WikiLeaks and the Fight for Privacy
Everyone should enjoy a basic right to privacy, according to one of the more compelling arguments against WikiLeaks’ “megaleak” of over 250,000 diplomatic cables.
In this view, a diplomatic communication should be protected so U.S. diplomats can communicate candidly to Washington, without fear their words will be made public and used against them.
Yet, regardless of this argument’s merits, it is curious that many of those making it were comparatively silent over the National Security Agency’s warrantless wiretapping program that was exposed back in 2005, when it was the Bush administration deciding, without judicial oversight, to pry into the private communications of American citizens and others.
Following the disclosure of this surveillance program, which was widely seen as violating the 1978 Foreign Intelligence Surveillance Act as well as the privacy rights of millions of Americans, Congress simply amended the law to make President George W. Bush’s activities legal.
The “Protect America Act of 2007” amended FISA to lower the standard for the President’s subordinates issuing issue a surveillance order.
The bill’s proponents insisted that the surveillance targets were foreign terrorists. But the word “terrorist” is nowhere in the legislation, whose broad language simply granted the Executive Branch power to spy on communications of anyone, for up to one year including calls and e-mails to the United States, if it was “reasonably believed” that the person was abroad.
So, according to the view of a majority in Congress, intercepting the private e-mails and phone calls of American citizens is fine if they were thought to be traveling abroad, but releasing secret diplomatic cables makes WikiLeaks a criminal enterprise and Julian Assange a “high-tech terrorist,” according to Vice President Joe Biden.
Rep. Peter King, a Republican from New York who is expected to take over the chairmanship of the House Homeland Security Committee in January, has even advocated placing WikiLeaks on the foreign terrorist organization list, although the State Department claims that there is no serious consideration to do so.
Nevertheless, it is troubling that at the highest political levels in Washington, there is an equation being made between exposing government secrets and “terrorism,” a comparison that is especially worrisome in light of a U.S. Supreme Court ruling last June that upheld the “material support” clause of the USA Patriot Act.
In a June 21 decision, the Court ruled that associating with groups designated as “foreign terrorist organizations” by the State Department, including providing “expert advice” to these organizations, can open up American citizens to prosecution.
Human rights groups claimed the law’s vague language violates their First Amendment rights and inhibits their work by preventing education projects and limiting their ability in offering advice on how to resolve conflicts and work within the political process.
They brought the case to challenge the constitutionality of the law on First Amendment grounds, seeking to apply the judicial standard of “strict scrutiny” – favoring a fundamental constitutional right over an asserted government interest.
The Supreme Court, however, held that the government’s sweeping restrictions were justified by the interest of combating terrorism.
Essentially, the Court agreed with the plaintiffs that the statute does criminalize speech on the basis of its content, but decided that the government’s interest in isolating groups on the State Department’s foreign terrorist organization list was sufficiently great to overcome the heightened level of scrutiny.
As Chief Justice John Roberts wrote in the majority opinion, conflict resolution and humanitarian work “helps lend legitimacy to foreign terrorist groups – legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds – all of which facilitate more terrorist attacks.”
The FBI put the Supreme Court’s ruling to use three months later, on Sept. 24, when it raided the homes of activists in Chicago, Minneapolis, Michigan and North Carolina. The targets were members of grassroots organizations including the Palestine Solidarity Group and the Freedom Road Socialist Organization.
The activists were accused of providing “material support” to the Revolutionary Armed Forces of Colombia and the Popular Front for the Liberation of Palestine, designated as foreign terrorist organizations by the State Department. The activists have been subpoenaed to testify before a secret grand jury.
In a response to the latest round of subpoenas issued by the FBI in December, the Committee to Stop FBI Repression stated that “These newest subpoenas are an attack on the Palestinian solidarity movement and an attempt to silence criticism of U.S. policy toward Israel.
“There is nothing criminal about standing in solidarity with the Palestinian people; demanding an end to U.S. military aid to Israel; and demanding an end to the occupation. There is nothing criminal about traveling to Palestine and coming back to educate the U.S. public.”
Yet, considering the legal precedent set by the Supreme Court’s interpretation of the material support clause, the activists may have some difficulty in proving their case. As Roberts wrote in the Court’s ruling, any activity that is seen as “lending legitimacy” to U.S.-designated terrorist organizations is fair game for prosecutors.
It is a very broad standard and, if political figures such as Rep. King have their way, it is one that could soon be applied to supporters of WikiLeaks.
It is especially troubling to know that with government surveillance of the U.S. public now at unprecedented levels, very few, if any, of a person’s associations or opinions may remain private.
As the Washington Post revealed in the latest installment of its series “Top Secret America” on Monday, “the United States is assembling a vast domestic intelligence apparatus to collect information about Americans, using the FBI, local police, state homeland security offices and military criminal investigators.
“The system, by far the largest and most technologically sophisticated in the nation's history, collects, stores and analyzes information about thousands of U.S. citizens and residents, many of whom have not been accused of any wrongdoing.”
The government’s goal, according to the Post, “is to have every state and local law enforcement agency in the country feed information to Washington to buttress the work of the FBI, which is in charge of terrorism investigations in the United States.”
One of the many revelations made public in the Post article is regarding a vast database that the FBI is building, “with the names and certain personal information, such as employment history, of thousands of U.S. citizens and residents whom a local police officer or a fellow citizen believed to be acting suspiciously.”
All it takes for the FBI to open a file on an individual, apparently, is for a fellow citizen to claim that he or she was “acting suspiciously.”
“As of December, there were 161,948 suspicious activity files in the classified Guardian database, mostly leads from FBI headquarters and state field offices,” the Washington Post reported. Of those, about 100 have become full investigations that have resulted in at least five arrests, with no convictions yet.
The level of reports on suspicious activity may soon be rising with Homeland Security Secretary Janet Napolitano enlisting the help of Walmart, Amtrak, major sports leagues, and hotel chains in her “See Something, Say Something” campaign.
In televised messages that may soon be ubiquitous around the country, Napolitano urges Americans to report suspicious activity to law enforcement.
As the government continues to expand its vast surveillance and intelligence apparatus, adding ever greater numbers of Americans into its database of suspicious individuals, there are also continuing efforts to expand the definition of terrorism and associated crimes.
Besides the calls to designate WikiLeaks as a foreign terrorist organization, there are now efforts underway to expand the 1917 Espionage Act to make it easier to prosecute the publishers of classified information.
The Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Bill, introduced in the House by Peter King and in the Senate by Joe Lieberman, would amend a section of the Espionage Act to expand the exposure of classified information that would be a crime.
The amendment would make it a crime to publish information “concerning the identity of a classified source or informant of an element of the intelligence community of the United States,” or “concerning the human intelligence activities of the United States or any foreign government” if such publication damages U.S. interests.
Since leaking such information is already a crime, the measure appears to be aimed squarely at publishers. It is unclear though how this law would conform to the First Amendment, which states that “Congress shall make no law … abridging the freedom of speech, or of the press.”
This is precisely why the Supreme Court rejected Richard Nixon’s attempt to prevent the New York Times from publishing the Pentagon Papers. But with the Roberts Court’s record on First Amendment issues, it is less than certain whether this latest attempt to muzzle the press can be defeated, particularly with the broad bipartisan anger over WikiLeaks’ revelations.
The most extreme attacks on the Web site have come from prominent Republicans including Sarah Palin, who has likened Assange to an al-Qaeda operative, and Mike Huckabee, who has called for Assange’s execution.
But the WikiLeaks founder also has been attacked by leading Democrats. California Sen. Dianne Feinstein, for example, has said that he should be charged under the Espionage Act, and Massachusetts Sen. John Kerry has called for the law to be changed to make his prosecution easier.
Yet, while the political establishment lashes out over people revealing government secrets, there is no corresponding outrage over the loss of regular Americans’ right to privacy. Only the government, it seems, is entitled to this privacy, not the American people.
This double standard applies even though WikiLeaks has revealed a high degree of duplicity, corruption and illegality in the conduct of U.S. foreign policy. So far, the surveillance of U.S. citizens has yielded little of substance, despite opening files on tens of thousands of Americans for “suspicious activities” and spying on Americans believed to be traveling abroad.
Nat Parry is the co-author of Neck Deep: The Disastrous Presidency of George W. Bush.
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