnrl, I’m hoping they’re rethinking it. He’s ‘defending’ the O administration (not the USG) with exactly the same degree of immorality.
http://my.firedoglake.com/rogershuler/2010/12/30/julian-assange-case-is-driven-by-a-tangled-swedish-web/
America has been dead for some time.
Why are you writing as if it is not?
Hoping to “make it big”?
Who’s the last AGUS that had any business in the slot?
Care to define “America?”
Elliot Richardson?
Or maybe Ramsey Clark
Quite a history of them, huh?
But you will remember the Obamabots who defended every O appointment after he was elected. Just a gentle reminder to those folks that the history of those who the prez appoints is very important to what you can expect from them once they get into office. As well as a strong reflection on the prez who appoints them
You’re correct. It is Jessica Yellin, not Jennifer.
My opinion is Woodward sold out to The Powers That Be shortly after Watergate. He’s just an accomplished Judith Miller in other words; reporting/publishing what his masters want.
For a lawyer to admit the impotence of the law is also to admit his/her own impotence. All lawyers are part of this silent conspiracy, because it advances their careers.
Lawyers are a protected species in most societies. A member of a bar association is also an undeclared but official officer of the Courts where he practices law.
To further maintain the illusion of the importance of the Courts and Rule of Law, the court buildings are typically the most impressive architectural structures in society, to awe and intimidate the non-lawyers.
And to complete the illusion of equal access to law and justice, indigent persons who are detained and arrested get Court-appointed lawyers. These lawyers provide the minimum service to avoid a successful appeal; thus, they mechanically go through the steps to maintain the appearance of a defense. All lawyers to some degree use psychological tactics to abuse and even assault their clients into accepting plea deal offers from the prosecutors, even if their clients insist on their innocence.
It is truly amazing to see the outpouring of financial and moral support for Julian Assange at Wikileaks and for Army Pfc. Bradley Manning. Otherwise, both of them may have had no alternative to remaining in pretrial detention indefinitely and being represented legally by the dreaded Court-appointed lawyers with their charade of justice.
I got the book today SD. Thanks! Can’t wait to get started. :)
There is torture (presumably a crime) and video evidence destroyed, investigation thereof yields zilch. This is not incompetence, it is not deliberate scuttling as directed from the top, it is the built in bias of the organization. So they’ll try to pursue a ham sandwich for national security, regardless any legal or evidential foundation, as the bias is baked in.
What was I thinking? I was bored. I took a risk and looked at the huffington post web site. I know I should be hand-slapped for it.
My question is, what does huffpo stand to gain by the torrential onslaught of attacks on both Assange and Wikileaks? Just moments ago, when I backslid and looked at their site, there were four front-page articles about it, all blasting Assange – I think they were actually borderline slander if not outright slander.
The b.s. was such brazen obfuscation of the whole Assange/Wikileaks issue, I have to ask, what does huffpo stand to gain by destroying Assange and Wikileaks?
I’m well aware that huffpo has been continually sliding rightward for the past 2-3 years (or longer), but when did they become a clone of FoxNation?
Woodward’s ONI (Office of Naval Intelligence)
What book?
Sin Patron
Those are the only two I can remember.
Got your email too. You’re welcome.
HuffPo is a real cheerleading section for Obama, his handlers and lackeys.
Fuck you, Obama
Tentative book/article title: The Law of Fraud and the Fraud of Law.
We have to walk a fine line here. The rule of law will be important in a post-capitalist society, so that it does not degenerate into a Soviet-style oligarchy. The U.S. Constitution can be a legitimate source of pride. But there is nothing to be gained by idealizing the law as it is currently practiced, or glossing over its deceptive aspects. Capitalism is fundamentally incompatible with the rule of law; it has proved to be too great a trial for the Constitution to endure. Our current legal system is essentially a fraud: it exists largely for the purpose of deceiving the public into thinking that their rights are adequately protected, when such is not actually the case. Especially, the law of fraud is itself a fraud. We see this truth in action in the foreclosure fraud “rocket docket” kangaroo courts.
What we really need here is a high-level whistleblower – someone who will do for the law what Wendell Potter (Deadly Spin) did for the public relations industry. Preferably, it should be a federal judge – ideally, a Justice of the Supreme Court, but I don’t think any of them have it in them. A federal judge needs to resign from the court system and publish a book denouncing the law as a fraud. As in Potter’s case, it would also be a way of making amends for wrongs done while working within the system. In this country, “criminal court” has come to mean “a court whose activities are criminal”, and it is time someone in a position to know from personal experience said so.
Has Manning admitted he leaked to Wikileaks? I find it preposterous he would share classified information with anyone, let alone a stranger. It would perhaps involve them in a crime for which Manning could not possibly benefit. Only if Manning is certifiable does Lamo’s story make sense.
I would also think Manning’s lawyer should file habeus corpus if only to try to control the conditions of his confinement. We may be out of judges with balls, male or female, but it’s worth a try.
A lawyer wrote this very post. She happens to be not only talented, but a tremendous human being too.
Think twice about employing such a broad brush.
Didn’t she used to be a Republican???
Sort of says all you need to know about these “Democrats” today if that is true. They’re really just Republicans without the batshit craziness.
You said,
“For a lawyer to admit the impotence of the law is also to admit his/her own impotence. All lawyers are part of this silent conspiracy, because it advances their careers.”
That statement is not only false. It’s stupid, insulting, and I deeply resent it.
The Constitution, Bill of Rights, and the Rule of Law are not impotent. They embody powerful ideas of equality and justice for all. The problem is that the Bush and Obama administrations are not only failing to enforce them, they have willfully, intentionally, and maliciously subverted them. Bush, Obama, and many members of their respective administrations, the military, CIA, and many private contractors are war criminals. The TBTF bankers are white collar criminals. Fraud no longer is considered a crime. Istead, it’s treated like a legitimate business plan.
A hell of a lot of lawyers, including me, have laid their careers on the line representing unpopular defendants and they’ve saved lives, salvaged lives, forced police and prosecutors to do their jobs, kept the system honest, and made a big difference. Yet, you dare insult us.
~~~Edited by Moderator. Disagree without being disagreeable~~~!
I could see Manning or someone like him leaking classified information. All I’ve read or heard about him indicates to me he is a genuine patriot, interested in what is right, and someone like that would be prime candidates for leaking info if they thought it was covering up some serious wrongdoing.
This Is Kevin Poulsen.
Poulsen and Lamo are birds of a feather.
They have a history . . . back to ’01 or earlier.
How Manning (if he IS the leaker) got drawn into them will be interesting to learn . . . Lamo has spun several different versions.
But when two of the world’s most notorious, and perhaps proficient, hackers get together . . . it causes me to wonder what’s afoot.
Did they suck Manning in?
Who really initiated first contact between Lamo and Manning and why?
Are there personal relationship issues at hand here the three?
At what point does wikileaks and Assange enter the Manning/Lamo/Poulsen trio’s arc?
My humble guess is Lamo/Poulsen are stooges for CIA and were recruited to pursue Assange/Wikileaks in any manner possible.
How Manning got into the loop, as I said, will be REAL interesting to learn.
Great read Ms. Kouril, thanks.
Wired didn’t release the information intending that it get into foreign hands, yeah? So there’s no theory that can support the underlying offense. (contra Assange, where the idea is that Assange and Manning conspired to release info knowing that it would be to America’s detriment).
Easy question, easy answer.
Great work LHP! ;)
LS
I’ve said it here before, but it bears repeating. Manning is in solitary because the government does not believe there is enough evidence to convict him. People confess to crimes they haven’t committed on a regular basis and the “evidence” is that which the government obtained from Lamo. If the government’s case wasn’t built on sand and if Manning was cooperating he would be in the trial phase already.
I believe so. Never been impressed by Arianna.
Cynthia,
I have to disagree with your analysis for the following reasons. It’s definitely a crime to possess classified information during the course of your government employment, assuming you are authorized to possess it, and to knowingly transfer or share that classified information with another person who is not entitled to possess or know it. However, the leaker is rarely, if ever, prosecuted when the recipient is a journalist and I don’t believe any journalist ever has been prosecuted.
Why? Two reasons: Because of the First Amendment and because this is what good and effective journalism is all about. Freedom of the Press would be meaningless, if the journalist and the leaker were prosecuted for conspiracy. Daniel Ellsberg and the Pentagon Papers is a great example. Jim Risen’s receipt of Top Secret information from multiple confidential sources of information at the NSA and the NY Times publication of his story about widespread illegal NSA interception of electronic communications is another. Deep Throat and Woodward and Bernstein is yet another. Seymour Hersh has made an enormously successful career out of it and Woodward did it recently relying on sources within the Obama administration. Note that journalists actively solicit such information in most cases, but they still aren’t prosecuted.
Assuming for the sake of argument that Manning transferred cables stamped “Secret” to Wikileaks, he’s in the same position as Daniel
Ellsberg, who actually transferred documents more highly classified than Manning. Even though Nixon was madder than a disturbed hornet, Ellsberg was never prosecuted (his office was raided by the plumbers). Since Woodward and none of his sources were prosecuted, I think a decision to prosecute Manning would be an improper violation of the rule prohibiting selective prosecutions. And obviously, there would be no basis to prosecute Assange, even if he initiated contact with Manning and solicited the classified materials. There is no evidence that anything like that ever happened, as far as I’m aware. Finally, the argument that Assange isn’t a journalist is absurd because he’s been a member in good standing of the Australian press for many years. But even if he weren’t a journalist, he still would not have committed a crime because it’s not a crime to knowingly receive, possess, or transfer or publish classified information.
With regard to Adrian Lamo and Kevin Poulsen: Neither of them committed a crime, even if Lamo transferred classified information to Poulsen because neither of them legitimately acquired classified documents while they worked for the government and transferred them to someone who wasn’t authorized to receive them. Therefore, neither of them committed a crime. Also Poulson is in Assange’s position as a journalist.
One last point. Lamo is scumbag snitch and no one should believe anything he says that is not independently verified and confirmed. In other words, assume the sumbitch is lying unless independent evidence proves otherwise.
Why would the government investigate its own mole and the media figure that the mole was most likely to contact?
Wrong.
See my answer below.
Wha? Is LHP the same as Cynthia?
I respectfully disagree with your decision, but agree to submit to your judgment call.
Nevertheless, for the record, I meant every word I said and still do.
I don’t know if you were addressing your question to me, but if you were:
I never said or intended to imply that Manning is a mole.
If you think Lamo is the mole and the government put him up to contacting Manning, I don’t have sufficient information to form an opinion about that, except to say that I disregard everything Lamo says because he’s a snitch and snitches always lie. That’s what they do. I haven’t read the communications that he claims to have had with Manning, but I doubt they’re relevant to the issue of whether Manning committed a crime because, as I explained in my comment above, the government would violate the selective prosecution rule, if it prosecuted him — regardless of his intent.
I am not saying Manning isn’t the leaker. He certainly could be. I can’t imagine him bragging about it to Lamo or anyone. He has nothing to gain and quite a bit to lose. Lamo’s story doesn’t make sense.
I think the Government’s hissy fit over the leaked documents and cables is outrageous, indefensible, and reprehensible. Manning should not be in custody. He was arrested eight months ago. He hasn’t been charged with a crime or appeared before a civilian or military judge to review whether there is probable cause to believe that he committed a crime, and if there is, to determine if he should be released pending the next hearing. He also being subjected to solitary confinement and that is torture, which is a violation of the Geneva Convention. IMO, Manning should be released immediately and the people responsible for incarcerating and torturing him have committed serious crimes and should be prosecuted.
People calling for Assange to be murdered or prosecuted really need to STFU. Assange has not committed a crime and this bullshit needs to stop.
NOW.
You’re making a different (and wrong) point. The poster is asking how the cases of Wired and Wikileaks are different, and the obvious answer is that the latter disseminated classified information while the former didn’t.
That said, the holding of the Pentagon Papers court isn’t relevant here; we’re not talking about ex ante prior restraint, but ex post punishment. The Pentagon Papers case discussed the First Amendment in relation to the former, and didn’t directly rule on the latter (although several justices said they the government could punish speech after publication w/o running afoul of the first amendment)
Which rule is that? I don’t think one exists, so if you could be specific it would appreciated.
Thanks in advance.
I an not a lawyer, but I read at a U.S. military defense lawyer’s website that a writ of habeas corpus (bail) is not permitted by the Uniform Code of Military Justice.
1. Your wrote: “He [Manning] hasn’t been charged with a crime…”
The Charge Sheet of Pfc. Manning can be found at FDL website, and I recall reading that it currently consists of 12 charges.
2. You wrote: “to determine if he [Manning] should be released pending the next hearing.”
As I mentioned in an earlier comment, it is authoritatively reported elsewhere online that no bail (writ of habeas corpus) is permitted by the Uniform Code of Military Justice.
3. You wrote: “He [Manning] also being subjected to solitary confinement and that is torture, which is a violation of the Geneva Convention.”
It seems that solitary confinement per se is not torture; rather, that long-term solitary confinement without ongoing suicidal/homicidal symptoms may be torturous in its effects.
4. You wrote, in your prior comment: “the government would violate the selective prosecution rule, if it prosecuted him [Manning] …
It is not clear what precise rule you are referring to. The U.S. Espionage Act of 1917 has an infamous history of being used to selectively oppress anyone who the U.S. Government wanted to silence, including such famous cases as Eugene Debs and E.E. Cummings. Those were egregious cases during times of war. At the other extreme, essentially all police decisions to report specific criminal charges against particular individuals in the USA are to some extent “selective” in the sense that they are influenced by political power. There are two generally contradictory ways that politicians try to look tough on crime. Whereas, Republicans tend to accept fewer charges filed in order to get higher conviction rates, Democrats tend to want to get more charges filed while accepting lower conviction rates.
The same could be said of Ralph Nader, who received my vote for the Presidency in 1996.
Whatever Humanist may have meant to say, my remarks were not intended as a universally applicable comment on the character of lawyers as individuals. I do believe, however, that Humanist is right about the overall character of the system in which lawyers must operate today.
The 14th amendment of the US Constitution. If a defendant can prove selective prosecution (the burden is on the defendant) than a judge may dismiss the case or specific charge.
IANAL so take this with a grain or two of salt, but I’m reasonably sure that’s where the “rule” comes from.
In individual cases, all of this may well be true. I have great respect for lawyers like Ralph Nader, who buck the system; I voted for him for President in 1996. But, as you say yourself:
And the blame for that does not lie exclusively within the executive branch of our government at the federal level; statute and case law at all levels of government are at least equally to blame. Even before Citizens United, U.S. constitutional case law (as opposed to the Constitution itself) was a travesty. And lobbyists frequently use the principle of “fluff not stuff”; they collaborate with venal legislators to design laws specifically in a way that makes them appear to offer the public greater protection than is actually the case.
Your efforts, like those of other decent lawyers, may well have done a great deal of good at an individual level. But you have not succeeded in changing the nature of the system as a whole – and it is very important for you to admit this publicly. My impression has been that most lawyers do not admit it, even when their own personal role in the system is otherwise beneficent.
Here you go:
“The U.S. Supreme Court has held that selective prosecution exists where the enforcement or prosecution of a Criminal Law is “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive” that the administration of the criminal law amounts to a practical denial of Equal Protection of the law (United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 [1996], quoting yick wo v. hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 [1886]). Specifically, police and prosecutors may not base the decision to arrest a person for, or charge a person with, a criminal offense based on “an unjustifiable standard such as race, religion, or other arbitrary classification” (United States v. Armstrong, quoting Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 [1962]).”
* * *
“The prohibition of selective prosecution may be used to invalidate a law. In Yick Wo v. Hopkins, the U.S. Supreme Court struck down a San Francisco ordinance that prohibited the operation of laundries in wooden buildings. San Francisco authorities had used the ordinance to prevent Chinese from operating a laundry business in a wooden building. Yet the same authorities had granted permission to eighty individuals who were not Chinese to operate laundries in wooden buildings. Because the city enforced the ordinance only against Chinese-owned laundries, the Court ordered that Yick Wo, who had been imprisoned for violating the ordinance, be set free.”
Source: http://legal-dictionary.thefreedictionary.com/Selective+Prosecution
The selective prosecution here would be the decision to prosecute Manning for possessing material classified as secret that he was authorized to possess and transferring it to another person whom he knew was not entitled to possess it. Although he may have technically violated the law (and I’m assuming without knowing that the government can prove that he transferred classified documents to Wikileaks, or Assange), he is the most recent in a very long list of people to do that, including Daniel Ellsberg, whom the government has never prosecuted. More recently, people in the Obama administration leaked highly classified information to Bob Woodward and he published it in his book without drawing so much as a murmur of complaint. Because the government has never gone after anyone before, even when more damaging and more highly classified documents were released as happened with Ellsberg, but all of a sudden now wants to make an example out of Manning to create a chilling effect on others who might turn whistleblower and the journalists to whom they may turn, the government’s motive is selective and discriminates against whistleblowers as a class in violation of the Equal Protection Clause of the Fourteenth Amendment and the Freedom of Speech and Freedom of Press Clauses of the First Amendment.
I stand corrected. I was not aware that Manning had been charged and accorded an appearance in court to review the charging document for probable cause and consider the issue of pretrial release.
See my comment about the selective prosecution rule and its interface with the First Amendment above.
BTW, he’s been held in solitary confinement for 7 months without a valid reason and that’s torture.
I wasn’t aware of that either. When is his trial I wonder. Do military personnel have the same rights to a speedy trial as civilians?
If I were living in those conditions, I’d want a trial as soon as possible.
Nevermind, I know where the confusion comes from (in my mind anyway)
I think he’s only been charged in connection with the leaked helicopter film showing US soldiers in Iraq basically murdering some folks.
I don’t think he’s been charged with anything yet with respect to the 250,000 cables leaked to wikileaks. Could be wrong on that though.
It was a rhetorical question in response to the title of the post, actually.
Main reason that Lamo and Poulsen won’t be charged is because they are working for the US Government.
Not saying they aren’t working for the Government, as Lamo certainly appears to be, and of course they wouldn’t be charged, assuming they had committed a crime — except here they can’t be charged because they didn’t commit a crime. That trumps everything and renders further discussion irrelevant regarding why they might not be charged, unless one wants to play the what-if game.
Okay. Thanks for clarifying. I should have realized you weren’t responding to me because the squiggly little snake arrow was missing.
YSBAL.
That’s You Should Be A Lawyer because you were right.
Thanks for the exposition. In what Nietzsche would have called a world-historic irony, the selective-prosecution rule has itself been applied selectively, as in the case at hand.
I don’t have the reference, but I remember once having seen a newspaper op-ed article (written by a prisoner, I think) saying that until the second half of the Twentieth Century, judges generally would not allow felony criminal prosecutions to proceed on the basis of a single witness’s uncorroborated testimony, especially if the witness was someone whose credibility was otherwise suspect (such as a jailhouse snitch). The article went on to say that at the time of its publication (the 1990s, I think), judicial practice and precedent had changed to allow felony prosecution and conviction with a single witness, and the change had occurred at about the same time as the prison-industrial complex really took off as an economic phenomenon. Perhaps as an attorney you could comment on the historical accuracy (or otherwise) of this account.
Thanks – I glanced at its Spamazon page, and added it to my list.
I agree, and if the USA won’t allow them to be prosecuted (as is likely), I suspect there’s a case against them in international law (for human rights violations, torture, or some such). But I’m not a lawyer (of any kind). If you were given the assignment of prosecuting the prosecutors (1) in a U.S. court, (2) in an international court, how would you go about putting together your case? What charges would you bring?
I initially mentioned the 14th amendment in my comment, but figured the distinction was obvious enough it wouldn’t have to be discussed, but it looks like I was wrong.
“Julian Assange” and “Daniel Ellsberg” aren’t classes for 14th amendment purposes. Let’s look more closely at Yick Wo:
IOW, the law violated the 14th amendment because it was aimed at the protected class of race.
The reasoning of Yick Wo is simply inapplicable here. What you would need to find is a case finding an estoppel theory in the 14th amendment: if a law hasn’t been brought to bear on people in the past, it can’t be charged against similarly situated people in the future. I can save you some time and let you know that such a case doesn’t exist.
It’s not a “selective prosecution rule,” it’s a rule against discrimination against protected classes (race, gender, national origin, and so on).
Since the DOJ isn’t considering prosecuting Assange because he’s white, or Australian, or an atheist, the 14th amendment doesn’t apply in this instance.
Just to foreground the important part: Yick Wo tells us that uneven enforcement triggers the equal protection clause when that enforcement is predicated on suspect classification (race, religion, national origin, etal). Uneven enforcement, by itself, does not violate the 14th amendment.
This distinction is summarized nicely in US v Armstrong:
To sum up: selective prosecution is fine unless predicated on some constitutionally infirm basis (like racial discrimination).
You might be thinking of the co-conspirator exception to the hearsay rules. It’s been a while since evidence class, but IIRC the idea is that the hearsay statements of an unindicted co-conspirator can’t be used to prove the existence a conspiracy in a case against the indicted co-conspirator. That prophylactic rule was tweaked in the 80s w/ Bourjaily v US and then eliminated a few years back in Crawford v. Washington, where the SCOTUS said that a court can look to other supporting facts to determine the reliability of the statements (thereby turning a prophylactic rule into a balancing test).
I am not an authority on the Code of Military Justice, but even if it eliminated writs of habeus corpus which I’m inclined to doubt, it could not bestow unregulated rights on the military. Even SCOTUS’s right wing four probably support the supremacy of civil courts over military courts. In the egregious case of Manning they might decide the military cannot, as a matter of constitutional law, hold someone in solitary confinement for seven months or longer. They might even decide joining the military doesn’t mean surrendering constitutional rights. Under the circumstances, a habeus in Manning’s case seems worth a shot.
Too bad our former constitutional law professor turned commander in chief allows this grave breach on his watch. Perhaps we are further down the road to a bad place than we imagine.
The Guardian covers the issue of the undisclosed chat logs today. Greenwald has made it clear that he has not asked for some complete document release. However, Wired seems to continue to avoid the issue and obfuscate by claiming they can only choose a total release or nothing more.
Greenwald points to inconsistencies in public releases by Lamo. He has maintained that Wired could release the specific relevant data and appropriately redact anything to protect Manning’s privacy as claimed. By obfuscation instead of answering why they won’t release the relevant logs, Greenwald’s contentions are strengthened. I smell a conspiracy of rats and it’s impossible to know where the nest lies!
This reply is aimed at the three jpe posts directly above.
Is that you, John Roberts??
Pretty narrow reading of the 14th you’ve got going on there. Guess this is why the right wing picked you for SCOTUS in the first place.
Hoping you’ll carry that narrowness along to the 4th, where it states “The RIGHT of the people to be secure in their houses, PAPERS, and EFFECTS, against unreasonable searches and seizurres, SHALL NOT BE VIOLATED, and NO WARRANT shall issue, but upon PROBABLE CAUSE,……
Pretty clear language there to strike down ANY unwarrented searches of ANYONE’s PAPERS (today that would electronic) or EFFECTS.
There’s a couple others I’d hope your as narrow on as well. And if that IS you, Chief Roberts, then here is your chance to explain the COMPLETE unnarrowness of your ruling on the 2nd Amendment, which NOWHERE mentions GUNS, HANDGUNS, or FIREARMS. In fact, those words appear NOWHERE in the US Constitution, or the DOI.
Guessing like other reichwingers, consistency isn’t your strong point, is it Justice Roberts?
Oh, and BTW, you asked for the rule against selective prosecution. We gave it to you. The SCOTUS itself calls this defense “selective prosecution” so that IS the name of defense, and thus, the rule.
If you don’t like the term “selective prosecution” then you should take it up with the SCOTUS.
Nothing in the Fourteenth Amendment or the Bill of Rights justifies the restriction of their protections against discrimination to a narrow set of “protected classes”, although some courts have nevertheless betrayed the public trust by imposing such a restriction. Likewise, nothing in the reasoning behind the selective prosecution rule – which is based on these constitutional sources – can justify any such restriction on its applicability.
I’ve elsewhere exposed the intellectual and moral bankruptcy of all narrowly restrictive approaches to the interpretation of the Bill of Rights; see:
http://emptywheel.firedoglake.com/2010/12/27/tsas-legal-justification-for-gate-grope/#comment-268365
and my following comments. See also my comments in:
http://my.firedoglake.com/michaelwhitney/2010/12/24/rape-victim-arrested-by-tsa-for-refusing-groping/
As I wrote above, even before Citizens United, U.S. constitutional case law (as opposed to the Constitution itself) was a travesty.
To my knowledge, Maning has NOT admit to leaking anything. AFAIK, he is only being held in connection with the release of the helicopter shooting video (known online as “Collateral Murder”), which is CLEARLY whistleblowing.
Assange has said all along that he only learned of Manning’s name through the media, not through any WIkileaks channel and that he does’t actually know if Manning did it, but that Wikileaks would like to support him if he is being targeted b/c he is believed to have leaked to Wiki; whether or not that is, in fact, true.
For all we know, Manning leaked nothing and is just a Rebecca Nurse character.http://plays.about.com/od/plays/a/rnurse.htm
1) It’s leaking to anyone not entitled to reatin it + detriment to US security.
2) and how do you know what hands they inteded to put it into? They are publishers.
I’m repeating in full a comment of mine on some of your earlier posts, which is equally applicable here.
A side note: if you know as much about the law as your posts give the impression you do, then you also know the full extent of the role that spectacular extremes of intellectual dishonesty and moral depravity have played in U.S. constitutional case law. The very names of some of the most famous cases emit a stench that wafts down over the years, decades, and centuries to the present day: Dred Scott, Plessy v. Ferguson, Lochner, Korematsu, Bush v. Gore. I take pride in having read all the way through the slip opinion for the last of these without benefit of antiemetics. Most of these outrages have since been reversed by later Supreme Courts, but that fact only strengthens their historical value as evidence that case law must be taken with a grain of salt when deciding what our Constitutional rights are.
I don’t think you and I are disagreeing. I’m not conceding that Manning or Assange should be prosecuted. I agree, that the histry of this country with respect to such leaks has been to NOT prosecute the leaker or the media outlet.
What I was trying to point out was the hypocrisy of the hysteria around the calls to prosecute Assange. How many times did Fran Fragos Townsend call Assange a criminal in that Yellsin piece I linked to?
My point was, if the thin gruel on which the demands for prosecution of Assange have folks howling for it, the rich thick stew of the Lamo Poalson situtation could not be ignored.
I don’t think anyone should be prosecuted for a Whistleblower leak.
Unlike Floyd Abrams I DO think that non-whistleblower leaks, Like Scooter Libby disseminating still classified parts of the NIE and the Bush WH repeatedly leaking Valerie Plame’s ID, should NOT be afforded the same delicate treatment as a true whistleblower leak.
When I worked for NYC Dept of Investigations, one of my responsiblities was doing “whistleblower determinations” which was to do an investigation and write a report that XYZ person’s activites consituted true whistleblowing activity. That determination would be put in their personell file and if they suddenly started getting negative reviews, or passed over for promotio the Human Resources folks would use the Determintaion Decision to rectify the retaliatory treatement, and where sufficient smoking gun existed, the retaliators would be disciplined.
There is a ton of adminstrative case law in theis country relating to how you prove if someone is a true whistleblower. It’s not rocket science.
I have always disagreed with the NYTimes decision to back Judy Miller when she was protecting an antiwhistleblower. I only came to sorta forgive them when they reveealed, after the fact, that they never asked Judy what actually happened and didn’t know the facts themselves. They relied on her integrity and good judgement to make thses distinctions, and she punked them. The rest of the media outlest appeared to have dealt with the actual facts on the ground in deciding to cooperate. (Cooper was sort of in a middle place. )
In case you haven’t heard, Poulsen basically admitted an important point made by Lameass IS NOT IN THE CHAT LOGS. Namely, there is nothing in the logs to corroborate Lameass’s claim that Manning used some special dedicated server to upload the logs. It was also admitted that there is nothing in the unpublished logs that confirm some sort of relationship between Manning and Assange. So there has been that much coming out of Poulsen, at least.
http://www.boingboing.net/2010/12/29/lamomanning-wikileak.html
And even aside from the general (although extreme) caveats about U.S. constitutional case law as such, nothing in the reasoning you have cited so far justifies interpreting “or other arbitrary classification” to refer solely to the “protected classes” of “race, religion, national origin, etal” to which courts have arbitrarily chosen to limit the protections of the Constitution. Please explain exactly which sophistries the courts have used to justify such a narrow interpretation.
It may be a narrow reading, but it’s the correct one. Anyone that didn’t sleep through Conlaw can recite the facts and holding of Yick Wo, so my comment is nothing unusual or outrageous. It’s a basic statement of the law as it currently is.
No, you didn’t. You provided a case saying that the 14th amendment rule against discrimination v. suspect classes applies to enforcement as well as facially to the laws themselves.
That may be your reading, Sebastos, but it’s not the reading of SCOTUS. If you want to say the 14th *ought* to preclude the prosecution of Assange, you’re certainly free to do so, but if you say it does under current law then you’re just wrong.
You’re entitled to your own opinion, but not your own facts.
If Wired doesn’t disseminate the information obtained, where’s the detriment?
The basis for objection to selective prosecution is not even limited to the U.S. Constitution; it is a matter of internationally recognized human rights. Hillary Clinton, as U.S. Secretary of State, has just criticized the Russian government for selective prosecution of Mikhail Khodorkovsky, a political opponent of Vladimir Putin: “US slams selective prosecution in Khodorkovsky trial” (RTTNews, 2010 Dec 27). German Foreign Minister Guido Westerwelle joined in the criticism, saying that “The way the trial has been conducted is extremely dubious and a step backward on the road toward a modernization of the country.”
The very narrow “protected classes” doctrine is merely an attempt by some courts to defraud U.S. citizens of rights that they have not only under our own Constitution, but under internationally recognized standards of human rights.
No, the law on this matter, as it currently is, can be read directly from the Constitution. This is an attempted judicial coup in progress, worthy of no more respect than Lochner or Plessy v. Ferguson.
“The U.S. Supreme Court has held that SELECTIVE PROSECUTION EXISTS…”
CAPS mine. To repeat, THE SCOTUS HAS HELD THAT SELECTIVE PROSECUTION EXISTS and then lists what the SCOTUS defines as selective prosecution.
So, again, if you don’t like the term, take it up with SCOTUS.
http://legal-dictionary.thefreedictionary.com/Selective+Prosecution
The correct one??? Really, Yick Wo is the only case in history that defines the narrowness or broadness of the 14th??
I’m betting this would be news indeed to anyone that didn’t sleep through Conlaw.
The Supreme Court’s case law cannot transcend the Constitution that it claims to be interpreting. The relevant law is written in the Constitution.
True, but it is you – and the Supreme Court – that are distorting the law.
Would you, jpe12, have asserted that the Lochner and Plessy v. Ferguson decisions were “fact” about “current law”, at the times that these infamous miscarriages of justice were handed down from the Supreme Court?
Justice Holmes observed in his dissent to Lochner that “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” The majority claimed, in effect, that it did. They were lying.
To a free people, “current law” is not necessarily determined by current court precedents. And a court system that engages in sufficiently blatant willfull misinterpretation of the Constitution undermines its own authority.
It seems to me that Sebastos is making strong arguments that you’re ignoring to focus on my weaker ones.
I’m gonna leave now, hoping you’ll answer some of the very good points Sebastos raises instead.
Have a happy and SAFE New Year, jpe12, and ALL others.
I started to draft a response to your comment, but it grew and grew. So now I’m posting it as a diary.
Down and dirty: I don’t agree with your comment.
See my diary at
http://my.firedoglake.com/mason/2010/12/31/manning-and-assange-did-not-commit-a-crime/
This is a response to jpe’s argument that the Equal Protection Clause of the Fourteenth Amendment and the selective prosecution rule do not apply to Bradlee Manning.
I do not agree. See my recently posted diary at http://my.firedoglake.com/mason/2010/12/31/manning-and-assange-did-not-commit-a-crime/
My answer is too long to post as a comment and I also fleshed out my First Amendment argument.
You’re right, Sebastos. There was such a rule, but if it exists anymore, it’s a minority rule.
The more recent trend since the seventies has been to allow juries to make credibility decisions. Rather than requiring the corroboration of a jailhouse snitch’s testimony as a necessary foundation for a jury to believe a snitch and base a verdict on the snitch’s testimony, which an increasing number of courts have regarded as an impermissible comment on the evidence, courts have abandoned that inflexible requirement in favor of placing the burden on the lawyers to argue about what weight the jury should assign to the snitch’s testimony. Many judges basically decided that rule was too much like a presumption that the snitch was lying.
Even without the rule, I never had a problem convincing a jury that all uncorroborated snitch testimony should be disregarded.
Thanks, I see where you’re coming from. Yes we do agree.
I kind of touched a bit in a diary that I just wrote on the distinction between whistleblowers who reveal information about wrongdoing and what I referred to as leakers who reveal false or misleading information for propaganda purposes, for example. I agree that’s an important distinction to draw and it sounds like you have lots of experience doing that.
BTW, do you what’s going on with some proposed or pending legislation, possibly already passed by the House regarding whistleblower protection? I don’t think it’s passed yet and I don’t see Obama ever supporting whistleblower protection.
Yikes, he hates whistleblowers with a vengeance!
I know it’s tough being a whistleblower because I’ve been there, done that, and suffered the consequences. Not good, but I’d do it again, if I had a chance to relive that part of my life. But, that’s a whole other story.
Happy New Year.