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Sorry, Time, Assange is a criminal, not a journalist

Over at Time Magazine, Michael Scherer takes issue with my column charging that WikiLeaks is a criminal enterprise and that its founder, Julian Assange, should be indicted for violations of the Espionage Act. Scherer writes:

To be clear, Assange’s crime, according to Thiessen, is intentionally receiving and republishing classified information, something that is done with some regularity in the United States by respectable and responsible reporters working for top flight news organizations. To adopt Thiessen's view, one would effectively have to reject the Supreme Court's opinion in New York Times Co. v. United States, the so-called Pentagon Papers case from 1971.

Scherer is grossly misinformed both as to the law and what constitutes “respectable and responsible journalism.”

First, the law. In 1971, the Supreme Court rejected the government’s efforts to suppress publication of the Pentagon Papers, but it explicitly stated that the decision to go ahead with publication of the classified materials could result in criminal prosecution. In a concurring opinion, Justice White, joined by Justice Stewart, wrote:

…terminating the ban on publication … does not mean that the law either requires or invites newspapers or others to publish them, or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment, but failure by the government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.

Justices White and Stewart further noted that:

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States, as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States, and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.… Section 793(e) makes it a criminal act for any unauthorized possessor of a document "relating to the national defense" either (1) willfully to communicate or cause to be communicated that document to any person not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it. The subsection was added in 1950 because preexisting law provided no penalty for the unauthorized possessor unless demand for the documents was made.

Assange could be indicted and prosecuted under these and other provisions of U.S. law. Indeed, the Obama administration is apparently considering indicting Assange, or may already have. The New York Times reported Friday:

A person familiar with the investigation has said that Justice Department lawyers are exploring whether Mr. Assange and WikiLeaks could be charged with inducing, or conspiring in, violations of the Espionage Act, a 1917 law that prohibits the unauthorized disclosure of national security information.

As to Scherer’s claim that Assange is doing nothing different from what is regularly done by “respectable and responsible reporters working for top-flight news organizations,” I suspect top-flight news organizations (including The Post and Time Magazine) would likely take issue with that statement. Certainly the news organizations that initially reported on Assange’s revelations do.

According to the Columbia Journalism Review, these news organizations recoiled when Assange referred to them as WikiLeaks’ “media partners.” New York Times reporter Eric Schmitt told CJR:

“I’ve seen Julian Assange in the last couple of days kind of flouncing around talking about this collaboration like the four of us were working all this together,” says Schmitt. “But we were not in any kind of partnership or collaboration with him. This was a source relationship. He’s making it sound like this was some sort of journalistic enterprise between WikiLeaks, The New York Times, The Guardian, and Der Spiegel, and that’s not what it was.”

Nick Davies of the Guardian agreed:

“There’s a really interesting collaboration between the three news organizations. But Julian, he’s a source,” says Davies.

Unlike reputable news organizations, Assange did not give the U.S. government an opportunity to review the classified information WikiLeaks was planning to release so they could raise national security objections (such as, for example, the fact that they contained the names of Afghan informants who are now being hunted and killed by the Taliban as a result of his disclosures). Providing such an opportunity for review is common journalistic practice. Indeed, when this newspaper recently put up its “Top Secret America” website, built entirely from publicly-available materials, it still allowed the U.S. government to review the site -- and even adjusted it to accommodate national security concerns. As The Post’s ombudsman, Andrew Alexander, wrote:

The Post allowed government officials to see the Web site in advance and express concerns. The editor's note said, “One government body objected to certain data points on the site and explained why; we removed those items.” … Out of what [Post Executive Editor Marcus Brauchli] termed a “public safety” precaution, The Post curbed the capabilities of its interactive Web site. For instance, the Google-powered mapping function limits the degree to which readers can pinpoint many locations.

Again, The Post went to these lengths for a website built entirely from open source information.

By contrast, Assange simply posted 76,000 un-redacted secret documents on the web, without giving the government a chance to review the documents. He even chided the New York Times for consulting with national security officials before publishing its news stories on the revelations, declaring:

We don’t see, in the case of a story where an organization has engaged in some kind of abusive conduct and that story is being revealed, that it has a right to know the story before the public, a right to know the story before the victims, because we know that what happens in practice is that that is just extra lead time to spin the story.

The Times found Assange’s approach so dangerous and irresponsible that the paper pointedly refused to link to the WikiLeaks site. In a statement to the Daily Beast, Times editor Bill Keller said this was intentional:

The Times -- in a note to readers explaining how we handled the secret archive -- made a point of saying that we did not link to the material posted by WikiLeaks. Since we normally do link to source data that we have used in our stories, we thought readers were entitled to know that the absence of a link was intentional, not some oversight, and to know the reason for it. In our own publication, in print and on our Web site, we were careful to remove anything that could put lives at risk. We could not be sure that the trove posted on WikiLeaks, even with some 15,000 documents held back, would not endanger lives. And, in fact, as we will be reporting in tomorrow's paper, our subsequent search of the material posted on WikiLeaks found many names of Afghan informants who could now be targets of reprisals by the insurgents…. His decision to release the data to everyone… had potential consequences that I think anyone, regardless of how he views the war, would find regrettable.

So let’s not pretend that Assange is a journalist who is simply doing what other responsible journalists have done for years. Even the news organizations reporting on his information say his conduct is highly irresponsible and do not consider him a fellow journalist.

By the standards of U.S. law -- including under the Supreme Court decision in the Pentagon Papers case -- he should be considered a criminal. He is in unlawful possession of classified information. He has released tens of thousands of documents, which the Taliban are using at this moment to target and execute Afghans who cooperated with U.S. and NATO forces. And he is threatening to release many thousands more, which could put more American, Afghan and allied lives at risk. His actions are a clear violation of U.S. law. He should face justice for these crimes.

By Marc Thiessen  | August 4, 2010; 12:38 PM ET
Categories:  Thiessen  | Tags:  Marc Thiessen  
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"By the standards of U.S. law -- including under the Supreme Court decision in the Pentagon Papers case -- he should be considered a criminal."

Thiessen, and his kind, threw US law out the window when they justified or rationalized, or whatever, torture. Sorry torture-boy, a journalist is not a criminal for doing what journalists should do.

Tell you what: if you are so concerned about leaks, how about you campaign to have fewer things classified. Most 'classified' items are nothing secret anyway; most of those that are worth reading merely enumerate the failures of the 'decision makers'.

But most important, don't bring up the law, considering how you, and your kind, trampled on it when you had the opportunity.

Posted by: AMviennaVA | August 4, 2010 12:51 PM | Report abuse

But most important, don't bring up the law, considering how you, and your kind, trampled on it when you had the opportunity.

Posted by: AMviennaVA


Does that mean his interpretation of the law is wrong, or you just don't like his former employer?

Posted by: bbface21 | August 4, 2010 12:57 PM | Report abuse

bbface21 @ August 4, 2010 12:57 PM wrote "
Does that mean his interpretation of the law is wrong, or you just don't like his former employer?"

It means that the alcoholic who is still drinking should not talk about the evils of drinking.

By the way, what do you think of Thiessen's retraction of his support for torture?

Posted by: AMviennaVA | August 4, 2010 1:38 PM | Report abuse

The interpretation of the law presented by Mr. Thiessen is accurate. Further, a careful timeline of Assange's statements publicly before & since reveal a close relationship he is now attempting to distance himself from, and lie about.

Australia is also exploring charges, and it's unlikely that there are many nations who would be willing to shelter Mr. Assange. It's possible Sweden might, since their servers are hosted from there. They're not a NATO member nation, and seem to care for little else than pirated software, porn, & smelly fish. Providing aid to terrorists isn't much of a throw from there.

Wikileaks supports imperialist heroin terrorists, the type of people who try to get their way by throwing acid in school girls faces. People who align themselves with this organization are the scum of the Earth.

As for Mr. Assange & his MIT cohorts, I hope someone crushes them, to paraphrase the Evil Elf.

Posted by: Nymous | August 4, 2010 2:17 PM | Report abuse

If we're gonna talk about crimes, let's talk about indicting Bush, Cheney, Rummy, and the rest of the neocons for war crimes and crimes against humanity.

No? Oh, sorry, forgive me for pointing out conservative hypocrisy (at the expense of redundancy).

Posted by: Garak | August 4, 2010 2:31 PM | Report abuse

"...he should be considered a criminal."

Translation: he's not a criminal, because we have no jurisdiction. This gout of nonsense should be interpreted as Thiessen's support for a world government.

Posted by: fzdybel | August 4, 2010 3:08 PM | Report abuse

Wikileaks transcends your petty governments'
interests. Using technology to anonymize
and provide reliability and permenance
allows people to reveal truth. What are you
afraid of? What are you hiding?

The threatened Afghanis are simply collaborators and spies for an invader, like some French with the Nazis. How
were those informants treated?

Folks in glass empires shouldn't fly drones.

Assange is a true hero. Obama should be hung.

Posted by: Major_Variola_ret | August 4, 2010 3:43 PM | Report abuse

Correct me.. but citizens of foreign countries can be tried for crimes in America... IF convicted... America will seek to have them extradited ...

Of course some countries will offer sanctuary to American criminals - think child-rapist Polanski.

Posted by: Petras123 | August 4, 2010 3:50 PM | Report abuse

"Assange simply posted 76,000 un-redacted secret documents on the web, without giving the government a chance to review the documents."

The originals were -- and presumably still are -- in the government's possession. The government may review them at its leisure.

My main issue with the Time paean was its passing reference to Assange's ability to go on at some legth about First Amendment principles, without sharing any of what he said.

Posted by: Ralphinjersey | August 4, 2010 4:00 PM | Report abuse

Assange is also an unmitigated scumbag. -

Posted by: DJOURNO | August 4, 2010 4:52 PM | Report abuse

The real question about this whole mess is ; How did a low ranking Private get access to all of this information?

Whether Assange disseminates the information or not, it still speaks volumes on how LAME security practices of the DOD are at the moment.

Posted by: sorxthan | August 4, 2010 8:25 PM | Report abuse

...and let's not pretend that Marc Thiessen is anything other than a mewling piece of crap who should shunned on the streets for being a war criminal.

Posted by: tblogg | August 5, 2010 1:56 AM | Report abuse

tblogg= another idiot who has no idea what indeed a war crime is, the history of war crimes (or anything else for that matter), or the Geneva Convention (or any other convention for that matter). You go imbecile!

Posted by: carinelliM | August 5, 2010 3:42 AM | Report abuse

Julian Assange should be targeted by a drone missile. I would gladly push the button.

Posted by: john_bruckner | August 5, 2010 6:58 AM | Report abuse

It's not even ironic that a "liberal" paper like The Post puts out Marc Thiessen's nonsense.

Firedoglake said it best:


Yes, former Bush administration speechwriter and current Washington Post columnist Marc Thiessen’s demand that“WikiLeaks Must Be Stopped” is, as his colleague Eva Rodriguez notes, “more than a little whacky.” But it’s useful, too, because an infatuation with the notion of using the military in non-military operations, particularly domestic ones, is a key aspect of the modern American right and of the rightwing authoritarian personality. Examining Thiessen is a good way to understand both.
Thiessen lays out his premise in his first sentence: “WikiLeaks is not a news organization; it is a criminal enterprise.” The premise is silly — unless the Washington Post for whom Thiessen writes and every other news organization that seeks and publishes leaks is a criminal enterprise, too (apparently Thiessen didn’t bother to read 18 USC 793, which he cites as the basis for his opinion about criminality, citing it instead just to sound authoritative). But as whacky as the premise is, it’s nothing compared to Thiessen’s conclusion.
Which is: that the government “employ not only law enforcement but also intelligence and military assets to bring [Wikileaks founder Julian] Assange to justice and put his criminal syndicate out of business.” This notion — that crime should be fought with the military — is part of the creeping militarization of American society. You can see it, too, in rightist support for military tribunals to replace civilian courts in trying terror suspects; in the increasing militarization of our border with Mexico; in the numbers of soldiers deployed in American airports and train stations; and in then Vice President Cheney’s attempt to have the military supplant the FBI in arresting terror suspects on American soil.
Thiessen tried to back away from his authoritarian argument when Rodriguez called him on it, but his disavowal rings false. First, Thiessen claims that when he said “military,” he only really meant the National Security Agency, because (after all!) the NSA is part of the Department of Defense. But the NSA, which specializes in signals intelligence, would logically fall under the “intelligence assets” Thiessen had already called for is his op-ed. If all Thiessen had in mind was the NSA, the call for “military assets” on top of “intelligence assets” would be redundant. Second, Thiessen claims he was also merely referring to the Defense Department’s Cyber Command. But if by “military assets” he meant only the NSA and the Cyber Command, why didn’t he just specify these two in the first place?

Regardless, the Cyber Command has on its website the following (style, grammar, and clarity-challenged)mission statement [cont'd.]

Posted by: GaryLA | August 5, 2010 12:57 PM | Report abuse

How exactly does one charge a non-US citizen who commits acts outside US territory with a crime?

Posted by: Martial | August 5, 2010 1:54 PM | Report abuse

>> Unlike reputable news organizations, Assange did not give the U.S. government an opportunity to review the classified information WikiLeaks was planning to release so they could raise national security objections <<

Oh really? From what I've read and heard in various interviews, Assange was quoted:

"We asked the whitehouse to provide resources to help us review the material and they did NOT respond"

We all know why you're so hellbent on Wikileaks being shut down by any means possible Mr. Thiessen, you're just afraid about what kind of scandalous information they might have and might release some day on the administration that you were part off ;-)

Posted by: guycarson | August 6, 2010 11:26 AM | Report abuse

In War Is A Racket, Butler points to a variety of examples, mostly from World War I, where industrialists whose operations were subsidised by public funding were able to generate substantial profits essentially from mass human suffering.


The work is divided into five chapters:

1. War is a racket

2. Who makes the profits?

3. Who pays the bills?

4. How to smash this racket!

5. To hell with war!

It contains this key summary:

"War is a racket. It always has been. It is possibly the oldest, easily the most profitable, surely the most vicious. It is the only one international in scope. It is the only one in which the profits are reckoned in dollars and the losses in lives. A racket is best described, I believe, as something that is not what it seems to the majority of the people. Only a small 'inside' group knows what it is about. It is conducted for the benefit of the very few, at the expense of the very many. Out of war a few people make huge fortunes."


In another often cited quote from the book Butler says:

"I spent 33 years and four months in active military service and during that period I spent most of my time as a high class muscle man for Big Business, for Wall Street and the bankers. In short, I was a racketeer, a gangster for capitalism. I helped make Mexico and especially Tampico safe for American oil interests in 1914. I helped make Haiti and Cuba a decent place for the National City Bank boys to collect revenues in. I helped in the raping of half a dozen Central American republics for the benefit of Wall Street. I helped purify Nicaragua for the International Banking House of Brown Brothers in 1902-1912. I brought light to the Dominican Republic for the American sugar interests in 1916. I helped make Honduras right for the American fruit companies in 1903. In China in 1927 I helped see to it that Standard Oil went on its way unmolested. Looking back on it, I might have given Al Capone a few hints. The best he could do was to operate his racket in three districts. I operated on three continents." The book is also interesting historically as Butler points out in 1935 that the US is engaging in military war games in the Pacific that are bound to provoke the Japanese.


"The Japanese, a proud people, of course will be pleased beyond expression to see the United States fleet so close to Nippon's shores. Even as pleased as would be the residents of California were they to dimly discern through the morning mist, the Japanese fleet playing at war games off Los Angeles."


Butler explains that the excuse for the buildup of the US fleet and the war games is fear that "the great fleet of this supposed enemy will strike suddenly and annihilate 125,000,000 people."


In his 1987 biography of Butler, Maverick Marine,[3] Hans Schmidt gave a brief review:

"Butler's particular contribution was his recantation, denouncing war on moral grounds after having been a warrior hero and spending most of his life as a military insider. The

Posted by: JahmMitt | August 7, 2010 1:42 AM | Report abuse

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