This week, Senators Joe Lieberman and Dianne Feinstein engaged in acts of serious aggression against their own constituents, and the American people in general. They bothinvoked the 1917 Espionage Act and urged its use in going after Julian Assange. For good measure, Lieberman extended his invocation of the Espionage Act to include a call to use it to investigate the New York Times, which published WikiLeaks’ diplomatic cables. Reports yesterday suggest that U.S. Attorney General Eric Holder may seek to invoke the Espionage Act against Assange.
These two Senators, and the rest of the Congressional and White House leadership who are coming forward in support of this appalling development, are cynically counting on Americans’ ignorance of their own history — an ignorance that is stoked and manipulated by those who wish to strip rights and freedoms from the American people. They are manipulatively counting on Americans to have no knowledge or memory of the dark history of the Espionage Act — a history that should alert us all at once to the fact that this Act has only ever been used — was designed deliberately to be used — specifically and viciously to silence people like you and me.
The Espionage Act was crafted in 1917 — because President Woodrow Wilson wanted a war and, faced with the troublesome First Amendment, wished to criminalize speech critical of his war. In the run-up to World War One, there were many ordinary citizens — educators, journalists, publishers, civil rights leaders, union activists — who were speaking out against US involvement in the war. The Espionage Act was used to round these citizens by the thousands for the newly minted ‘crime’ of their exercising their First Amendment Rights. A movie producer who showed British cruelty in a film about the Revolutionary War (since the British were our allies in World War I) got a ten-year sentence under the Espionage act in 1917, and the film was seized; poet E.E. Cummings spent three and a half months in a military detention camp under the Espionage Act for the ‘crime’ of saying that he did not hate Germans. Esteemed Judge Learned Hand wrote that the wording of the Espionage Act was so vague that it would threaten the American tradition of freedom itself. Many were held in prison for weeks in brutal conditions without due process; some, in Connecticut — Lieberman’s home state — were severely beaten while they were held in prison. The arrests and beatings were widely publicized and had a profound effect, terrorizing those who would otherwise speak out.
Presidential candidate Eugene Debs received a ten-year prison sentence in 1918 under the Espionage Act for daring to read the First Amendment in public. The roundup of ordinary citizens — charged with the Espionage Act — who were jailed for daring to criticize the government was so effective in deterring others from speaking up that the Act silenced dissent in this country for a decade. In the wake of this traumatic history, it was left untouched — until those who wish the same outcome began to try to reanimate it again starting five years ago, and once again, now. Seeing the Espionage Act rise up again is, for anyone who knows a thing about it, like seeing the end of a horror movie in which the zombie that has enslaved the village just won’t die.
I predicted in 2006 that the forces that wish to strip American citizens of their freedoms, so as to benefit from a profitable and endless state of war — forces that are still powerful in the Obama years, and even more powerful now that the Supreme Court decision striking down limits on corporate contributions to our leaders has taken effect — would pressure Congress and the White House to try to breathe new life yet again into the terrifying Espionage Act in order to silence dissent. In 2005, Bush tried this when the New York Times ran its exposé of Bush’s illegal surveillance of banking records — the SWIFT program. This report was based, as is the WikiLeaks publication, on classified information. Then, as now, White House officials tried to invoke the Espionage Act against the New York Times. Talking heads on the right used language such as ‘espioinage’ and ‘treason’ to describe the Times’ release of the story, and urged that Bill Keller be tried for treason and, if found guilty, executed. It didn’t stick the first time; but, as I warned, since this tactic is such a standard part of the tool-kit for closing an open society — ‘Step Ten’ of the ‘Ten Steps’ to a closed society: ‘Rename Dissent ‘Espionage’ and Criticism of Government, ‘Treason’ — I knew, based on my study of closing societies, that this tactic would resurface.
Let me explain clearly why activating — rather than abolishing — the Espionage Act is an act of profound aggression against the American people. We are all Julian Assange. Serious reporters discuss classified information every day — go to any Washington or New York dinner party where real journalists are present, and you will hear discussion of leaked or classified information. That is journalists’ job in a free society. The White House, too, is continually classifying and declassifying information.
As I noted in The End of America, if you prosecute journalists — and Assange, let us remember, is the New York Times in the parallel case of the Pentagon Papers, not Daniel Ellsberg; he is the publisher, not the one who revealed the classified information — then any outlet, any citizen, who discusses or addresses ‘classified’ information can be arrested on ‘national security’ grounds. If Assange can be prosecuted under the Espionage Act, then so can the New York Times; and the producers of Parker Spitzer, who discussed the WikiLeaks material two nights ago; and the people who posted a mirror WikiLeaks site on my Facebook ‘fan’ page; and Fox News producers, who addressed the leak and summarized the content of the classified information; and every one of you who may have downloaded information about it; and so on. That is why prosecution via the Espionage Act is so dangerous — not for Assange alone, but for every one of us, regardless of our political views.
This is far from a feverish projection: if you study the history of closing societies, as I have, you see that every closing society creates a kind of ‘third rail’ of material, with legislation that proliferates around it. The goal of the legislation is to call those who criticize the government ‘spies’, ‘traitors’, enemies of the state’ and so on. Always the issue of national security is invoked as the reason for this proliferating legislation. The outcome? A hydra that breeds fear. Under similar laws in Germany in the early thirties, it became a form of ‘espionage’ and ‘treason’ to criticize the Nazi party, to listen to British radio programs, to joke about the fuhrer, or to read cartoons that mocked the government. Communist Russia in the 30’s, East Germany in the 50’s, and China today all use parallel legislation to call criticism of the government — or whistleblowing — ‘espionage’ and ‘treason’, and ‘legally’ imprison or even execute journalists, editors, and human rights activists accordingly.
I call on all American citizens to rise up and insist on repeal of the Espionage Act immediately. We have little time to waste. The Assange assault is theater of a particularly deadly kind, and America will not recover from the use of the Espionage Act as a cudgel to threaten journalists, editors and news outlets with. I call on major funders of Feinstein’s and Lieberman;s campaigns to put their donations in escrow accounts and notify the staffers of those Senators that the funds willonly be released if they drop their traitorous invocation of the Espionage Act. I call on all Americans to understand once for all: this is not about Julian Assange. This, my fellow citizens, is about you.
Those calling for Julian Assange’s criminalization include:
1. Rep. Candice Miller
2. Jonah Goldberg, Journalist
3. Christian Whiton, Journalist
4. Bill O’Reilly, Fox News Journalist
5. Sarah Palin, Member of the Republican Party, former candidate
6. Mike Huckabee, Politician
8. Prof. Tom Flanagan
9. Rep. Peter King
10. Tony Shaffer
11. Rick Santorum
12. Rep. Dan Lugren
13. Jeffrey T. Kuhner, Journalist The Washington Times
14. Rep. Virginia Foxx
15. Sen. Kit Bond, Vice Chairman of the Senate Intelligence Committee
16. Sen. Joe Liberman
17. Sen. Charles Schumer
18. Marc Thiessen, Columnist
UNDER FIRE: Former ALP senator Stephen Loosely says Senator Arbib is no spy. Picture: AFP Source: The Australian
MARK Arbib was not a spy and was in fact acting in Australia’s interests when he told US diplomats what was going on inside the ALP.
Anyone who says otherwise is anti-American, insists former ALP senator Stephen Loosely.
Mr Loosley said Senator Arbib was doing nothing more than politicians from the Labor and Liberal parties had been doing for decades when it came to frank, private political discussions with envoys from Australia’s closest ally.
Senator Arbib, the Sports Minister, was portrayed as a spy in the Fairfax press yesterday after he was named in WikiLeaks cables as one of several politicians who discussed with US envoys the inner workings of the Labor Party, including leadership issues, just before Kevin Rudd was deposed as prime minister.
Mr Loosley admitted that he was one of several Labor Party members who tipped off US diplomats in Sydney in late 1991 about the probability that Paul Keating would depose Bob Hawke as prime minister.
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“A lot of people, including myself, were involved in those conversations with the Americans, because it was very much in our national interest that the Americans were clear about what was happening inside the government,” Mr Loosley told The Australian yesterday.
“The notion that Mark Arbib is somehow a spy is truly absurd and offensive. The Australia-US relationship is based firmly on trust, and the reason we have such a relationship is because both sides are constantly working the patch as far as politics and policy is concerned.”
Mr Loosley, a member of the Australian-American Leadership Dialogue, attacked Senator Arbib’s critics as anti-American.
“For some elements of the political class, the closeness in our relationship with the Americans is always equated to subservience, but that is simply not true,” he said. “It is a two-way process, and this sort of discussion also helps Australia form views about our allies.”
Former politicians and diplomats said yesterday the unique nature of the Australia-US relationship meant there was broader and more open dialogue between diplomats, politicians and decision-makers than occurred between other countries.
Senator Arbib is one of many Australian politicians who attend the leadership dialogue, an annual bipartisan forum of leaders from government, business and the media from both countries who engage in frank discussions on the bilateral relationship under Chatham House rules.
The leaked US cables said Senator Arbib was “an influential factional operator” who “has met with us repeatedly throughout his political rise”.
Strategic analyst Hugh White said Senator Arbib had not done anything wrong in speaking frankly to the Americans about Labor Party issues.
“The standard we should apply here is whether he has said anything which damages Australia’s national interests,” Mr White said. “I don’t think it does any harm for the private machinations of the Labor Party to be shared. Lots of politicians have been doing the same thing for years. These are not matters of national security.”
Left-wing journalist and author John Bilker said the revelations about Senator Arbib’s links with the Americans raised questions about whether the US government played a role in the deposing of Mr Rudd as prime minister, given that Senator Arbib was an architect of Mr Rudd’s demise.
He said the US might have been unhappy with Mr Rudd because he appeared ambivalent about Australia’s continued military involvement in Afghanistan.
One senior Labor figure, who asked not to be named, said that although Senator Arbib had not broken any rules in talking about party affairs with US diplomats, he would be ostracised by many within the Labor movement because of his activities.
A former Australian Secret Intelligence Service agent, Warren Reed, said the nature of Senator Arbib’s links with the US embassy and its staff should be explored more closely.
“If the Americans are referring to Mr Arbib as a ‘protected source’ then they clearly believe he is of value to them,” Mr Reed said.
Greens leader Bob Brown said he would not be surprised if conversations he had had with US officials were the subject of secret embassy cables.
“I regularly . . . get asked to meet the US ambassador and indeed a few other ambassadors from countries around the world,” Senator Brown said. “I’m always very careful about that, because you know the information is going back to the home capital, whether it is Beijing or Washington or Wellington, or wherever.
“I think it’s good that this (the Arbib cables) has seen the light of day. We all have to answer as elected members of parliament for any information we’re giving to foreign embassies.”
The likelihood of the founder of WikiLeaks facing possible extradition to the US has strengthened with a number of senior American politicians declaring that he has breached the Espionage Act.
Supporters of Julian Assange say they fear that his extradition to Sweden for alleged sex crimes will pave the way for a future appearance in an American court.
Joe Lieberman, the head of the Senate’s Homeland Security Committee, claimed yesterday that the leaks organised by Julian Assange and his associates were “serious violations of the Espionage Act”. US State Department spokesman Philip Crowley added: “What WikiLeaks has done is a crime under US law.”
The US Justice Department is under intense political pressure, especially from the Republicans, to pursue Mr Assange, with leading figures of the right, such as Sarah Palin, using the leaks to attack the Obama administration.
“They have got to do something, otherwise they will face pretty savage criticism,” said a European diplomat. “I suppose the best hope for the Americans is that he gets convicted in Sweden and serves a jail sentence there.”
Although the US authorities have as yet made no official request for his extradition, informal discussions have been held between American and Swedish officials to that end. Mr Assange’s London solicitor Mark Stephens said that being sent to Sweden from the UK would make his client extremely vulnerable. “His Swedish lawyer has said that it would be quite unsafe for Julian in Sweden at this time,” Mr Stephens said. “Not in terms of he would be harmed in Sweden, but that Sweden is not the end game.”
Eric Holder, the US Attorney General, has said that Justice Department lawyers are examining how Mr Assange could be indicted over the leak of the diplomatic cables. “This is not just sabre-rattling on our part,” he said. “We are talking about one of the most serious violations of the Espionage Act in our history. To the extent that we can find anybody who was involved in the breaking of American law… they will be held responsible; they will be held accountable.”
However, diplomatic sources say that it is not clear whether the US authorities will be able to prosecute Mr Assange under the Espionage Act. They point out that whereas it is illegal for government officials with security clearance to leak classified documents to WikiLeaks, it is not clear whether it is illegal for the website to make it public.
There is yet to be a successful prosecution of a third-party recipient of a leak and the possible acquittal of Mr Assange on such a charge would be doubly embarrassing for the US administration.
The Justice Department is, therefore, also considering bringing possible charges of Mr Assange receiving stolen government property. But that too could pose difficulties as journalists have in the past used leaked government documents in the US without being prosecuted.
Meanwhile it was announced yesterday that Mr Assange’s legal team will be led by the prominent Australian-born barrister Geoffrey Robertson QC, who has flown back from Sydney to take on the case. Mr Robertson, who has been involved in a number of high-profile human rights cases, could take the appeal against the granting of extradition to Sweden all the way to the Supreme Court, with legal proceedings stretching into months.
A jury will resume deliberations today in the trial of two men facing federal industrial espionage charges for allegedly taking photographs of tire-making machinery at a Goodyear Tire and Rubber Co. plant in Kansas in order to duplicate the equipment.
Federal prosecutors and defense lawyers presented closing arguments Wednesday in the case of Clark Alan Roberts and Sean Edward Howley, then U.S. District Judge Thomas W. Phillips sent the case Wednesday afternoon to the jury of eight men and four women for deliberations, which ended the day without a verdict.
Phillips ordered jurors to resume deliberations at 9 a.m. today.
Roberts and Howley are standing trial on a 10-count indictment alleging that they conspired to steal and make use of trade secrets. In closing arguments, prosecutors portrayed the case as one of blatant theft of information from Goodyear to help a competing Chinese tire company gain an economic advantage. Defense attorneys said it was really more of a civil case that didn’t belong in federal criminal court.
“It was a bad business decision to take those photos,” said Tom Dillard, attorney for Roberts. “But that doesn’t make it a federal offense.”
Thomas Dougherty, an attorney for the U.S. Justice Department, disagreed.
“The defense may not like it, but it is a federal crime to steal trade secrets,” Dougherty said. “It is not just a bad business decision; it is a theft.”
Dougherty and Greg Weddle, assistant U.S. attorney, contend that Roberts, who was head engineer for Greenback-based Wyko Tire Technology Inc., and Howley, an engineer in training there, arranged a visit to a Goodyear plant in Topeka May 30-31, 2007, so Howley could use his cellphone camera to take seven photos of an over-ply down machine used for a crucial phase of producing large tires used on mining and earth-moving equipment.
Wyko had a contract with a Chinese tire manufacturer to provide such a machine, and Wyko was having trouble producing one within the 20 weeks stipulated in the contract, prosecutors said.
Defense attorneys do not deny the men took the photographs but challenged the idea that the over-ply down machine met the legal definition of a trade secret. In the 1990s, Goodyear had sent an example of the machine to Wyko, a Goodyear supplier, for possible modification and improvement and Wyko kept the machine for three years, the attorneys said.
“You can’t steal that machine if you already have it,” said Doug Trant, Howley’s attorney.
In 2000, Goodyear sent Roberts detailed photographs of the over-ply down machine, Dillard said. Defense attorneys said neither the machine nor the photos came with any confidentiality agreement, but prosecutors said there was fine-print language in the purchase orders sent with those items that restricted their use.
Earlier in the trial, which began Dec. 1, Trant suggested that Goodyear was using the federal government to do its dirty work.
“If Goodyear needs to sue him, they ought to sue him,” Trant said.
Both sides agreed that Goodyear was warned by a Wyko employee that Roberts and Howling were planning a trip to Topeka to photograph sensitive equipment there. Prosecutors counted this as evidence of the defendants’ plan to steal trade secrets. Defense attorneys questioned why Goodyear didn’t try to stop them after being tipped off.
Roberts and Howley are being tried under the Economic Espionage Act of 1996, which Congress enacted out of concerns that foreign countries try to steal U.S. trade secrets, the ease with which technology makes it possible for disgruntled employees to steal a company’s privileged information and other factors.
The act sets out guidelines to define a trade secret, and one of the crucial tasks of the jury will be to see if the over-ply down machine meets them. Something is a trade secret under the act if the owner took reasonable measures to ensure secrecy, the protected information would not be generally known or readily accessible to the public, and if the owner would derive some “independent economic value” from keeping the information secret.
Business writer Ed Marcum may be reached at 865-342-6267.
Sen. Dianne Feinstein wants to prosecute Julian Assange for espionage.
The founder of WikiLeaks “intentionally harmed the U.S. government,” says Feinstein, who chairs the Senate Intelligence Committee. By releasing 250,000 State Department cables, he also violated the 1917 Espionage Act by transmitting “information which the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,” Feinstein, D-Calif., charged in a Wall Street Journal opinion piece Tuesday.
To John Perry Barlow, co-founder of San Francisco’s Electronic Frontier Foundation, “The first serious infowar is now engaged. The field of battle is WikiLeaks.” The Mill Valley resident (according to his Facebook profile) tweeted to followers: “You are the troops.”
If there’s any doubt which side Barlow is on, he helpfully provides a list of “mirror” sites that carry the material originally posted on the disabled WikiLeaks official site. “Let a thousand mirrors shine,” Barlow tweeted.
On the other hand, Larry Sanger, co-founder of San Francisco’s Wikipedia (no relation), says Assange is “an international outlaw,” and believes the New York Times and other papers that have taken feeds from WikiLeaks have “done something that could be really damaging to the United States.”
And so it goes.
Setting aside the debate on rights and wrongs, there is one thing of which we can be reasonably certain. Given what Rodric Braithwaite, a former British ambassador in Moscow, calls “the inherent openness of modern technology,” it’s difficult to see how the wave WikiLeaks represents can be stopped.
Indeed, the next tranche, Assange has promised, will hit U.S. corporations, beginning with a major bank. To follow: more from the financial industry, plus the energy and pharmaceutical sectors, he told Forbes.com this month. Based on his record, Assange probably isn’t just blowing smoke.
I’m not in a position to pontificate on the damage the leaks have supposedly done to U.S. foreign relations or to the practice of diplomacy as we know it. Nor, for example, whether information, contained in the cables, detailing potential terrorist targets around the world, endangers our war with al Qaeda. But I’m sure I’ve read about the Chinese government hacking into Google before.
Defense Secretary Robert Gates has called the current batch “embarrassing” and “awkward,” but not a “game changer.” The diplomatic fallout, he believes, will be “fairly modest.”
However, Gates was considerably angrier about earlier releases on the Iraq and Afghan wars, and with good reason. As noted by Harold Evans, former editor of the Times of London, “reckless disclosures” contained in 76,000 military documents about Afghanistan “identified dozens of Afghans credited with providing intelligence to the U.S. and thereby exposed them to a Taliban beheading.”
Evans was probably referring to a recent London Times report, which found WikiLeaks had not only identified individuals, but also their villages and their fathers’ names.
An example from the current release relates to a Los Angeles dentist, Hossein Vahedi, whose daring escape on horseback from Iran was recounted in one of the released cables. Vahedi, 75, lost his passport while visiting his parents’ graves and some family members in Iran in 2008.
“To protect his family and friends from retribution by the (government of Iran) after his absence was noted, he spoke to none of them of his escape plans,” the cable from the U.S. Mission in Turkey stated.
Well, now the government of Iran knows. “This is very bad for my family,” Vahedi told the New York Daily News when he learned the cable had been leaked. “How could this be printed?”
In addition to Assange and his enablers, the question might also be asked of others, including U.S. Army Pfc. Bradley Manning, now in solitary confinement at a military base in Quantico, Va.
Manning, 23, a reportedly unhappy low-level intelligence analyst in Iraq, has admitted packaging on rewriteable CDs and sending along to WikiLeaks more than 350,000 classified documents to which he had access on Pentagon-run computer systems.
“If you had unprecedented access to classified networks 14 hours a day, 7 days a week, for 8-plus months, what would you do?” Manning said in an instant message to a U.S. computer hacker.
Braithwaite called Manning’s alleged feat “an embarrassing technical failure” on the part of the Pentagon. “It is the job of governments to keep their secrets secret,” he wrote in the Financial Times.
The hacker, Adrian Lamo, who had done time for breaking into a New York Times computer, turned Manning in to the authorities as “an act of conscience.”
Blogging at sfgate.com/columns/bottomline. Facebook page at sfg.ly/doACKM. Tweeting @andrewsross. E-mail bottomline [at] sfchronicle [dot] com.
This article appeared on page D – 1 of the San Francisco Chronicle
