I used to practice divorce law. I had to deal with the emotional reactions to betrayal within a relationship. Men got violent when their wives cheat or want to leave them. Women got even. Strong, strong emotions based on an expectation of loyalty.
The same strong emotions are evident in politics today. Teabaggers are mad about Wikileaks for being disloyal and revealing limitary secrets. Liberals are mad at the Teabaggers for being disloyal and calling the President a Nazi.
Where do we draw the line between treason and free speech?
We draw the line at action.
As far as the law is concerned, you are allowed to talk about disloyalty all you want but not do anything about it. In a case protecting the Klan, of all people, the Supreme Court wrote:
The Court [previously] upheld the [Espionage Act] on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But [the prior ruling] has been thoroughly discredited by later decisions. [cite] These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
- Brandenburg v. Ohio, 395 U.S. 444, 447 (U.S. 1969)
The teabaggers have threatened violent revolution, but haven't really thought it through or done anything about it. NOT GUILTY. (I love the visual though - armies of seniors riding scooters down Pennsylvania Avenue lighting their loaded Depends undergarments and throwing them at the White House . . . )
So if the Klan is safe, the teabaggers are probably safe. But what about Julian Assange? Wikileaks didn't just express an opinion, it released secret documents stolen from the military - isn't that action?
Publishing information is action but it is also speech under the First Amendment. What becomes paramount is the intention of the person publishing the data. In order to be guilty under the Espionage Act the accused must be shown to have obtained or failed to keep secret information respecting the national defense
with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.In order to be guilty of wartime treason, Assange would probably be prosecuted under another law, 18 USC 2388, which prohibits the collection and dissemination of military information during wartime with the intent to "interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies." NOT GUILTY.
|Australian Julian Assange|
Assange was thinking ahead. Before posting the massive leak of military records, he contacted the military and asked which names they wanted protected. He did the same kind of thing with the last leak about Afghanistan by witholding documents he decided were too sensitive and might harm the US.
This shows that he never intended to interfere with the operation or success of the war effort. At least that's what I would argue if I were his lawyer. He is bolstering that defense by appearing in the media saying his intent, like Daniel Ellsburg in 1971, was only to draw attention to the atrocities of two wars that he was opposed to.Wikileaks also didn't steal the data. Very important. Someone else supplied it to them. That makes them journalists reporting on stuff, with all the free speech rights of the NY Times.
Journalists are very hard to prosecute:
according to First Amendment expert Jack Balkin of Yale University, blocking publication "is justified only where absolutely necessary to prevent almost immediate and imminent disaster."Finally, it appears, according to the Pentagon, that none of the information exposed by Wikileaks earlier this year has actually in fact hurt the military anywhere in the world. It's a little early, but I'm betting that there is nothing harmful in yesterday's batch of docs either.
It will be damned near impossible to prove that Assange intended to harm the military with documents that the military is willing to call harmless.
On the other hand, Assange has done the country a great service by telling the truth. We have been criminally insulated from the realities of these two wars. The military has candy-coated the casualty reports. Official casualties on our side do not include private contractors or foreigners employed by the military in the combat areas. The Government has never released any information about "enemy casualties" or civilian collateral damage.
When George Bush 41 boldly protected tiny oil-rich Kuwait by destroying Saddam's entire army and air force, CNN was allowed to show lots of mangled Iraqi equipment after the charred human bodies were removed. All we did was blow up a lot of tanks! We also got to see video game bombs go straight to their targets every time. Boom! Nothing but a building got hurt.
In reality, huge numbers of Iraqis, military and civilians, were injured, killed and displaced. Assange's message is that we hurt our own national integrity and build support for future acts of terrorism when we ignore or trivialize the unholy carnage going on in our name. Under Chapter VII of the United Nations Charter, to which the United States is a party, a nation's use of force is authorized under only two circumstances: in individual or collective self-defense, as outlined in Article 51, or pursuant to a Security Council resolution, as outlined in Article 42. - there was no resolution approving the second Iraq invasion or the Afghanistan invasion. Does anybody still believe Donald Rumsfeld's bullshit that the wars were necessary to our self defense? He's the one that was disloyal and cheated on us.