Disclaimer: This post is not intended to either defend or persecute WikiLeaks, Julian Assange, and/or Bradley Manning.
In a post on an earlier article:
-- -- Comments to "Pro-Wikileaks Hacktivistas in DDoS Dustup with Patriot Contras"
-- --
http://forums.theregister.co.uk/foru...e_ddos_dustup/
-- -- "Flashback to the '70s"
I indicated that there are two very important words that need to be taken into consideration regarding any attempt to prosecute Julian Assange and/or WikiLeaks for their action(s) in publishing the diplomatic cables (allegedly) provided by Bradley Manning:
-- -- Pentagon Papers
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http://en.wikipedia.org/wiki/Pentagon_Papers
For those too young to have lived through what is arguably the most famous of Cablegate's foreshadowing scandals, here's a quick recap:
In 1969, during a time of political upheaval fairly similar to what we're seeing today, a guy named Daniel Ellsberg copied a 4,100 page document (small by WikiLeaks' standards, but I digress) called
-- -- "United States–Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense"
while working at the RAND Corporation, a non-profit think-tank with high-level FedGov connections.
After sitting on the study for a while, Ellsberg contacted Neil Sheehan, a reporter at the New York Times, and handed over the kit in February 1971. The NYT tossed the issue around internally for a bit, debating the legalities of publishing the info, then started printing excerpts on June 13, 1971.
President Nixon was rather unconcerned, since the incidents described in the study occurred during the terms of his predecessors. However, his Administration's upper rank-and-file weren't so laissez-faire. After National Security Advisor Kissinger convinced Nixon to change his stance, Attorney General Mitchell used the Espionage Act of 1917 to obtain an injunction against the publication of further excerpts by the New York Times. The NYT appealed, and the case quickly climbed the judicial ladder and landed itself in front of the US Supreme Court:
-- -- New York Times Co. v. United States (403 U.S. 713)
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http://en.wikipedia.org/wiki/New_Yor..._United_States
The Supreme Court ruled in the New York Times' favour, saying that material provided in the Public Interest to a news organisation cannot be censored by Prior Restraint.
It was a landmark case, strengthening the foundations of the United States' Freedom of the Press. Daniel Ellsberg and the New York Times were hailed as heroes by some, and vilified by others, much the same as with Manning and Assange, today.
A quick comparison of the legal ramifications of Cablegate (Now) and the Pentagon Papers Affair (Then) provides the upshot to all this: In the United States, at least, Julian Assange, WikiLeaks, and the news organisations working with them are legally in the clear. By legal precedent of the United States' highest Court, the barriers against pre-publication censorship are very high indeed, and the Government needs the Mother of All Ladders to climb over them.
In a reply to my earlier post, one commenter said that (basically) Daniel Ellsberg and Julian Assange are nothing alike, and that Assange is "all talk and no walk," indicating that Ellsberg had a lot more backbone. The problem with this assessment, in my opinion, is that the commenter is (in my words) "comparing apples and oranges."
If you take a look at the parts being played by the various Cablegate cast of characters, Bradley Manning is Daniel Ellsberg, and Julian Assange/WikiLeaks is the New York Times. Assange can't be equated with Ellsberg, because Assange didn't steal anything. He was **given** the documents by another party, in much the same way that the New York Times received the Pentagon Papers from Daniel Ellsberg. Assange is a reporter, and WikiLeaks is his media outlet. If anybody "walked the walk" in this affair, it's Bradley Manning, should it be proven that he is the person responsible for collecting and leaking the documents to Assange.
Whether Manning and Assange/WikiLeaks are heroes or villains is not the point of my ramblings. Rather, my point is that by legal precedent, there's nothing to prosecute. In the United States, Prior Restraint against publication in the Public Interest is unconstitutional.