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| CAWWW!!! |
The American House Judiciary Committee had a hearing on Wikileaks yesterday--and you can watch it too!
http://www.c-spanvideo.org/program/Legaland
or
http://www.gwu.edu/~nsarchiv/news/20101216/index.htm
But I doubt you want to, because it's amazingly, brutally dull. And long. And it's hard to listen to.
If you want the play-by-play notes, I'm your girl--though I reserve the right to editorialize. Also for my analysis to fall apart near the end, while my brain turns to mush by the repetition of the pronunciation of "Wikuhleaks".
Get to the goods after the jump.
-The chairman, Rep. John Conyers from Michigan, sounds remarkably sound and sane. He brings up the Pentagon papers, but also the 2004-2005 whistleblowing about Military Black sites' waterboarding--er, sorry, "enhanced interrogation", the warrantless wiretapping by Homeland Security, as examples of why it's important not only to maintain and encourage civil liberties and free speech, but why it's good for America. From the man himself:
"We've got low fences around a vast prairie, because the government classifies pretty much everything. We need high fences over a small graveyard."-Lots of scaremongering from the R-Texas camp about what "could be leaked in the future".
-William Delahunt invokes the question of "why is so much 'classified?', says there's far too much secrecy and classification in the executive branch and THAT puts America at risk, and drops the awesome quote that "Secrecy is the trademark of totalitarianism".
-Texas Ted Poe counters with "9/11". He seems to think that Bradley Manning leaked for "political gain", although what political gain an anonymous leak could possibly hope to get him, I have no idea. Also that the US is the "greatest, powerfulest nation that ever existed". Apparently the one with the best grammar, too.
In my head, I'm keeping score, and Delahunt is winning.
-U of Chicago Law Professor Geoffrey Stone calls the SHIELD act unconstitutional for the general public
When the government fails to keep its own secrets, it's not the newspaper's (or blogger's) fault for publishing them. Restrict the speech of government employees, but not the public.Overstatement of the dangers of disclosure happens a lot in times of anxiety--and restriction of free speech should be a very last resort. Give the government the right to prohibit leaks, and the public the right to publish them--keeps them both in check.
-Abbe Lowell (Litigation in the Espionage Act)--the Espionage Act was born flawed, and is fatally dated. "Headline news is not the time to pass a new criminal law"--make this slow. There's a need for strong criminal law against real espionage--properly classified national defense info being leaked with the intent to damage America or assist an adversary--but NOT when it's being leaked to help America, or expose a wrong it's doing. The Espionage Act is too vague, with things like "information relating to national defense" being so broad they're basically meaningless. Spying is different than leaking. Define what info should be classified and is dangerous to be leaked. Define how to decide between intent to harm America, or intent to whistleblow.
-Shenanigans on Kenneth Wainstein for accusing wikileaks of being completely different than traditional press, because of the same vague definitions of "investigative journalism" that he decries when used with "national defense information".
-Gabriel Schoenfeld (National Security Senior Fellow)-- "we as a country are remarkably well-informed. There's overclassification in national security. Leaks have become normal, informal process in news orgs--none before have resulted in legal proceedings. The New York Times (Swift monitoring program) has caused more trouble with the war against terror than Wikileaks has so far. We need to declassify, have a more rational secrecy policy, give whistleblowers legitimate avenues for change aside from the press. There is more prosecution of leakers now than in any other presidency, Wikileaks has shown "reckless disregard" and "indiscriminate" leaking. "The purpose of these leaks is to cripple our government".
-Stephen Vladeck: ways the espionage act is broken--it's for "classic espionage", it treads all over federal whistleblower laws. Needs a clear and precise intent requirement, a lesser offense for unauthorized disclosure, and decide if it includes press publication in good faith, with public good outweighing potential harm.
-Thomas Blanton, National Security Archives Director--the government ALWAYS overreacts to leaks, and they're absurd. It usually results in further classification, which buries the real secrets. This is not a balance between openness and security--openness CREATES security. We're in the middle of "Wikimania", and it will lead to "more heat than light"; in the midst of the anger that overwhelms actual thought about the issue, will it really address the problem? Will it reduce government secrecy, or add to it?
Another problem is the WikiMyths. There has not been a documents dump. There's no epidemic of leaks--they're all coming from Bradley Manning. There's no diplomatic meltdown, there's just rhetoric--it's awkward and embarrassing, but no meltdown--and it's probably in the American interest for more international leaders to be more transparent. There are no WikiTerrorists. I wish every terrorist would write the American ambassador two weeks before they did something and put regulators on the bombs they drop. The US government needs restraint. Leave the espionage act in moth balls--leave it alone. Maximum possible disclosure generates legitimacy in the system.
Wow I love that man.
Ralph Nader-- Look at historic cost-benefit analysis. The benefits of disclosure vastly outweigh the risks. He suggests the leaks are secondary--the real story is the ridiculousness of the lack of accountability for executive branch suppression of information. The very words that Hoder used to describe wikileaks could describe the Bush or Obama administrations, with greater risk. The instinct to prosecute is rational, but it could do more harm to national security than letting it go. Information is the currency of democracy, and secrecy is the cancer of democracy. Government bureaucrats and Corporate interests overreacting and damaging whistleblowing, free speech and the neutrality of the internet can easily happen if Congress and the press don't hold themselves in check.
He also talks, as Nader is wont to do, like a rambling crazy person. I started to picture him in a cowboy hat with wheat in his teeth and dirt on his boots--eventually my brain put edited a tooth-whistle into his speech, and he got entertaining again.
Question Time!
-deciding who is and isn't a journalist is a bad idea, and cannot be legislated. The function of gathering info from the gov and disseminating it to the public is classic journalism.
-Schoenfeld knows nothing about the redactions of the Cablegate documents, and therefore sounds to me like a big ol' silly. Or like most American major media.
-we've run amok classifying everything--this entire conversation is spinning wheels until we decide what's important information and what isn't.
-my favourite dude corrects Schoenfeld on the redactions--says a great deal of it is taking place, and Wikileaks is gearing to follow the lead of the media and looking more and more like a media organization. The First Amendment also protects SPEECH, not just journalism, which we seem to forget.
-Schoenfeld still disagrees that wikileaks is responsible, because of previous leaks about military operations.
-Nader calls in Ron Paul's five questions, Jack Goldsmith's 7 thoughts on Wikileaks, NYT ad "Wikileaks are not terrorists", Forbes magazine, and the support of Peru, Kenya, Australia, Switzerland, etc's exposure of corruption.
Recess! They're arguing out in the hallways, and probably drinking coke and eating cookies.
-Wainstein throws around football analogies about overclassification, says that wikileaks is "doing their best to get our secrets". More knowledge from the reservoir of wisdom, apparently. Wikileaks doesn't solicit. Derp etc.
-Bob Goodlatte (R-Virginia)--we have a lack of security safeguards for information, only exacerbated by technology. Greater openness is needed, more declassification. We want to make sure we're not suppressing info--but it's anxiety-inducing that an organization gets to act as the arbiters for what gets published and what gets redacted.
-a 23 year old shouldn't have the ability to "hack into" classified information. The US looks good because they're consistent with their foreign policy in the cables.
Not that Bradley Manning hacked into ANYTHING, he was simply allowed in there as an intelligence worker. But y'know. Semantics.
-If we're focusing on leakers, we need to look at current whistleblower laws and strengthen them especially as they apply to the intelligence community. If we can't protect whistleblowers, the government is on shaky ground. Also we need better procedures to report the bad shit we see happening, to facilitate whistleblowing without fear.
-Wikileaks disclosures damage the kind of policies that inflame opinions AGAINST us--things like American unethical activity. In short, they hold us to the rule of law, making us better.
-"The ship of State is very unusual, as it leaks from the top". There are good leaks and bad leaks.
-Security of information is getting crazier as we get more scared. Bring back the civil service oath of office.
-No human being is really confident to know the full extent of the damage of these leaks--therefore Assange can't possibly predict the damage. In light of that, should we establish a lower burden for prosecutors to prove damage? It'll take a long time to see if there's damage--can we find a way to punish people before the damage comes down?
-There is benefit to public access--it's always the best thing. "Sunshine is the best disinfectant". Also, the fact that congress is sitting down to talk about this is a benefit of the leaks; it sponsors public discourse.
-Some feel that government is the problem--but many of those are simultaneously hacking away at free speech. (tea partiers?)
- What we do here has implications all over the place. Yes or no: is an ISP a recipient for information for the purposes of criminal prosecution? Well, it's not a crime to receive, but it IS a crime to retransmit.
Apparently by talking about any of these I might be breaking the law. But prosecuting them is unconstitutional. And maybe not, because maybe they're a conduit contractor. Crazy things happen when people are scared. (That's not even a paraphrase, Gonzales from Texas said it.)
-Intent is the key. Tighten intent, and it'll make it easier to stop leaks. But tightening intent is gonna be a nightmare--do we assume that everyone's threatening the US? Apparently the context, the circumstances, and the issues of bad faith and good faith in white collar crime will make the difference--possibly with an additional statute for recklessness.
-"The constitution is not a suicide pact" is wartime--but now, wars are not officially declared, and are often indefinite. That changes everything, because wartime changes everything.
And then the chairman closes the session, and I go to wipe up my bleeding brain.
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