WikiLeaks may spawn new sedition act

The infamous Sedition Act, which criminalized speech critical of the federal government and which was passed by the Federalists during another of America’s undeclared wars (that time, against France), lasted only three years, from 1798 to 1801.  However, if the congressional critics of WikiLeaks founder Julian Assange have their way, a new and revised version of the Sedition Act may be in the offing.  

Thomas Jefferson, who became our third president in 1801, was not only a vocal critic of the Sedition Act, but pardoned those who had been punished pursuant to its terms.  Jefferson was, of course, right in his view of this law (which expired before its constitutionality could be determined by the Supreme Court).  His wisdom is well-needed today to quell the blood thirst of those clamoring for Assange’s head because of WikiLeaks’ release of cables and e-mails critical of and embarrassing to, the government. 

The primary vehicle these modern-day Federalists are looking to employ in order to criminalize the publication of information critical of government policies and actions is the venerable, but little-used 1917 Espionage Act.   

Many legal scholars, not prone to the pressures of public sentiment (which polls suggest strongly supports prosecuting Assange), correctly argue there simply is no proper basis for a case against the WikiLeaks founder under the Espionage Act, federal conspiracy laws, or other statutes.  In recent testimony before the House Judiciary Committee, several constitutional scholars eloquently presented the case for not prosecuting Assange; based on a fair reading of the First Amendment to the Constitution, current law, and sound policy. 

One of those who testified, the Hudson Institute’s Gabriel Schoenfeld, also noted in an interview with Politico that the government was “not going to be able to threaten or touch Julian Assange,” pointing out that there were clear conflicts with the First Amendment in steps the Justice Department appeared to be taking in an effort to construct a case against him. 

While some legal scholars, such as former Assistant Attorney General Kenneth Wainstein, encourage the government to prosecute Assange (based largely on a theory that his actions and motives are not those of a traditional journalist), the clear weight of constitutional law and policy argues to the contrary. 

A  Congressional Research Service report, “Criminal Prohibitions on the Publication of Classified Defense Information,” published earlier this month, notes that the relevant provisions in the Espionage Act most frequently cited as a way for the Justice Department to build a case against Assange, have almost exclusively been used to prosecute the individual(s) making the information available without authorization.  In this case, that culprit allegedly is Army Private Bradley Manning; who almost certainly deserves prosecution. 

Reading the Espionage Act the way Assange’s critics would have us do, would open a Pandora’s Box of virtually unlimited reach.  As Benjamin Wittes, a legal analyst from the Brookings Institution, explained on his blog, such interpretation would reach even “casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them – in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents.”  There wouldn’t be enough jails to hold us all. 

Yet such ridiculously broad expansion of federal law, simply to pillory a person who clearly delights in embarrassing the government, would seem to be what some in Washington, including Sen. Joseph Lieberman (I-CT) and Rep. Peter King (R-NY), just might have in mind.  And, unfortunately, there are many in the executive branch who appear to be moving in just such direction; actively constructing what may becomes a conspiracy case against Assange. 

We can only hope Jefferson’s wisdom and understanding will speak from across the ages to shine the bright light of constitutional truth on such dark plans.

-by Bob Barr, The Barr Code

77 comments Add your comment

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[...] This post was mentioned on Twitter by Evgeny Morozov, Bob Barr, unoblogger.com, antloewenstein, sarall and others. sarall said: WikiLeaks may spawn new sedition act: However, if the congressional critics of WikiLeaks founder Julian Assange … http://bit.ly/hpiyY8 [...]

Niels

December 27th, 2010
7:04 am

Even if the U.S. would change it’s laws, it would -not- provide legal authority over non-U.S. citizens which reside outside of American jurisdiction.

SimonPeter

December 27th, 2010
7:04 am

Australia has stood shoulder to shoulder with the USA in every conflict but Australians question the wisdom of going after journalist Julian Assange and the rhetoric being thrown around by some of the cosrser elements in the US media and political leadership. Hopefully the USA – our great ally wakes up from its madness and lets all this wash off its back without totally losing the plot.

You should check out the articles below and get a decent reading on the mood in Australia:

http://www.theage.com.au/national/editors-lambast-government-bid-to-stifle-information-20101214-18wtc.html

http://www.abc.net.au/unleashed

In every poll I’ve seen questioning the Australian public about journalist Julian Assange and his media organisation wikileaks the Australian public comes in at between 80% – 90% in favor of Assange and wikileaks. This not because Australians are against Uncle Sam but because Australians see it as so much spilt milk. If Government wants to keep secrets then it should do that – but the idea that it can then go after a news organisation for publishing spilt secrets smacks of a totalitarian state.

Australians love Uncle Sam but love our freedom even more.

paul

December 27th, 2010
7:19 am

If obtaining the secret documentation of other countries is illegal, then the cia has been involved in criminal activity ever since its inception.

[...] the Guardian. "I don't want to write this book, but I have to," Assange …WikiLeaks may spawn new sedition actAtlanta Journal Constitution (blog)Assange inks book deal to fund Sweden legal feesThe Local.seBofA [...]

[...] Wikileaks puede ser la excusa para una nueva ley de sedición en EEUU [eng] blogs.ajc.com/bob-barr-blog/2010/12/27/wikileaks-may-spaw…  por alehopio hace 2 segundos [...]

jconservative

December 27th, 2010
7:57 am

One of the problems the WikiLeaks data points to is the absolute nonsense the US uses in classifying data from State and Defense as “secret” to “top secret”. Any legislation by Congress should be along the line of reining in the tonnage of classified material now existing in US files.

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Chris

December 27th, 2010
8:04 am

Were classified documents stolen and subsequently published? Some law was broken and the person/people responsible should be prosecuted to the fullest extent of the law.

As for what Assange has published, though embarrassing has he exposed any illegal activity by the government? If so I have missed those news reports. The fact is that Assange has merely succeeded in forcing government to be less open and transparent (that is not to say our government is as open and transparent as it should be today anyway) and it is likely that Assange’s actions will likely cause corporations to be less open as well.

At the end of the day, Assange is little more than annoying, If he has evidence of criminal activity of members of the US government or American businesses then he is obligated to provide that to the appropriate authorities. If rather, all Assange has is honest albeit poorly worded assessments of diplomats in other countries, he is acting like a upset middle school child pitching a fit.

Student

December 27th, 2010
8:12 am

The US steadfastly refuses to sign UN agreements that would ever allow it’s soldiers to convicted of war crimes in another country where those crimes may be alledged or any other international court. Yet they are in the business of inventing new Law with the sole purpose of retrospectively charging an Australian citizen who has committed no know offences under US or any other law in his capacity as Editor in Cheif of WikiLeaks.

Are the Editors at CNN, The Guardian and ?De Speigal who also redacted and released the material also to be charged with sedition, only one of them is even a US citizen (guessing!)?

Student

December 27th, 2010
8:19 am

Chris, if you think there’s no implications of criminality, I suggest you find your way to wikileaks or the guardian and start reading. Even if there were no criminality (clearly there is) it demonstrates government appointed officials conspiring with corporations and other nations to hoodwink the public about their covert actions and act against their publicly stated policy in very contentious areas, like “shaping the battlefield”, killing environmental activists and stuff like that.

[...] See the original post here: WikiLeaks may spawn new sedition act | The Barr Code [...]

h

December 27th, 2010
8:54 am

The Sedition Act 1798 relected fear that the sort of instability of life and liberty that prevailed in revolutionary France might be broguht to the shores of America, and the prevalence of frankly Francophiliac DemocrATIC SOCIETITIES ALL OVER THE NEW AMERICAN STATES GAVE SOME SUBSTANCE TO THE FEAR , as did reports that some of the participants in the Whiskey Rebellion, who stymied collection of federal revenues in 1794, wore the French tricolor.

Now, it is the fear that the continuing unrest in the middle east would be spreading to the U.S.
Personally, I do not see any reason to fear wikileaks and the dissemination of information. I would see it as a refreshing alternative to the Sunday morning political commentaries with high ranking dignitaries that are forever disseminating information that they think the public should be privy to, all information that promotes themselves and their views.

Patriot

December 27th, 2010
9:13 am

The leaks so far show exactly why it is necessary for this type of behavior in our society. One set shows how the US government was threatening european governments if they didn’t embrace GMO foods regardless of the significant objections of their citizens. Criminal activity. I would think so. Bring to the government’s attention? Yeah right. This was being done just to support Monsanto and their desire to control the food supply on the planet. First we kill innocents to protect the profits of oil companies and then this. No wonder they hate us. Plenty of great leaks coming about Bank of America that will likely implicate Bernanke and the Fed. Certainly the government would take these seriously and act appropriately. Yeah right.

What these leaks are showing is that our government is the greatest criminal threat americans now face. You are not reading about these stories because even though the leaked information is out there, the main stream media is actively ignoring the facts at the behest of their government keepers. Only internet news services that actually employ investigative journalists are bothering to do the leg work and have the courage to publish the truth.

Keep going Wikileaks. You are the last great hope for exposing the government for the evil that it is.

Michael H. Smith

December 27th, 2010
9:19 am

Many gray areas and fine lines contained in this discussion. Upon reading several definitions of the word “sedition”, is anyone on these blogs wondering why the sound of a forceful knocking on everyone’s door is or has not already occurred?

Sedition is so broad in meaning that it is or should be useless, if we are in fact a Republic still living under the present Constitution as it is written. Sedition and all it’s applicable terms of description is better suited to the conundrum of “one man’s freedom fighter is the other man’s terrorist”, rather than best fitting a Constitution such as ours that intends to restrain government authority.

This group, Mr. Barr, which you are taking aim at might want to question just a few of the unintended consequences of their actions or shall they now charge the Declaration of Independence, the very cornerstone and foundation of this Republic upon which everything that is the Untied States of America rests, with an act of sedition for inciting the overthrow of government?

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

I will side ( as so often I do) with Thomas Jefferson on sedition.

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Perry Mason

December 27th, 2010
10:14 am

It was pure genius that he was originally arrested and held for being in posession of a broken condom while having sex.

Nick

December 27th, 2010
11:13 am

Mr. Barr, we don’t agree on many of our respective political opinions, but I find myself in complete agreement with you regarding this issue.

[...] Try as they might, US officials will not be able to convict WikiLeaks founder Julian Assange under current laws and will resort to passing new draconian measures, Barr explained in a recent column. [...]

jfan

December 27th, 2010
11:14 am

This is an example of the ridiculous financial/ethical state of the country right now. When will we wise up??? I suggest reading Wikileaks, seeing the movie “Stock Shock-The Short Sellling of the American Dream, and thinking outside the box for once. Wikileaks is everywhere and Stock Shock is on DVD at http://www.stockshockmovie.com.

carlosgvv

December 27th, 2010
11:29 am

There always have been and always will be people in our government who want more and more control and power. This proposed new version of the Sedition Act is just the latest example. Another factor at work here is the embarassment caused by these leaks and the desire for revenge by those embarassed. There are certainly no lofty reasons at work here.

[...] Try as they might, US officials will not be able to convict WikiLeaks founder Julian Assange under current laws and will resort to passing new draconian measures, Barr explained in a recent column. [...]

[...] Try as they might, US officials will not be able to convict WikiLeaks founder Julian Assange under current laws and will resort to passing new draconian measures, Barr explained in a recent column. [...]

Franklin

December 27th, 2010
12:01 pm

There’s no way this guy will be convicted of anything here in the US. If anything, shouldn’t they be going after the US personnel who gave him a lot of his information about the US?
To me that’s the treasonous part in all this hoopla. Mr. Barr, again, I have to agree with you!

[...] Original post: WikiLeaks may spawn new sedition act | The Barr Code [...]

[...] WikiLeaks may spawn new sedition act | The Barr Code. This entry was posted in Opinion, Politics and tagged America, Assistant Attorney General, [...]

[...] Assange under current laws and will resort to passing new draconian measures, Barr explained in a recent column. … those convicted were pardoned by President Thomas Jefferson. "Jefferson was, of course, [...]

betty boob

December 27th, 2010
12:14 pm

bob barr is a pea in the pod criminal just like the rest of usa govt. all lawyers belong at the oceans bottom. he’d be a good one to start with. whats the 1st Amendment have to say about that ya’ll?

Darwin

December 27th, 2010
12:16 pm

I can assure you that most of the people who would favor prosecution are Republican. Forget Lieberman. He’s only interested in supporting Israel.

Blah Blah Blah

December 27th, 2010
12:48 pm

Wow, Mr Smith! You talk ALOT and use unnecessary big words. Why not just say you agree w/ Mr. Barr and move on? This is a blog, not a doctoral dissertation. Geesh!

Would you be happy

December 27th, 2010
1:01 pm

Maybe you liberals would be happy if we brought all of our military personnel home, bring all the equipment home and put it on our boardes. Use them to protect our land only. Stop all money from leaving this copuntry for any reason. nGive every person in this country exactly the same thing and everybody would be the same. Havw one group of people controlling all of the media we see and hear. Controll all the books we read, tell us what food we eat and who lives and who dies. This is what all of you bleading heart liberal fools sound like.
Maybe this goverment need to get the guts to protect itself and do what it takes to shut down the terrost that do harm to this country and the people protecting it. This country started to go down hill when we let the liberals punish the goverment for Kent State. They should have went after the teachers that prometed that then.

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jconservative

December 27th, 2010
1:07 pm

WikiLeaks did not steal or take anything from US files. That was done by a US soldier now locked up. WikiLeaks published what it received.
The soldier will stand to a Court Martial.

To date no one has found a crime WikiLeaks has committed. That is why some are trying to write such a law.

The publication of “The Pentagon Papers” in 1971 was a bigger deal than this and resulted in no one going to jail. Ellsberg was indicted by a Federal Grand Jury but the case was thrown out by the judge.

Irony. “The Pentagon Papers” have been published several times over the years but are still classified as “Top Secret” by the Pentagon.

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Whiz

December 27th, 2010
2:01 pm

would you be happy is one dumbsumobitch.

ncgreybr

December 27th, 2010
2:54 pm

Would You Be Happy….

Do you even KNOW any liberals? I’m a “liberal” and none of those things come anywhere near describing me (or anyone I know). Maybe you should stop watching Beck and the mouth and get out a little more and widen your circle of acquaintances.

mike

December 27th, 2010
3:06 pm

Would you be happy…..

You must be one of those draft dodgers from way back who now call yourself a conservative. It is always some else’s job to protect this country for folks like you. And it is always the liberal’s fault. Blame the teachers at Kent State for some weekend warriors shooting down a bunch of unarmed college students. You are the first real evidence of the goobers coming out of the closet.

Michael H. Smith

December 27th, 2010
3:08 pm

Oh gee blah, forgive me. I didn’t realize the word counting syllable police were out on blog patrol.

[...] Sedition Acts May Be Enacted to Criminalize Unpopoluar Speech, Whistleblowers Bob Barr December 27th, [...]

Freedom of Expression

December 27th, 2010
3:46 pm

If the entire empire collapses on account of a few people with email and fax, then it was a weak empire to begin with. The first amendment was written to protect the likes of Wikileaks. Wikileaks is reporting what people on radio and tv should be reporting.

james

December 27th, 2010
3:59 pm

Chris, you idiot, if Wikileaks was so mundane and worthless why don’t you ask yourself why the USA government is trying to shut him down, why is the sedition act being considered, why politicians suggest Assange be assassinated and why a case of extradition being courted?

READ THE DAM WIKILEAKS MATARIAL you ignorant dude.

ncgreybr

December 27th, 2010
4:06 pm

Michael…don’t forget when you’re counting…a hyphenated word counts as two words.(grin)

Tracy

December 27th, 2010
4:24 pm

Last time the Republican were in control they got us the Patriot Act. I’m sure they’ll pass this if I regain the White House in 2012.

The Democrats want to violate my paycheck. The Republicans want to violate my civil liberties and freedom. Which one a person cares about less determines how they vote.

Would you be happy

December 27th, 2010
5:28 pm

Mike= Kent State started because of the liberal teaching of the teachers insighting the students to protest the war. The students were not unarmed. They started throwing rocks and bottles and bricks at the guardsmen. They were told for several days to end the protest, instead the crowds got bigger and it got to big for the local police to handle. This was the start of most of the liberal rebelions in this country. No I am not a draft dogger. I know too many liberal people to suit me. Most of them belive that they are the ones that should have the freedoms and everybody should give it to them reguardless the cost to the rest of the people. The solider that started the papers should be charged with treason and put in a fireing squad if found guilty. No person in this country should have the right to goverment secerits and information about other people in this country.

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Ken

December 27th, 2010
6:44 pm

These vermin don’t care about “the law.” They construct and read the law in order to suit themselves and their ambitions. Freedom doesn’t enter in to it.

Ken
http://www.LaserGuidedLoogie.com