Feature Article

Defending WikiLeaks

[TamilNet, Sunday, 05 December 2010, 14:22 GMT]
U.S. Attorney General, Eric Holder, has asserted that the U.S. Justice Department is investigating to bring charges against WikiLeaks' Julian Assange for disclosing classified information. Survival of WikiLeaks from brewing legal challenges in the U.S. Courts is essential for bringing charges of war-crimes and crimes against humanity against Sri Lanka officials. A recently released cable from US Embassy in Colombo has revealed U.S. diplomats believed "responsibility for many alleged [war] crimes rests with the country's senior civilian and military leadership, including President Rajapaksa and his brothers and opposition candidate General Fonseka." The remaining 3324 cables from Colombo are likely to contain information of interest to Tamils on the evolution of US policy towards Sri Lanka conflict.

Julian Assange, Founder WikiLeaks
Julian Assange, Founder WikiLeaks
Particularly important will be cables attributed to former U.S. Ambassador to Sri Lanka and Maldives, Robert O'Blake. Blake whose tenure lasted from September 2006 to June 2009, was the closest U.S. observer of the unfolding war in Mullaiththeevu where an estimated 40,000 Tamil civilians were killed.

Blake is the current Assistant Secretary of State for South and Central Asian Affairs. Ambassador Blake is known to have advocated reducing the rhetoric on "genocide" and for Tamils to find a way to work with the Rajapakse regime.

Legal survival of WikiLeaks, and its charismatic founder Assange are, therefore, critical to Tamils.

Baruch Burgess, the attorney who represented two Israeli lobbyists from American Israel Public Affairs Committee (AIPAC) charged for leaking information that had been disclosed to them by high-level U.S. officials, says in the Sunday Washington Post, that prosecuting WikiLeaks in US courts will be difficult.

Burgess says "there is no statute making it illegal to reveal classified information. There are statutes that criminalize the disclosure of very specific types of classified information, such as the identity of a covert operative or "codes, ciphers or cryptographic systems." But there is no catch-all law that simply says, "Thou shalt not disclose classified information.""

Prosecutors would resort to the Espionage Act of 1917, an archaic, World War I-era statute that prohibits "willfully" disclosing "information relating to the national defense. Prosecution must prove that a defendant knew that the information he was disclosing was potentially damaging to national security and that he was violating the law.

Letters by Assange to the U.S. government inviting suggestions for redactions and that WikiLeaks has no desire to put individual persons at significant risk of harm or to harm the national security of the United States, will make Justice Department's case against Assange especially difficult, Burgess says.

Burgess also points out that Assange can rely on the courts to be vigilant in protecting his First Amendment rights and affording him the same protection that traditional media enjoy.

Judge Ellis, in the AIPAC case, rejected the prosecutors' categorical - and dangerous - argument that when classified information is at issue, the First Amendment affords no protection.

Justice Department would have to prove that Assange's disclosures were so dangerous to national security as to override the First Amendment. In the words of Justice Oliver Wendell Holmes Jr., the prosecution would have to demonstrate that what the defendant did was as immediate and as dangerous as "falsely shouting fire in a theater." That is a heavy burden to meet, Burgess points out.

WikiLeaks prevailing in any possible legal challenge in the U.S. Courts is of significant interest to the Tamils in the search for evidence to establish Sri Lanka's criminality amounting to genocide of Tamils.

Related Articles:
02.12.10   Rajapakse, brothers responsible for alleged War Crimes in Sr..

External Links:
HT: US wanted to know UN position on Sri Lanka: Wikileaks
Wiki: American Israel Public Affairs Committee
Wikileak: Sri Lanka - Ambassador reports Sri Lankan President responsible for "alleged war crimes"
Guardian: WikiLeaks embassy cables: download the key data and see how it breaks down
WP: Prosecuting WikiLeaks? Good luck.
Cornell: Espionage Act of 1917 (USC 18, Part 1, Chapter 37)


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