Shield Act Targets First Amendment Freedoms: Congressional Research Service Analysis

11 January 2011

By Stephen Lendman 

For decades, America's freedoms have eroded, notably post-9/11 with: 

-- a president declaring unconstitutional unitary executive powers to rule unilaterally; 

-- his successor embracing the doctrine; 

-- checks and balances and separation of powers virtually ended; 

-- passage of the USA Patriot Act; 

-- Homeland Security Act;  

-- other repressive laws;  

-- annual renewals of coup d'etat continuity of government (COG) authority to rule unconstitutionally, including by martial law;  

-- repressive national and homeland security presidential directives (NSPDs & HSPDs);  

-- unconstitutional executive and other unilateral presidential directives;  

-- the recent FCC ruling compromising Net Neutrality; and 

-- the proposed Shield Act - S. 4004: Securing Human Intelligence and Enforcing Lawful Dissemination Act. 

Called a "bill to amend section 798 of title 18, United States Code, to provide penalties for disclosure of classified information related to certain intelligence activities and for other purposes." 

Introduced on December 2, it was referred to the Committee on the Judiciary, not passed, but likely to resurface in the 112th Congress. 

HR 6506 is the House version, introduced on December 8, referred to the House Committee on the Judiciary and Subcommittee on Crime, Terrorism, and Homeland Security. It also didn't pass, but again very likely will resurface.  

On December 2, Senator John Ensign's (R. NV) web site headlined, "Bipartisan Ensign Legislation Goes after WikiLeaks by Amending Espionage Act," saying: 

He and Senators Joe Lieberman (I. CT) and Scott Brown (R. MA) introduced "legislation that will derail the very real threat posed to human intelligence sources by WikiLeaks." The Shield Act "would give the Administration increased flexibility to go after WikiLeaks and its founder Julian Assange by making it illegal to publish the names of human intelligence informants (HUMINT) to the United States and intelligence community." 

WikiLeaks published none. In fact, on October 17, Reuters reported Defense Secretary Robert Gates saying: 

Reviews thus far made "ha(ve) not revealed any sensitive intelligence sources and methods compromised by (WikiLeaks) disclosure(s)." 

Yet according to Ensign, Lieberman and Brown:  

"Julian Assange and his cronies, in their effort to hinder our war efforts, are creating a hit list for our enemies by publishing the names of our human intelligence sources. (This) legislation will help hold people criminally accountable who endanger these sources of information that are vital to protecting our national security interests. The reckless behavior of WikiLeaks has compromised our national security and threatened the safety of our troops overseas...." 

According to Attorney General Eric Holder: 

"To the extent there are gaps in the laws, we will move to close those gaps. The Shield Act will help close these holes in the law." 

Congressional Research Service Analysis 

On December 6, Congressional Research Service (CRS) legislative attorney Jennifer Elsea headlined, "Criminal Prohibitions on the Publication of Classified Defense Information," saying: 

Espionage Act provisions apply "to the receipt and unauthorized dissemination of national defense information, which has been interpreted broadly to cover closely held government materials related to US military operations, facilities and personnel. It has been interpreted to cover the activities of foreign nationals overseas...." 

However, "(t)he Supreme Court has stated....that the question remains open whether the publication of unlawfully obtained information by the media can be punished consistent with the First Amendment. Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected. Whether the publication of national security information can be punished likely turns on the value of the information to the public weighed against the likelihood of identifiable harm to the national security, arguably a more difficult case for prosecutors to make." 

Also at issue is whether information gotten and published relates to lawless government actions that create "clear and present danger(s)" for everyone.  Public interest/self-defense/criminal act disclosure arguments are reasons enough for disseminating such information. 

CRS also called prosecuting WikiLeaks unprecedented and challenging, both legally and politically, saying: 

"We are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it." At issue are First Amendment rights and "concerns about government censorship" of information the public has a right to know. 

Targeting Constitutional Rights 

The Shield Act targets whistleblowers, amends the 1917 Espionage Act, criminalizes free speech, and compromises the public's right to know how their elected officials govern. Suppressing truth is the first step toward tyranny. America is hurtling toward it as well as third world status and ruin. 

On December 7, the Electronic Frontier Foundation's (EFF) Shari Steele headlined, "Join EFF in Standing up Against Internet Censorship," saying: 

"The debate about the wisdom of releasing secret government documents has turned into a massive attack on the right of intermediaries to publish truthful information" the public has a right to know. "Suddenly, WikiLeaks has become the Internet's scapegoat," but what affects them harms everyone unconstitutionally. 

Everyone everywhere, including WikiLeaks, may publish truthful political and other information. Moreover, Internet users have a right to access it freely without censorship or other government interference. America's duopoly disagrees and may enact repressive legislation that criminalizes legitimate news reporting online, in print, or over the public airwaves. Other nations may follow in a systematic attack on fundamental freedoms. 

"Like it or not, WikiLeaks has become the emblem for one of the most important battles for our rights that is likely to come along in our lifetimes. We cannot sit this one out." The choice is simple: either freedom or tyranny, the latter very much out in front. 

Writing for Lawfare.com, Benjamin Wittes, senior Brookings Institution Governance Studies fellow, headlined, "Espionage Act Amendments," saying: 

The Shield Act "would dramatically expand the scope of 18 USC 798, which is now a relatively targeted provision criminalizing the disclosure or publication of cryptographic systems and communications intelligence. (The) Espionage Act is so vague (and) legal(ly uncertain (that) it tend(s) to inhibit its use." 

The Shield Act "offers the worst of both worlds. It leaves intact the current World War I-era Espionage Act provision (with its many problems) and expands its scope to the point that it covers a lot more than the most reckless media excesses." 

It will criminalize good journalism as "knowingly and willfully publishing material 'concerning the human intelligence activities of the United States or any foreign government' (that is in) no small part of what a good (publication) does."  

At issue most of all are fundamental constitutional rights. Earlier Supreme Court decisions addressed them. 

Two Notable Supreme Court Decisions 

During the 1919 Red Scare, California passed a criminal syndicalism law to restrict activities of the Industrial Workers of the World (IWW), an activist international union called the Wobblies. The statute prohibited advocating changes to the capitalist system of industrial ownership or political control. Under it, Charlotte Anita Whitney, a social activist, was charged and convicted, solely for her short-term Communist Labor Party (CLP) membership. 

In Whitney v. California (1927), the Supreme Court unanimously upheld California's statute based on its right to protect the public from violent political acts. However, Justices Louis Brandeis and Oliver Wendell Holmes contended that Whitney's attorneys should have argued for a "clear and present danger" test to distinguish between membership and dangerous action. They reasoned that Fourteenth Amendment Due Process protection and First Amendment speech and assembly rights superseded state regulation. 

Specifically they wrote: 

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears....Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty....only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such....is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it." 

In Brandenburg v. Ohio (1969), the Court overturned Whitney v. California and Ohio's Criminal Syndicalism statute, ruling that government cannot constitutionally punish abstract advocacy of force or a law violation. It can only do so in cases of directly inciting "imminent lawless actions." The "Brandenburg standard" thus affirmed the "clear and present danger" test, what Congress now wants to abolish unconstitutionally. 

On January 3, Law Professor Geoffrey Stone's New York Times op-ed headlined, "A Clear Danger to Free Speech," saying: 

"There are very good reasons why it makes sense to give the government so little authority to punish the circulation of unlawfully leaked information," including: 

-- "prejudic(ing) the interests of the United States does not mean that harm outweighs the benefit(s);" for example, exposing no Iraq WMDs; 

-- for political reasons, governments often overstate secrecy needs; none apply except in "clear and present danger" circumstances; and 

-- First Amendment rights are so fundamental that suppressing them must be a last, not first, resort, again only for "clear and present danger" reasons. 

In fact, the William H. Rehnquist Supreme Court, in Bartnicki v. Vopper (2001), held that anyone publishing information "from a source who obtained it unlawfully" may not be punished "absent a need....of the highest order....it would be quite remarkable to hold" that such individuals are criminally liable because the government didn't "deter conduct by a non-law-abiding third party." 

In fact, whatever's in the public interest should and must be published. It's the only way fundamental constitutional principles are protected, ones lawless House and Senate members want stripped. 

A Final Comment 

On January 8, a WikiLeaks statement said: 

"Today, the existence of a secret US government grand jury espionage investigation into WikiLeaks was confirmed for the first time as a subpoena was brought into the public domain," but remained sealed. 

It requires a San-Francisco-based micro-blogging site to hand over all details of five individual accounts and private Twitter messaging, including the computers and networks used. Assange and four others were named. Another report said he was offered a plea bargain if he cooperates. So far the subpoena's contents are sealed. Assange demands they be revealed, and he promised to fight the alleged charges. 

Administration and congressional members accuse WikiLeaks and Assange of compromising US national security and endangering the lives of human intelligence sources. They also say nothing of importance was published.  

In a December 7 op-ed in The Australian, Assange said: 

"It can't be both. Which is it? It is neither. WikiLeaks has a four-year publishing history. During that time we have changed whole governments, but not a single person, as far as anyone is aware, has been harmed. But the US, with Australian government connivance, has killed thousands in the past few months alone." 

In a letter to Congress, "US Secretary of Defense Robert Gates admitted (that) no sensitive intelligence sources or methods had been compromised by the Afghan war logs disclosure. The Pentagon stated there was no evidence the WikiLeaks reports had led to anyone being harmed in Afghanistan. NATO in Kabul told CNN it couldn't find a single person who needed protecting. The Australian Department of Defense said the same." 

No one since WikiLeaks began publishing was harmed. In contrast, Washington's imperial wars harmed millions at home and abroad with no accountability or acknowledgement by America's dominant media, portraying lawless conflicts as liberating ones. As a result, "truth emergency" conditions demand that whistleblowers and independent writers do what corporate-paid ones don't - their job.

Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening. http://www.progressiveradionetwork.com/the-progressive-news-hour/.

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