Floyd Abrams published an op-ed in the Wall Street Journal in which he argued that the content of leaked information should determine whether or not the publisher should be protected from prosecution under the Espionage Act. He pointed out that Daniel Ellsberg leaked only a portion of the Pentagon Papers and kept back four volumes of diplomatic communications because he did not wish to obstruct diplomatic efforts to end the Vietnam War. Mr. Abrams went on to blast WikiLeaks for releasing diplomatic cables and blames WikiLeaks’ editor Julian Assange’s conduct for dooming the chances of enacting a federal shield law.

This contradicts Daniel Ellsberg’s own statements in support of WikiLeaks and, moreover, is directly at odds with his position regarding “good leaks” and “bad leaks” during the whole Judy Miller fiasco.

In an interview with PBS’s Frontline Mr. Abrams discussed his defense of Judy Miller thusly:

[Q]… The other bad fact was that whoever was being protected apparently by Ms. Miller and Mr. Cooper wasn’t really a whistleblower, was apparently someone out to damage the reputation of a dissenter.

[A]… It’s true that in a situation in which what is involved is not a whistleblower exposing misconduct within the government, say, but someone within the government, particularly in a situation in which it could be said that the person’s using his position to attack someone else, in that circumstance it made it a still more difficult case. No question of that.

Now, my own view is that the law can’t and shouldn’t distinguish, and I would say journalists can’t and shouldn’t distinguish between good sources and bad, virtuous sources and unvirtuous ones. If a journalist grants confidentiality, I think the journalist has to keep her word.

[emphasis added]

It’s important to note here that whoever leaked the Collateral Murder video to WikiLeaks is clearly a whistleblower as the release of the video clearly exposed wrongdoing. Supposedly, it is the leak of the Collateral Murder video for which Pvt. Bradley Manning has been charged.  . . . Read the rest of this entry →

photo: neural.it via Flickr

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?