Sheridan: Con-Law

THINGS TO LOOK AT LATER

David Brooks, an Op-Ed columnist for the NYT, has written a column today in which he confers a so-called Sidney Award of his own devising to writers who've come up with articles he likes.

This year's take includes Michael Lewis for "Beware of Greeks Bearing Bonds," and by someone who advises West Point cadets how to become leaders w/o becoming corporation men in the process, the corporation being "Big Army," of course.

Since I haven't time right now to read these articles (it's 12/24/2010 and I'm about to start thinking about doing some Christmas shopping today...why wait until last minute?) I thought that I'd post the link here (the column links to the articles) so that we can return to it at a more convenient time.

Merry Christmas!

BUSH V. GORE: TWO TAKES: CONSERVATIVE, LIBERAL

George Will is a conservative columnist.  His take on Bush v. Gore (2000) ten years later.  Note his willingness to blame the individual voter for screwing up the election, rather than, say the people who designed the ballot, the people who counted the ballots, and the legal system which tripped all over itself trying to twist the law into an outcome it preferred.

A decade after Bush v. Gore

By George F. Will
Sunday, December 12, 2010; A25 

 

The passions that swirled around Bush v. Gore, the Supreme Court case that ended 10 years ago Sunday, dissipated quickly. And remarkably little damage was done by the institutional collisions that resulted when control of the nation's supreme political office turned on 537 votes out of 5,963,110cast in Florida.

Many controversies concerned whether particular votes could be said to have been cast properly. Chads are those bits of paper that, when a ballot is properly cast by puncturing spots next to candidates' names, are separated from the ballot. In Florida, there were "dimpled" chads that were merely dented and "hanging" chads not separated from the ballots. Furthermore, there were undervotes (ballots with no vote for president) and overvotes (votes for two presidential candidates) and ill-designed (by a Democrat) butterfly ballots.

The post-election lunacy could have been substantially mitigated by adhering to a principle of personal responsibility: Voters who cast ballots incompetently are not entitled to have election officials toil to divine these voters' intentions. Al Gore got certain Democratic-dominated canvassing boards to turn their recounts into unfettered speculations and hunches about the intentions of voters who submitted inscrutable ballots. Before this, Palm Beach County had forbidden counting dimpled chads.

Once Gore initiated the intervention of courts, the U.S. Constitution was implicated. On Nov. 7, Gore finished second in Florida's Election Day vote count. A few days later, after the state's mandatory (in close elections) machine recount, he again finished second. Florida law required counties to certify their results in seven days, by Nov. 14.

But three of the four (of Florida's 67) counties - each heavily Democratic - where Gore was contesting the count were not finished deciphering voters' intentions. So Gore's lawyers persuaded the easily persuadable state Supreme Court - with a majority of Democratic appointees - to rewrite the law. It turned the seven-day period into 19 days.

Many liberals underwent instant conversions of convenience: They became champions of states' rights when the U.S. Supreme Court (seven of nine were Republican appointees) unanimously overturned that extension. But the U.S. high court reminded Florida's court to respect the real "states' rights" at issue - the rights of state legislatures: The Constitution gives them plenary power to establish procedures for presidential elections.

Florida's Supreme Court felt emancipated from law. When rewriting the law to extend the deadline for certification of results by the four counties, the court said: "The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle." But under representative government, the will of the people is expressed in statutes. Adherence to statutes - even adherence stigmatized as "hyper-technical" - is known as the rule of law.

In the end, seven of the nine U.S. Supreme Court justices (and three of the seven Florida justices) agreed on this: The standardless recount ordered by the Florida court - different rules in different counties regarding different kinds of chads and different ways of discerning voter intent - violated the U.S. Constitution's guarantee of equal protection of the laws.

Two of the seven U.S. justices favored ordering Florida's court to devise standards that could pass constitutional muster and allowing the recount to continue for six more days. Five justices, believing that the recounting had become irredeemably lawless, ended it.

Once Gore summoned judicial intervention, and Florida's Supreme Court began to revise state election law, it probably was inevitable that possession of the nation's highest political office was going to be determined by a state's highest court or the nation's. The U.S. Supreme Court was duty-bound not to defer to a state court that was patently misinterpreting - disregarding, actually - state law pertaining to a matter assigned by the U.S. Constitution to state legislatures.

Suppose that, after Nov. 7, Florida's Legislature had made by statute the sort of changes - new deadlines for recounting and certifying votes, selective recounts, etc. - that Florida's Supreme Court made by fiat. This would obviously have violated the federal law that requires presidential elections to be conducted by rules in place prior to Election Day.

Hard cases, it is said, make bad law. But this difficult case seems to have made little discernible law. That is good because it means no comparable electoral crisis has occurred. What the Supreme Court majority said on Dec. 12, 2000 - "our consideration is limited to the present circumstances" - has proved true. And may remain true, at least until the next time possession of the presidency turns on less than one ten-thousandth of a state's vote.

***

Contrast George Will's take with that of New Yorker Magazine Jeffrey Toobin's comment in the Dec. 06, 2010 issue.  Toobin is the legal commentator and a liberal:

***

COMMENT

PRECEDENT AND PROLOGUE

by Jeffrey ToobinDECEMBER 6, 2010

Momentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first ten years after Brown v. Board of Education, the 1954 decision that ended the doctrine of separate but equal in public education, the Justices cited the case more than twenty-five times. In the ten years after Roe v. Wade, the abortion-rights decision of 1973, there were more than sixty-five references to that landmark. This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.

Both sides had their reasons for consigning the decision to history and leaving it there. In his concession speech on the day after the decision, Al Gore said simply, “It’s time for me to go.” He meant it, and he left politics for a life of entrepreneurship and good works. George W. Bush, for his part, found little reason to dwell on the controversial nature of his ascension to office, and in his memoir, “Decision Points,” he devotes less than a page to the Supreme Court decision. (“My first response was relief,” he writes of his reaction.) In public appearances, Antonin Scalia, a member of the majority in Bush v. Gore, regularly offers this message to people who question him about the decision: “Get over it!”

Even at the time, Bush v. Gore was treated as a kind of novelty item, a one-off decision that applied only to the peculiar facts then before the Justices. The majority itself seemed to want it that way. In the most famous sentence from the decision, the Justices wrote, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” (Unlike most weighty decisions, Bush v. Gore had no single author and was delineated “per curiam,” or by the Court, a designation the Justices usually reserve for minor cases.) In light of all these admonitions to leave the case be, might getting over it be the best advice?

Actually, no. To return briefly to the distant world of chads, hanging and otherwise, it’s worth recalling what Bush v. Gore was about. The pervasive uncertainty about the results of the election in Florida—at the time, Bush led by five hundred and thirty-seven votes out of nearly six million cast—prompted the Florida courts, interpreting Florida election law, to order a statewide recount of all undervotes and overvotes; that is, ballots that indicated no Presidential preference or more than one. (Chads were the tiny paper rectangles that voters were supposed to push through punch-card ballots.) That recount had already begun on Saturday, December 9th, when five Justices—Scalia, William H. Rehnquist, Sandra Day O’Connor, Anthony M. Kennedy, and Clarence Thomas—issued a stay, barring the Florida authorities from continuing their labors. Three days later, the same five issued the per-curiam decision that stopped the recount once and for all.

What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preëminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles. The Supreme Court stepped into the case even though the Florida Supreme Court had been interpreting Florida law; the majority found a violation of the rights of George W. Bush, a white man, to equal protection when these same Justices were becoming ever more stingy in finding violations of the rights of African-Americans; and the Court stopped the recount even before it was completed, and before the Florida courts had a chance to iron out any problems—a classic example of judicial activism, not judicial restraint, by the majority.

Bush v. Gore would resonate, in any case, because the Court prevented Florida from determining, as best it could, whether Gore or Bush really won. (Recounts of the ballots by media organizations produced ambiguous results; they suggest that Gore would have won a full statewide recount and Bush would have won the limited recount initially sought by the Gore forces.) But the case also represents a revealing prologue to what the Supreme Court has since become. As in Bush v. Gore, nominally conservative Justices no longer operate by the rules of traditional judicial conservatism.

The Court is now led, of course, by Chief Justice John G. Roberts, Jr., who was appointed by Bush in 2005 (and who, in 2000, travelled to Florida as a private lawyer working on Bush’s behalf). Under Roberts, the Court has continued to use the equal-protection clause as a vehicle to protect white people. In 2007, in Roberts’s first major opinion as Chief, he struck down the voluntary school-integration plans of Seattle and Louisville, which had been challenged by some white parents. Likewise, under Roberts the conservatives have abandoned their traditional concern with states’ rights if, for example, the state is trying to protect the environment. In another 2007 case, Roberts, Scalia, Thomas, and Samuel A. Alito, Jr. (who replaced O’Connor), argued in dissent that states had no right to force the Environmental Protection Agency to address the issue of global warming.

The echoes of Bush v. Gore are clearest when it comes to judicial activism. Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures. Brandishing a novel interpretation of the Second Amendment, the Court has either struck down or raised questions about virtually every state and local gun-control law in the nation. In Citizens United v. Federal Election Commission, decided earlier this year, the Court gutted the McCain-Feingold campaign-finance law in service of a legal theory that contradicts about a century of law at the Court. (Citizens United removed limits on corporate expenditures in political campaigns; the decision is, at its core, a boon for Republicans, just as Bush v. Gore was a decade ago.) When the Obama health-care plan reaches the high court for review, as it surely will, one can expect a similar lack of humility from the purported conservatives.

Many of the issues before the Supreme Court combine law and politics in ways that are impossible to separate. It is, moreover, unreasonable to expect the Justices to operate in a world hermetically cut off from the gritty motives of Democrats and Republicans. But the least we can expect from these men and women is that at politically charged moments—indeed, especially at those times—they apply the same principles that guide them in everyday cases. This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor.  ♦

ILLUSTRATION: TOM BACHTELL

***

Toobin puts the blame squarely on certain of the justices of the Supreme Court who indulged their conservative political passions, as though these were somehow different from their interest in wielding the tools of law.  To what end, the tools of law?  How about in the interest of achieving their preferred political outcome, the election of a conservative president, George W. Bush, over the liberal Al Gore.

No way the five were going to allow a liberal president to pack the Court with liberals, so they did what they had to do, knowing full well that we weren't going to start a revolution, any more than 1.3 billion Chinese are going to start a revolution just because they're living under a totalitarian government.

 

 

 

 

LIU XIAOBO: ACCEPTS NOBEL PEACE PRIZE IN NAME OF JUNE 4 MARTYRS

Reuters news service has this precis of Liu Xiaobo.

The People's Republic of China seems to be doing everything in its power, by jailing Mr. Liu, arresting his friends, and harassing his supporters, not only to show the worst of its character but to turn him into a martyr for the cause of freedom, another Nelson Mandela.

Pity.

I don't see how the PRC can expect to be awarded hosting privileges at such major events as soccer's World Cup, or the Olympic Games, so long as it continues to deny its citizens the right to protest political conditions without the threat of such punishment.

June 4, 1989 was just a foretaste of upcoming upheavals if the Party continues to insist on maintaining its monoploy on power indefinitely.  The tighter it hangs on the shakier it gets.  China is a drowning man with a death grip on a straw.

How badly did China mishandle the affair involving the award of the Nobel Peace Prize to Mr. Liu?

See this BBC comment.

Meanwhile, the Nobel Committee, in presenting the award, announced, as reported by the Jerusalem newspaper Ha'aretz, that Liu, who was prevented from being present by being held in prison by the PRC for being outspoken, had sent word that he was pleased to accept the award in the name of the souls who were lost on June, 04, 1989, at Tiananmen.

 

INTERNATIONAL NORMS, BASIC FREEDOMS, LIU XIAOBO

One of the Wikileaks of email traffic from our State Department diplomats shows, according to NYT, that the United States protested the jailing of the human rights advocate and Nobel Peace Prize winner Liu Xiaobo,  by China. 

Our protest was based on the idea that China was failing to adhere to international norms of human justice, you know, your basic freedom of expression, right to protest against totalitarian government, etc. 

The United States is telling China that some values are universal, regardless of whether in English, Chinese, or other.

I mention it because a distinguished conlawprof asked, eyes wide open, whether Julian Assange should have the benefit of our First Amendment, were he prosecuted here for disseminating our state secrets, the ones stolen by one of our soldiers, allegedly, and published on Wikileaks, considering that Assange is Australian and was operating out of Sweden.  He has not been mentioned as having procured the theft, at least not so far.  In the view of this writer, Assange is entitled to full First Amendment protection as the mere disseminator of beans spilled by someone else acting independently of him.  If he stole the beans himself, see the Daniel Ellsberg case, aka the Pentagon Papers case, New York Times v. United States, cited provided in the previous post.  See also Bartnicki v. Vopper, ditto.

 

U.S. Speaker of the House, Nancy Pelosi, of my home town, San Francisco, is traveling to Oslo to witness the award of the Nobel Peace Prize to Chinese hero Liu Xiaobo.

Why Speaker Pelosi and not Pres. Obama or V.P. Joseph Biden?

Perhaps because she has more balls than all of them.

'Ray, Nancy.

She represents the best that America has.

In the last election, last month, the GOP and Tea Party Movement people such as Sarah Palin, who couldn't carry Speaker Pelosi's briefcase, demonized Pelosi.  She's that far ahead of the rest of the country, which is struggling against catching up.  We've got the 19th Century of America fighting tooth and nail against the 21st Century view.

Pelosi is a transplant from Baltimore, pronounced something like Bawl'-maw.  Her father was mayor there.

I'm from Staten Island, New York.  My father was universal ruler there, to the extent Mom would let him.

***

Friday, Dec. 10, 2010

The BBC has this report on the award of the prize to Liu Xiaobo and China's reaction to it.

My guess:  The more the Communist Party tries to maintain central control via a monopoly on political power the more likely it will fail, preceded uprest and upheaval.  Dynasties have a way of falling in the Middle Kingdom, this one being no different.

See Timothy Wu's "The Master Switch" for a discussion of large business monopolies which have come and gone.  Their trip to center stage always proves to be quite temporary.  New emperors in China, he points out, have always re-written history to show that the new dynasty enjoys the Mandate of Heaven.

However, those opposed to the regime often see signs in the wind showing that the dynasty either never had the mandate or is in process of losing it.

The people of China are anything but stupid.  There is constant turmoil throughout the land, as the have-nots lose out to those who've managed to scramble on to the gravy train.  Eventually the bowl will overturn.  This is China's greatest fear, and the reason why the Party makes every effort to stamp out the merest hint of dissent. 

Nobel  prizes, in any field, which China has long coveted as signs of legitimacy in the world both in and outside China, have long been coveted.  Newspapers in China have reportedly discussed the possibility or hope for a Nobel award indicating awareness of the prestige accorded the event.  Now, because the award to a dissident splashes egg on the face of China, or the Party, it is acting as though the prize had become sour grapes.

Someone has posted a comment to the previous edition of this post.  It's a bit too cryptic for me, I'm afraid.  My guess is the s/he is is asking whether, if I'd like to see visitors to the U.S. from China, why do I post such criticism.

I post such criticism because I have such high hopes that China will become a real leader in the field of human rights, rather than an example of a totalitarian power tramping on them.  China has 1.3 billion people who have finally, after so many years, achieved economic freedom of a sort, sufficient to pull China out of its backwards swamp.  How much more impressive China's achievement should it allow the political freedom needed to make the economy really work right.

 

 

 

NO HONORS FOR ASSANGE

A devoted reader who insists on anonymity asks whether my two most recent posts on Julian Assange don't contradict each other.

Specifically, he writes:

But the views of your posts conflict with each other, at
least comparing Dec 7 and Dec 8.  Specifically, 'IP terrorist'?

There's probably one position that ties the theoretical underpinnings
of each of these posts together.  Would you mind describing that?

I'm reminded of the words of Walt Whitman, who wrote:

Do I contradict myself?
Very well then I contradict myself,
(I am large, I contain multitudes.)

Walt Whitman, "Song of Myself"
US poet (1819 - 1892)

I don't however, believe that this will satisfy Mr. Devoted Reader.  So, let me give it a go.

First:  Thank you for giving me the benefit of assuming that there's likely a theoretical underpinning that reconciles the apparently conflicting views. 

I'm not sure that the two posts contradict one another.  If they do, I would take it as a sense of evolving views based on newly reported behavior of Mr. Assange.

Initially, it seemed to me that he did me and my fellow citizens a favor by reporting what our government was saying internally.  Embarrassing to various officials, perhaps, but so were the Pentagon Papers.  The latter showed our government to be lying to us as to why we needed to invade Vietnam, which hadn't invaded us.  We lost 58,000 American soldiers in the process of killing 3,000,000 Vietnamese, most of whom wouldn't have died absent our help.  We dropped more bombs on that poor country than we did during all of World War II, which includes both Germany and Japan, not couting Hiroshima and Nagasaki.

So, Daniel Ellsberg, who played the role of burglar or thief in the name of the greater good, stole the Pentagon histories in 1971, which revealed the truth that the government had been lying to us and the world for years, turns out to be the hero of the story when the wool is finally pulled from our eyes, giving new impetus to the movement to end the war, which finally occurs in 1975 with our withdrawal under fire.  We lost that war. We don't much like admitting fault and fallibility, but there you are.

Is Mr. Assange another Daniel Ellsberg?

I would like to think so, but I'm not quite sure.  I doubt it.  Upon reflection, I think not.

His reaction to being arrested by Britain on a sex charge out of Sweden, a bogus sex charge, imho, has been to hack MasterCard and threaten Bank of America and one of its top officers.  I prosecuted rape cases for years and never saw anything that looked like his, granting nevertheless that the females involved had grounds to be upset and to seek police assistance.  That certainly has grown far beyond the bounds of imagination, which isn't to say that it is wrong.  They have a beef and it will have to be heard where we usually hear otherwise irresolvable conflicts, in a court of law.

Mr. Assange's post-arrest behavior is not heroic in my book.  Whatever heroic posture Assange may have adopted in his initial outpourings in favor of revealing the truth of how we act in the world has been contradicted (speaking of self-contradiction) by his threats to blackmail (meanng to extort, that is, to gain alleged consent under duress, that is, the infliction of the pain of illegal further misconduct)

That makes Mr. Assange a terrorist.  He doesn't use improvised explosive devices (IEDs) in the high explosive sense, or threaten to self-destruct taking innocent lives along with him, a la the suicide bombers we've seen too much of, but he threatens to take down innocent commercial sites, such as MasterCharge and BOA, unless we and our allies truckle under to his threats.  This is sabotage.

So he is no friend, such as Ellsberg was, of America.  Elsberg didn't threaten to pull down the temple, in Samson fashion.  Ellsberg was trying to bring America to its senses.  Assange isn't, as far as I can see; he just seems out to harm America until we jump to his tune.  Incidentally, Ellsberg was reported yesterday as speaking out in support of Assange.  I think he's made a mistake.  He was lucky the first time.  He was prosecuted for the theft but the government, in its pro-war zeal, burglarized the office of Ellsberg's psychiatrist, a so-called 'black bag job,' and got caught.  The judge threw out the case on grounds of 'outrageous governmental conduct.'  Tell your shrink not to keep records.  After that incident, some stopped keeping sensitive records.

Going back to Assange's release of stolen military and state department conversations:  Are these truly harmful to the U.S.?

I doubt it.  Embarrassing, surely, to those in the military and State Department who spoke, but not to the country as a whole.  It's good to see our military and State Department people being as brainy as they show themselves to be.  They're dealing with excited, distorted personalities in many cases, people who have their own personal and national interests at heart, which is their right.  Nevertheless, it's our job to herd these cats into some semblance of order for the sake of our own interests, which in many cases coincide with theirs.  We do have a global economic system that needs constant attention.  Mr. Assange's threats work against that.  Threats to MasterCard and BOA undermine that.  It's one thing to tell the government that it is  wrong-headed and quite another to tell MasterCard or BOA that because the United States is engaging in wars Mr. Assange opposes that they must be brought down in retaliation.  It seems crazy, and I see the method to the madness, but that doesn't make it any more than terrorism.

So, is Mr. Assange a First Amendment hero?  Or an international terrorist.

Just because a speaker or publisher enjoys First Amendment protection doesn't make what he says wonderful and good.

We protect Nazis who march through Skokie, the home of Shoa-surviving Jews.

That doesn't make the Nazis any better than Nazis.  Nor are they First Amendment heroes.  They're fools who happened to live in the one place where they have a reasonable shot at being protected despite their foolishness.

Mr. Assange is a loose cannon and more than likely a fool.  I haven't seen him take a principled stance against our involvement in either Iraq or Afghanistan.  I could offer reasons of my own for winding up our involvement in both countries:  We entered Iraq under false pretenses, thus providing a magnet for insurgents from all over the Muslim world; Osama Bin Laden, the international terrorist behind 9-11, is by all accounts no longer in Afghanistan, having fled to Pakistan where our alleged ally, Pakistan, shelters him. 

But Mr. Assange doesn't say this.  Nor do his disclosures help advance the position that we should depart sooner rather than later. 

We've already turned Iraq over to the Iraqis and have been withdrawing troops.  We've already announced that come July, 2010, we're gone from Afghanistan. 

So what is Assange trying to prove?  That he can hack?  That he can publish what others hack?

We may afford him First Amendment protection, giving him a shield, but that is not the same as pinning a medal of honor on him.  He's just lucky that we offer the free speech and publication protections that we do.

I pose the following hypothetical:

Suppose a private American citizen hacks into a military or foreign office, or intelligence bureau of Russia and publishes the results on the Internet, to the outrage of Russia and its leadership.  Russia indicts.  Do we extradite the American to Russia for the crime of publishing Russian state secrets?  Assume we have an extradition treaty with Russia.  I doubt that we do.

***

I posted the following two items to a group of Constitutional Law professors with whom I occasionally discuss matters of interest.  Not too many replies, so far. They usually seem not to want to speak up until seeing how the wind is blowing, I take it.

1.    Bartnicki v. Vopper was certainly the case whose name I couldn't recall.  Another contributor kindly mentioned off-list that we have a Trade Secrets Act.  It was mentioned in one of the Times articles today, but I overlooked mentioning it.  That would protect privately owned information.  Government owned is another story.

Britain has an Official Secrets Act; I wonder which, and whether, any of its provisions might pass First Amendment muster.  My guess is that Assange gets quite a bit of protection, no matter what the statute, existing or imagined, from  New York Times v. United States, based on dissemination alone.  Assange's nationality, incidentally, is Australian, apropos of I don't know what, except that this takes treason out of the equation, to the extent it's been mentioned as to him.  There have been calls to eliminate Mr. Assange, as in "with extreme prejudice."  The law firm for NYT in 1971, when it decided to publish Pentagon Papers, withdrew support on grounds that publication was disloyal, or worse, opening the way for someone named Floyd Abrams (and the late Alexander Bickel) to represent, notably. See Abrams' book, Freely Speaking.

Suppose a private American citizen hacks into a military or foreign office, or intelligence bureau of Russia and publishes the results on the Internet, to the outrage of Russia and its leadership.  Russia indicts.  Do we extradite the American to Russia for the crime of publishing Russian state secrets?  Assume we have an extradition treaty with Russia.  I doubt that we do. 

Or do we refuse and raise high the (American) flag of free speech?

I'm betting on the latter.

***

This was posted a day before the one above:

2.    According to current news, Julian Assange has been ordered held w/o bail in Britain, pending a hearing on extradition, based on the alleged seriousness of what appears to be a form of battery (sexual) charges filed against him in Sweden.  Two young women have come forward, according to a report heard on NPR yesterday, alleging that after consensual sex initially, using condoms, in separate encounters, Assange then sought sex w/o protection, drawing the complaints, in Stockholm.  The women want him tested for their peace of mind, against disease. 

Assange was of interest before that because of his effort to reveal confidential government information in the form of conversations among U.S. military members about the wars in Iraq and Afghanistan, and later, State Department officials.

Today's Times reports that A-G Holder's Justice Department is looking at various statutes that might be used to prosecute Mr. Assange.  The U.S. is holding a low ranking soldier for having stolen the military records and turning them over to Assange, who portrays himself as merely the messenger, no more at fault for passing the information along than the Times and other publications for publishing them.

In the Pentagon Papers case, the Court found no obstacle to denying the government's request for an injunction against further publication in the fact that the historical papers had in fact been taken w/o authorization from the Pentagon by Daniel Ellsberg, a person who had access to read, but not take them away, copy, or distribute them to anyone, much less various newspapers for publication.  Theft was no bar to publication.

The Court, as far as I'm aware, has left open the question as to the effect of the stolen character of the information wrongfully appropriated.  There's the labor union dispute, secret recording case whose name escapes me until I hit the send button.

According to a law professor quoted in today's Times, the misappropriation of information, not physical property, brings the matter within the realm of intellectual property law, not physical property law, an interesting distinction.

I was wondering whether the U.S. has laws specifically addressed to the subject of industrial espionage, as in, "Suppose the agent of a foreign government tries to pry loose an industrial process, such as the Norden bomb-sight of yesteryear, or the architecture of the latest Silicon Valley computer chip?"

There may be a significant difference between wrongfully accessing and recording information belonging to the government to reveal alleged government abuse and stealing, or revealing, information privately held, such as belonging to Bank of America; or sabotaging MasterCard's ability to process transactions in retaliation for the jailing of Mr. Assange.

Do we have such laws, that is laws prohibiting "industrial espionage," or "sabotage?"

Have they been tested against the First Amendment press and expression guarantees?

In the Informational food-chain, how close to the source must one be to court prosecution for a violation of the Unofficial Secrets Act?  The local news vendor?  Handing the newspaper to one's spouse, sputtering, "Take a look at the latest outrage?"

rs

MAJOR SHITSTORM HAS BEGUN: INDUSTRIAL SABOTAGE

INDUSTRIAL SABOTAGE

In apparent retaliation for holding Julian Assange in jail in London pending a deportation hearing in Sweden on an extradition warrant for some strange-looking, not to say trumped up, sex charges, his supporters are said to have hacked into MasterCard's bill paying system.  Threats have been reported to publish private data belonging to Bank of America or a top officer.  In short, the Wikileaks folk are playing by their own rules, lex talionis (eye for eye, tit for tat, retaliation).  One of them has proclaimed that a major shitstorm has begun.

This is a helluva way to run a railroad.

Suddenly I can see why Mr. Assange is being kept on ice for the duration, no doubt.  He's a menace to organized society, not that this would be terrible in principle, but it happens to be the only one we've got to protect us against the likes of wild-cannons like Assange.

He has supporters, however, and we have well-earned detractors.  It's not a crime to be critical of America, or even to dislike us heartily.  Attacking our interests is another matter however.

I'm not sure that we have the legal structures in place to go after IP-terrorists like Assange.

I'm confident this is in process of being rectified as we speak.

Assange is probably safer in custody than out on the street where any counter-terror operative might whack him, not that anyone would actually do that...

Do we have laws against industrial sabotage?

JULIAN ASSANGE

Julian Assange is the Australian in charge of Wikileaks, the web site that specializes in publishing stolen secret military and state department emails belonging to the United States, which has wars going in Iraq and Afghanistan.

A young army soldier with access to the information is in military custody awaiting trial for stealing the stuff.

The N.Y. Times and other publications has been reporting what the material contains, providing an eye-opening view of what our diplomats have to deal with over the years and among the other creatures of the jungle.  I'm finding it fascinating and informative.  I hope it doesn't stop coming.

Assange is in deep doo-doo with the U.S. and our allies, however.  Those would be Britain and France, I suppose, plus whoever else is helping in those wars.

Should the U.S. prosecute Assange? For doing what? For doing what the NYT is doing?  Suppose I hand the Times to my wife and say, "Dear, take a look at this?"  I know the information was stolen.  The Times has told me so.  Have I committed a crime?  Passing along information during war time?  I don't think so.

But what about Assange?  Didn't he receive the stolen goods, in this case information?

Of course he did.

But so did the Times when it published the Pentagon Papers regarding the false pretenses of the Vietnam war in 1972.

It bothered the U.S. Supreme Court not one whit that the information in the Pentagon Papers had been stolen by Daniel Ellsberg, a think tank employee working in the Pentagon.

In his book Speaking Freely, Floyd Abrams, the lawyer for the Times (after its law firm bailed on the theory that publication was treasonous) describes that the question of "national security" raised by the government boiled down to the question whether the papers, which consisted of thirteen volumes of history as to how we decided to go to war years before, revealing government lying highly embarrassing to some people in government, put war-fighters at risk like right now.  The way the lawyers and judge expressed the problem during the hearings to see whether an injunction against publishing the papers would issue was whether they revealed current operations, such as the sailing of a ship laden with troops.  This became called the "troopship on the tide" issue.  If the government couldn't show that the leaked material put at risk of sinking a troopship on the tide, it had no case to enjoin (prevent, on pain of jail) publication, or further publication.

The government couldn't show this as to thirteen volumes of history, of course, and so lost the case, U.S. v. NYT.

This is essentially the issue in U.S. v. Assange, except that to date we don't know whether the U.S. has filed charges yet against the man.  Yet tempers have been running high and there are those who have called for Assange's prosecution.  Some have advocated shooting the man.  In his defense, Assange says, "I'm just the messenger."  Normally we don't shoot the messenger who brings us news we do not care to accept as true.

Today on NPR I heard an account by a British journalist covering the bail hearing of Assange in London.  He's being held without bail by Britain pending an extradition hearing to Sweden, where Wikileaks is apparently headquartered.

But Assange isn't wanted in Sweden for leaking information inconvenient to the U.S.  According to the reporter, he's being held for having consensual sex with two women in Stockholm, at separate times and in separate places, like their apartment.  With each, according to the report, he used a condom the first time around.  However in the morning, he made another run at the basket, only this time without benefit of condom, giving new meaning to go in for a layup, I suppose.

Each woman went to the police.  Each had met Assange in connnection with his appearing at some event in Stockholm having to do with the celebrity he's achieved in sticking it to the U.S. via the leaks.  Apparently he doesn't like our position of making war on Iraq and in Afghanistan against Al Qaeda, the Taliban, the Insurgents, the Opium Pushers, the bomb planters, etc.  I'm not too crazy about the wars either, but I don't feel as though I ought to be arrested for having my doubts.  Pres. Obama has promised to get us out as soon as he can, which in Afghanistan's case is said to be next July.

A prosecutor charged Assange with some form of sex abuse, not using a rubber the second time around.  Here that would amount to battery, an unprivileged touching, the sort of misdemeanor few prosecutors would touch.  But the women are reported to claim that they want him tested for HIV-AIDS.  So he's been held without bail in Britain pending extradition to Sweden to give him a blood test.  Why without bail?  In view of the seriousness of the charge, according to the magistrate.?

In our Bill of Rights we have a provision, Amendment Eight protecting against "excessive" bail.  No bail, i.e. the refusal to set a reasonable bail, is considered a violation unless the public interest in preventive detention for public safety reasons is held to outweigh the constitutional protection of the individual. 

I'm just guessing, but I suspect that the magistrate denied admitting Assange to bail pending deportation to Sweden has little to do with unprotected sex, without permission, and much to do with the fact that the U.S. would like him put on ice for awhile in the hope of shutting down his leak operation of our information.

In other words, the Swedish sex charges are as much a pretext for holdingt the man as the WMD was for invading Iraq.  Bush thought he could get away with something but wound up with egg on his face; plus we've lost over 4,000 lives on a wild goose chase, meaning the costly quest for a fictitious bird.

If we do go after Assange, legally, in the U.S., the U.S. seems likely to lose, on authority of the Pentagon Papers case.

Meanwhile, we're building him up to be a civil rights martyr striking a blow for free expression.

Way to go, U.S.  First you lose your papers and then you go after the guy who returned them to you...and to me...and to our enemies..and to the rest of the world.

Something about this doesn't quite compute.

CONS

There's a web site sponsored by the noted San Francisco investor Warren Hellman devoted to showing great financial crimes, called Con Artists Hall of Infamy.

"Con" is short for "confidence,"  Confidence men, or con men, as they are called, are men (or women) who persuade you to go along with their scheme based on the confidence they inspire in you to trust them.  Placing trust in someone who supposedly knows better than you do is a fairly common human experience.  We all need to trust one another, at least to some extent, don't we?  Don't I trust that other drivers will obey the rules of the road so that I don't get killed on the highway when driving?

Don't I trust that the bank will take good care of my deposit?

Do I expect to be fleeced if I entrust an investment to, say, Lehman Brothers, the defunct investment bank, or to Bernie Madoff?  Of course not.  Why shouldn't I trust them?  They seemed like such good people.  How was I supposed to know that they were playing games I'd never heard of?

The Hellman web site presents profiles of lots of cons, assuming that the perpetrator was convicted.  This diminishes liability issues, I would presume.

What the site doesn't say is what I'm going to tell you now.

We want to be conned. 

Well, we don't want to be fleeced, exactly, but we do want something in which to believe.

Ever hear the term "pious fraud?"  This is when a religious leader tells you to donate money or effort on the promise that God will reward you in the alleged after-life.

Suppose there is no afterlife?  What then?  Well, perhaps you're not unhappy making the donation because you want to believe that there is an afterlife, your sins will be forgiven, and you will live happily ever after, pie-in-the-sky fashion.

I do hope you achieve this if it's something you believe in.  You can make all of the donations towards your salvation that you like, with my blessing, but don't complain to me later that you weren't admitted to Heaven because it doesn't exist, or that once you got there you didn't like the company and would prefer to be with your friends taking the sun in the warmer regions where I'll be happy to say hello, if you'll bring over a beer, that is.

The point, it seems to me, is that people who want to believe, on some level, are the most likely to be suckered.

I wanted to believe that Pres. George W. Bush knew better than I that Iraq possessed weapons of mass destruction but wasn't quite prepared to believe someone I didn't admire.  However, I did admire his Secretary of State, Colin Powell, the former general whose autobiography I'd read.  When he stood in front of the United Nations and said that he'd gone over to the CIA and spent all weekend reviewing the evidence and it was good, I believed him.  Why?  Because they didn't let me see the evidence held by the secretive CIA.  Powell was all I had to go on.  Plus, and here's the kicker, my sister's son is an army officer who would be fighting in any invasion.  At a deeper level, I didn't want to be contradicting my president when my nephew would be fighting on his orders.  It seemed disloyal not so much to the president than it did to my sister and my nephew.  So, in discussions with friends, I said that I supported the invasion of Iraq.

At a family wedding, sometime after the invasion,  someone asked the nephew whether he thought it had been successful.  'Where's the WMD?" he asked.  It was never found.  Even former president Bush acknowledges that basing the decision to invade Iraq based on the presumed existence of WMD was a mistake.  Now he says that the invasion was good because it eliminated Saddam Hussein, a very bad man whom we supported when he made war on Iran and used poison gas against not only them but his own people when they failed to support him.  If we eliminated every bad person we climbed into bed with, there wouldn't be too many foreign politicians left.

The point is that since I had limited information about Iraq, only what the president told me, and he had his own agenda, and then used Colin Powell to persuade me if I doubted the word of the president, I was inclined to buy in to the belief that we needed to invade Iraq to protect ourselves from future harm, in a preemptive strike, or as my sister puts it, to keep from having to fight these people in Kansas City.  She doesn't live in Kansas City.  Lord knows who these people are.  You probably don't want to know.

In another case of being conned, I represented a young man accused of stealing from the cash register at a big box store.  He said he didn't steal the $30,000 over a period of several weeks.  I questioned him carefully and noted his denials.  He didn't blink, squirm, or dissemble as far as I could see, and I was observing as carefully as I knew how.  This was not enough, however.

I adivsed the young man that if he was lying and we continued fighting the case, the district attorney would see that he was amply punished, as opposed to the light deal being offered in return for a plea of guilty.  The young man accepted the risk anddecided to proceed to the next step which was the preliminary hearing.  The prosecution would offer evidence showing that a crime was committed and that my client most likely committed it.  That would justify having a felony trial.  The stakes there would be considerably greater.

In preparation for this hearing, my assistant and I decided to do something that we could've done much earlier except that we had relied overmuch on the client.  We went to the big box store where he'd worked and went inch-by-inch over the register tapes that showed each transaction, showing whether by cash, check, or plastic card, and the log book where the cashier notes every coffee break, shift change, cash bleed (for security reasons, to avoid accumulating too much cash in the many registers at the checkout line,there's a pneumatic tube at each cash register stand that allows the cashier to place a roll of bills, carefully counted first and recorded in the log book, into a container that flies up the tube under air pressure and land in the cashier's office upstairs -- look up sometime and you'll see an array of such tubes), and entry to the register to go on and off shift.  This effort took the two of us all day, which was no doubt another of the reasons we didn't make this effort earlier.

As we checked the hundreds of feet of register tape, going over each transaction and relating it to the time in the log book showing when my client was the cashier, it became undeniably clear that he'd been lying to me.  It was perfectly clear that he, and his co-defendant, the assistant on the register who boxed the goods, had stolen $30,000, bit by bit.  We could see the money coming in from customers, the money going to the treasury office through the pneumatic tube and the money that was missing.  My client had been pocketing cash from the register, several hundreds of dollars a pop, and sending the rest up the tube.  He was signed into the register.  Only he had the key to the register.  The only time money went missing was when he was on the register.  He was dead.

At court on the day of the preliminary hearing I told my young client that he needed to take the DA's offer because it was good.  We'd done the work and found that he'd stolen the money.  He continued to deny.

I spoke to the defense attorney for the co-defendant and advised him what we'd found and that my client continued to deny the obvious.  Would the attorney please speak to his client to see what he said.  The attorney came back and said that his client now admitted the theft.  I suggested putting the two clients together to see whether my client wished to persist in his denial.  The spoke.  My client returned and admitted the theft.  He pled guilty and got the benefit of a favorable deal.

Later, I asked him why he'd lied to me.  He replied that he understood that I was said to be this very good attorney who could be counted upon to make this case go away.

This was crazy, because no attorney makes cases go away because they're such good attorneys.  Good attorneys make cases go away by showing that the alleged facts don't add up according to either the facts or the law.   In this case, a fair recognition of reality demanded that we face the fact that repeated thefts added up to $30,000 and the young man was the thief.  Good attorneys have learned to face facts, like it or not, which raised the next question.

Why had I believed my client?  As a defense attorney, aren't you supposed to disbelieve your client?  No. Not exactly.  Sometimes your client really is innocent.  Should you disbelieve him or her?  No.  What you do is to with-hold judgment and make very clear that the client is the one who accepts the risk of proceeding to the next step, such as preliminary hearing or trial.  That's all we can do.

The fact was, as I reflected, that on some level, I had wanted to belive my client.  This was the mistake, not realizing this at the time I invested belief in him. 

Why had I wanted to believe?

Years before, when this young man was a child of about seven or eight, both of his parents had been killed in a flaming car wreck on the 101 freeway south of San Francisco when the gas tank exploded after a rear-end collision.  The family came to me and I represented in some of the legal proceedings that followed, including the probate estate.  So I knew the boy as he grew up, cared for by his grandmother and aunts.  I liked the boy and sympathized with the loss of his mother and father.  This was how he heard good things about me, as well, giving him a false notion of what an attorney was supposed to be able to do because, supposedly, he was a respected attorney.

The problem was that I hadn't been aware that "on some level" I wanted to believe this young man.  I hadn't seen him in years, he was now a young adult of about nineteen years of age, and he was accused of theft.  I've represented many people accused of all sorts of crimes, and theft is on the lighter end of the scale of criminality as far as my experience goes.

In the end, the young man gained a more accurate view of what an attorney does, and I gained a more insightful view of how I could find myself misled based on a desire to bellieve that I didn't realize I possessed.

This is how people "get conned," in my view.  They don't realize, perhaps because they don't want to entertain the notion as a serious possibility, that on some level they want to believe that there are WMD in Iraq, or that Bernie Madoff isn't a crook.  So they leap before having an opportunity to look.  Fortunately, I had the opportunity to look in the case of the young cashier, and did so before leaping.

 

 

DEATH PENALTY

 From John Q. Barrett. law professor, St. John's U. Law School, on Justice Robert H. Jackson;

For the Jackson List:
 
This week has seen much discussion of recently retired (but luckily not retiring) United States Supreme Court Justice John Paul Stevens’s review of Professor David Garland’s new book, Peculiar Institution:  America’s Death Penalty in an Age of Abolition (Harvard University Press).
 
In the review, published in the current issue of the New York Review of Books, Justice Stevens explains his conclusion that death penalty laws in the U.S. today are unwise, unjustified and unconstitutionally irrational.
 
Justice Stevens’s book review builds on his opinion in a 2008 death penalty case, Baze v. Rees.  In Baze, Justice Stevens joined a Court majority that upheld the constitutionality of Kentucky's method of lethal injection.  He concluded that this decision was dictated by Court precedent that he should follow.  But Justice Stevens, writing for himself, also announced in the case his conclusion, based on his decades of judicial experience in death penalty appeals,
that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”
(553 U.S. 35, quoting a 1972 opinion by his late colleague Justice Byron R. White).
 
Justice Stevens, in his pragmatic and legally analytical opposition to the death penalty, indeed follows in the paths of some of his former Supreme Court colleagues and predecessors:
 
·                    In 1972, five justices—Justices William O. Douglas, William J. Brennan, Jr., Potter Stewart, Byron White and Thurgood Marshall—voted in Furman v. Georgia that imposition of death sentences under state laws in effect at the time would be unconstitutional.  (408 U.S. 238)
 
·                    Thereafter, although the Court (including then newly-appointed Justice Stevens) upheld some of the state death penalty statutes that were enacted in the wake of Furman, Justices Brennan and Marshall, until their respective retirements in 1990 and 1991, dissented from every Supreme Court decision affirming a death sentence—they noted, in each case, their adherence to their views “that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments….”
 
·                    In 1994, Justice Harry A. Blackmun, who had been a dissenter in Furman, announced that he had changed his mind—he wrote that he felt “morally and intellectually obligated simply to concede that the death penalty experiment has failed.”  (Callins v. Collins, 510 U.S. 1141.)
 
·                    Much earlier, almost nine years before Furman, Justice Arthur J. Goldberg, joined by Justices Douglas and Brennan, had urged, skeptically, the Court to consider the constitutionality of the death penalty for the crime of rape.  (Rudolph v. Alabama, 375 U.S. 889 (1963).)  (Justice Goldberg, who Justice Stevens knew to some degree across many years—each served in World War II, graduated from Northwestern Law School, and practiced law in Chicago; although Goldberg resigned from the Supreme Court in 1965, he lived until 1990, a period that included fourteen years of Justice Stevens’s Court service—figures prominently and interestingly in Justice Stevens’s review of David Garland’s book.)
 
What is noted less often is that Justice Robert H. Jackson also was a death penalty opponent.  Jackson knew the death penalty as a trial lawyer.  His diverse private practice in New York State (1913-1934) included criminal defense work, mostly done free for indigent clients.  He defended clients charged with capital crimes and, in some of those cases, he won acquittals or at least non-capital sentences.  Each of his capital cases gave defense lawyer Jackson a sense that the possible death penalty affected, unduly and unpredictably, the judge and his judging.
 
In time, Jackson also came to know the death penalty in his role as a Supreme Court justice.  During the 1940s and 1950s, state death penalties were widespread and capital case appeals to the Court were common.  Justice Jackson never embraced a view that the death penalty is unconstitutional.  Indeed, he voted to affirm many death sentences.  But sometimes he did not.  And his judicial experiences in all of those capital cases—analyzing how the ultimate stakes involved affected his own thinking and judging, and assessing how they affected the behavior and judging of his Supreme Court colleagues—confirmed his personal conclusion that death penalty laws were unwise.
 
Robert Jackson stated his personal opposition to the death penalty to family, friends and colleagues throughout his life.  In summer 1946, for example, he gave this explanation to fellow Allied prosecutors of the principal Nazi war criminals at Nuremberg:
I do not believe in the death penalty, but as long as any man is punished anywhere for any offenses with death, there is no reason to withhold the death penalty from these men.  It is the presence of the death penalty that makes the Supreme Court of the United States strain for curious reasons for reversal.
 
Jackson’s friend Professor Herbert Wechsler worked for the International Military Tribunal (IMT) at Nuremberg during 1945-1946.  Years later, Wechsler recorded in a comment to one of his great scholarly achievements, the Model Penal Code, that Jackson had said shortly before his death (1954) that “he opposed capital punishment because of its deleterious effects on the judicial process and stated that he would appear and urge the [American Law] Institute to favor abolition.”
 
Nuremberg was, of course, a capital case—the August 1945 London Agreement and IMT Charter that Jackson and his Allied counterparts had negotiated authorized “death” or any other punishment the IMT determined to be just.  During 1945-1946, as chief U.S. prosecutor Jackson built cases and then prosecuted Nazi war criminals at Nuremberg, he believed that the defendants were guilty of conspiracy, waging aggressive war, committing war crimes and committing crimes against humanity, and that they deserved death as much as—more than—any criminal charged with a capital crime.
 
Yet Justice Jackson at Nuremberg never argued for the death penalty for any defendant.  Other Nuremberg prosecutors did, with vigor.  Jackson, by contrast, respecting the role distinction that separates prosecutor from judge, left all consideration of possible death penalties—the agonizing and straining that he believed was inherent in human death penalty judging—to the IMT.
 
*          *          *
 
For Justice Stevens’s book review essay, click here:
http://www.nybooks.com/articles/archives/2010/dec/23/death-sentence/?pagination=false&printpage=true.
 
To order David Garland’s book Peculiar Institution:  America’s Death Penalty in an Age of Abolition, click here:
http://www.amazon.com/Peculiar-Institution-Americas-Penalty-Abolition/dp/0674057236/ref=sr_1_1?ie=UTF8&s=books&qid=1291393760&sr=1-1.
 
To read Justice Jackson’s July 26, 1946, closing argument at Nuremberg—all about each defendant’s guilt, nothing about punishment—click here:
http://avalon.law.yale.edu/imt/07-26-46.asp.
 
Thanks for your interest, and please share this with others.
 
Sincerely,
 
John
 
 
Professor John Q. Barrett
St. John’s University School of Law
Homepage
 
Elizabeth S. Lenna Fellow
Robert H. Jackson Center, Inc., Jamestown, NY
 
Archive of selected Jackson List posts
 
 
Administrative details:  I send Jackson List notes, which do not display recipient identities or email addresses, to readers who are interested in Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics.  To read archived copies of some past Jackson List posts, click here.  If you received this note indirectly and wish to join the Jackson List, send a “subscribe” note to barrettj@stjohns.edu.  If you wish to leave the Jackson List, just send an “unsubscribe” note.
 
 

WIKILEAKS

Wikileaks, a web site, has published stolen communications belonging to the United States.  The first time it was copies of military communications originating in Iraq and Afghanistan, where we have been fighting two wars. 

The second incident consists of email traffic between our diplomatic representatives, staffers, etc., to others in government about their concerns.  Since these were written between American officials in the expectation that they would remain confidential, they sometimes discuss foreign governments and officials in unflattering terms, causing embarassment, awkwardness, etc.

As far as I'm concerned, I love being clued in.  So sorry the material was stolen.  Must be more careful next time, shall we?

But the material was stolen from the government.  Shouldn't we care about that?

Nah.

But stealing the information is a crime.

Okay, but that doesn't prevent publication, does it.

Well, shouldn't it?

What are you going to do?  Unring a bell?

Once the information is out there, in public, being discussed, it's too late to get it back.  You have to deal with the new reality.

But doesn't this interfere with national security?

National security?  What's that, apart from two works and a knee-jerk reaction.

National embarrassment, perhaps, but security?  How is our security hurt by allowing me to know what my government is up to?  It's not as though my government is some paragon of virtue, incapable of doing wrong.  It's an association of peope trying to get ahead in the world, or, as one might say, with considerable truth, to survive in a hostile world.

Fine, but how does telling the truth about us hurt?  We tolerate well the telling of lies about us, affording First Amendment protection even to half-truths, exaggerations, parodies, satires, and even outright lies, so why not the truth?

But it's STOLEN, I keep telling you.  Doesn't that count?

Nope.

The leading case on stolen dope, meaning intelligence, is the so-called Pentagon Papers case, U.S. v. New York Times (1972), where Daniel Ellsberg, an employee of a research institute, as I recall, who was working in the Pentagon, had helped compile, or had access to, a thirteen volume history of our involvement in Vietnam.  What we call the Vietnam War and the Vietnamese call the American War was raging at the time, and extremely unpopular here.  We couldn't figure out why we were fighting and dying there, some of us, not me, thankfully.  We lost 58,000 lives of our own and maybe 3 million Vietnamese.  America was divided, a president, LBJ, decided not to run, in 1967, for a second term (sensing defeat, no doubt), and there was rioting in the streets.

Ellsberg stole the papers from the Pentagon and lagged them to the New York Times, the Washington Post, and whatever other papers would take them.  He was making sure that if the government shut down one publication, the others would get out the word that our government had lied to us about the need to fight in Vietnam, just as it did as to the need to fight in Iraq (WMD, allegedly, never found, not there).

NYT studied the papers for weeks using several reporters and editors holed up in a New York hotel room and published the first installment, showing that our government was lying to us.  Our lying government didn't take that lying down, but obtained a temporary injunction from a federal judge in New York shutting down publication.  The U.S. Supreme Court soon accepted the case for review.

In its decision, the Court mentioned but skipped over the stolen nature of the material.  It decided that we have a tradition in this country of not gagging newspapers or other speakers.  They can speak and pay the consequences if they violate some law, but cannot be gagged.  NYT and Washington Post had both published before the temporary ban and now were free to publish the subsequent installations.

A young Floyd Abrams, who represented NYT when its traditional law firm declined to defend the publication of what it deemed treasonous material, quoted his co-counsel and former law professor Alexander Bickel, to the effect that the threat of punishment "chills" free expression, while imposing a gag in advance to prevent utterance, publication, etc., "freezes" free speech, an important distinction.  In legal terms, banning-in-advance is called a "prior (or previous) restraint," a big no-no with us.  Abrams notes in his book "Freely Speaking," in which he discusses the Pentagon Papers case, that the very process of issuing a temporary ban on publication during the several weeks (or months) needed to litigate the question of national security, etc., amounts to a previous restraint.

So, while there is considerable talk in the media about what to do with Wikileaks, such as to shut it down or to shoot its author, Julian Assange, the leading case remains the Pentagon Papers.

One of the most interesting aspects of the Pentagon Papers case had to do with the notion of national security.  "National security" is a shibboleth, a term that shuts down all debate.  You are free to do this and that, but not if it threatens "national security."

Okay, what is national security?

In peacetime?

In wartime?

In time of fighting but undeclared war?

Is it a real threat to national security if government officials are embarrassed to have some truth revealed that undercuts their position or makes them out to have lied?

Let me put it another way:  do you really care if a politician is embarrassed by having to eat his/her own words?

Colin Powell is embarrassed for having sold a pack of lies to the United Nations, hence the world, when he assured his worldwide audience that he'd gone over to the Central Intelligence Agency and reviewed the evidence of WMD (weapons of mass destruction, nuclear, biologic and chemical, or NBC) and it was good.  He validated the evidence that served as our pretext to invade another country that had neither invaded us nor threatened to, Iraq.  Our president, George W. Bush, didn't much like Iraq's rotten leader, Saddam Hussein, a murdering fool who used poison gas on his neighboring country Iran, invaded Kuwait, causing Bush's father, former president George H.W. Bush-41 (GWB was Bush-43) to defeat the Iraqi army in 1991 in order to protect Kuwait and our oil supply.  We can understand oil.  Saddam also threatened the life of Bush-41, 43's father, during a postwar visit to Kuwait.  So 43 had a score to settle.  No one was going to take a shot at the life of his father and live to tell the tale.  Hence, the invasion of Iraq, the pretext, non-existsent WMD.

The theory of our government is that sovereignty resides with the people, meaning you and me, not with the government.  We don't have a king, or sovereign, a person who, in the bad old days was said to possess 'sovereignty,' meaning all power of the state.  The state was seen as being embodied in the monarch.  Well, we got rid of him, in the form of George III of England, starting in 1776 when we declared independence and then had to fight a war to establish it.

Our theory of government requires the military to be subordinate to our civilian government.  There's a saying to the effect that the only person in America who outranks a military general is a civilian.  I've always liked that expression, as it aggrandizes the individual civilian while cutting down to size, in political terms, the general.

So how bad is it when someone steals government documents, they're published, and citizens like you and me, and the rest of the world, including our active enemies, learn the contents?

Well, obviously, we don't want our enemies reading our mail, but this is a risk of putting the plans and maps in writing, isn't it.  They may fall to the enemy who may counter them.  This doesn't stop us from writing and drawing maps and sending them across the battlefield to our field commanders where, en route, they may fall to the enemy.  Life is full of risks.

The person who stole the government documents published by Wikileaks, is said to be a young soldier, in custody, who had access by being a low-level operative handling sensitive communications.  He is being prosecuted for the misappropriation and disclosure to unauthorized sources.

Wikileaks has been shut down by its Internet Service Provider, said to be Amazon.com, after the application of considerable pressure, according to today's news, an announcement by the the office of Sen. Joseph Lieberman of Connecticut.  Has the information really been kept off the market for intelligence?  Or is it sitting on some server awaiting further developments?

Now that the horse has fled the barn, our agencies are busy cleaning up the mess and locking the door.  Far fewer operatives will be permitted to know what the other hand is doing, and under much greater safeguard.  After 9-11, it became clear that our left brain didn't know what our right brain was sitting on in terms of potentially useful information.  So access was broadened to permit one agency to know what another had.  That's how the low-level clerk allegedly obtained access and stole the golden eggs, if in fact they were golden.

Secretary of Defense Robert Gates, who doesn't relish having our laundry washed in public, in a statement today, said that while it was inconvenient, the release of confidential material wasn't going to be life-threatening.  People deal with us, he said, meaning other nation states, because it is in their interest to do so, not because they like or admire us, which, most often, they either do not, or do not need to.  We're all in this for the benefits, and we take the other trading partners for what they are.  We didn't create them.  They did.  We just deal with them.  We've dealt with many brigands in our day.  That's because we need to.

When it comes to information, once the cat is out of the bag, the game changes.  You can punish the one who let out the cat, but the rest is up to the cat.