More from Jack Goldsmith on WikiLeaks

by Kevin Jon Heller

Today at Lawfare:

If DOJ tries to prosecute Assange, we will see more and more scrutiny of double standards in the treatment of traditional media leak solicitors (NYT etc.) v. Assange, and of double standards in the treatment of high-level U.S. government leakers v. Assange.  Scrutiny of the first double standard will weaken press freedoms as the government condemns as criminal the everyday practices of national security reporters (and other reporters) in soliciting and facilitating leaks of classified information.  (Vice-President Biden’s distinction between Assange conspiring to get classified information from Bradley Manning and a traditional media reporter having a piece of classified information drop in his lap without solicitation is very naïve.)  Scrutiny of the second double standard will reveal the shocking regularity with which top government officials leak classified information, not obviously in a principled manner, and not obviously consistently with the rules governing the handling of such information.

And be sure to check out the Tuesday Morning Quarterback column by Gregg Easterbrook, another conservative, to which Jack links.

It’s interesting to watch a general consensus form among scholars on both the left and right that even if Assange could be prosecuted (an open question), he should not be.  I would not have predicted that a few weeks ago.

UPDATE: Make sure to also read Glenn Greenwald’s discussion of today’s article in the New York Times revealing classified information about the military’s plans to increase the use of ground troops in Pakistan.  Clearly the “officials who described the proposal and the intelligence operations” — who “declined to be identified by name discussing classified information” — as well as the journalists who solicited the information from them, need to be arrested, placed in solitary confinement for 23 hours a day, and prosecuted for espionage and treason.

http://opiniojuris.org/2010/12/21/more-from-jack-goldsmith-on-wikileaks/

2 Responses

  1. Gregg Easterbrook is a conservative? How? Because he likes football?

  2. The second Greenwald article, about PFC Manning’s confinement conditions, asserts that Manning is denied “many of the most basic attributes of civilized imprisonment, including even a pillow or sheets for his bed (he is not and never has been on suicide watch).” However, PFC Manning’s civilian defense counsel suggests otherwise. “Since arriving at the Quantico Confinement Facility in July of 2010, he has been held under Prevention of Injury (POI) watch.” Is there any difference between suicide watch and POI watch other than the title?

    http://www.armycourtmartialdefense.info/2010/12/typical-day-for-pfc-bradley-manning.html

    Now, it seems to me there’s a fair discussion to be had whether PFC Manning ought to be on POI watch or not, but many of the restrictions he’s under would seem to not be immediately unreasonable under that status. (Greenwald also asserts later in the article that Manning sleeps much of the day, which would also be inconsistent with what his defense counsel says.) There’s been at least some previous suggestion that the case is on hold pending classification review and a mental health evaluation under RCM 706. The RCM 706 evaluation is probably related to whatever provoked the POI watch status.

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