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>> most of you who took the course are taught in the fall of 2009 will remember the figures of speech who are in the book who are first amendment heroes and villains and it is hard to sort out who are of the heroes and dylan's. i saw this on line cartoon on the internet. i don't know if you can read the captions but julian assange is saying come private information on corporations to you for free and i am a villain. mark zuckerberg says i give your private information to corp's for money and i am man of the

year. who is the hero and who is the villain in this area? the characters in the wiki leaks phenomena and arrived on the scene too late for the book. us suppose there will have to be a sequel. sons of figures of speech. are will talk today about the characters who came on the scene with the wiki leaks phenomenon. if you like you can hiss the villains and cheer the heroes if you can figure out who is who, which is which. let's start with julian assange. is he a first amendment hero or a villain? recognize even suggesting that he might be some kind of hero is

offensive to a lot of people and probably to some of you. you can judge him for yourself. all i will try to do in the tradition of fox news -- [laughter] -- is be fair and balanced. julian assange is the founder of wiki leaks. when he was interviewed on 60 minutes a few weeks ago he wrapped himself in the first amendment and said, quote, our founding values are those of the american revolution, those of jefferson and madison. julian assange may not know that our constitution was written in complete secrecy in philadelphia behind closed doors guarded by sentries and there were no leaks.

some think of julian assange as a character from a steve larsen thriller, heyman who could be either a hero or villain in one of those swedish stories that makes hacker counterculture with high-level conspiracy and sex. he has become one of the most famous people in the world. there are four movies in production about julian assange. he is a fast-moving target. he moves through the country when he can. he is eccentric, volatile, an expert computer hacker turned anti secrecy crusaders. bill keller of the new york times said julian assange runs, quote, a secretive cadre of and

try it secrecy vigilantes'. he is currently in england fighting extradition to sweden where he is wanted for investigation on charges of sexual assault. his two accusers say he had sex with them at first consentual the but again without using a condom as he promised. he was sent to jail. he was arrested in the u.k. and put in the same victorian prison where oscar wilde served his time. an english court has ordered him extradited to sweden. he is now free on dale and his hearing is set for july 12th. another of the principal characters in the wiki leaks saga is private bradley manning. he is the young soldier, first

amendment hero who put wiki leaks of the map. he is accused as leaking military communications about the war in iraq and afghanistan and 250,000 state department cables. i don't know whether he has been accused or is responsible of releasing the guantanamo records that were released by wiki leaks last week. manning started his leaking career with a videotape that he released of the tape that highly upset him of a united states helicopter attack in baghdad in which several civilians were killed including two reuters journalists on the ground. his job in bad debt was to work

on two military laptop computers and he along with 500,000 other people had a security clearance that permitted him access to classified databases allowing so many people access to classified material is apparently a reaction to the post 9/11 determination that the intelligence agencies weren't sharing information. they have gone overboard and share it with lots of people but i don't know how you are supposed to keep a secret that is known by 500,000 other people. manning allegedly copied the data bases of these military communications onto regrettable -- rewriteable cds that contain

his lady gaga music. he raise that music and loaded up government secrets. he is now in jail in fort leavenworth awaiting court-martial. when he was held at the marine brig he was in extremely harsh conditions where he didn't have clothes and in total solitary confinement. he was allowed to have books and he requested a copy of emanual current's critique of pure reason. an unusual young man. this man is to society stands 5 foot 2 and blades 105 pounds. he does have some of the characteristics that i would associate with heroism.

he didn't do it for the money. he didn't do it for fame. he didn't do it to hurt his country. but seemingly out of some kind of naive idealism and moral opposition to what our country has been doing. some people in berkeley wanted to give manning a heroism award and put it before the city council to formally bless manning as a hero but it was pointed out that he hasn't been convicted so his heroism hasn't been verified and they tabled the motion. in berkeley you have to be a convicted felon in order to be a hero. if manning is the leaker he betrayed his trust.

he in turn was the trade by a friend be delayed convicted hacker named adrian llama who elicited a detailed confession from manning in online chats between the two of them and he turned manning in to the government, to the authorities and gave his hard drive with the online chats to the fbi. in the chats manning told him i couldn't be a spy. sportsrise don't post things ie world to see. wiki leaks dumped on the internets thousands of military communications from the battlefields in afghanistan without rejecting any of the names under individuals who

might be at risk. then posted thousands of similar military communications from iraq but this time with reductions and finally a couple thousand of the quarter of a million that apparently has state department cables. these were rejected by the newspapers that wiki leaks has been collaborating with and to whom julian assange gave the state department cables in order to protect diplomatic sources. when the cables were released the department of defense spokesperson said the disclosures were, quote, recaps can destabilize global security. but wiki leaks has progressed from in discriminant dumper of anything secret to a more

responsible organization that at least pretends to be journalistic. before releasing the state department cables newspapers had the cables and they had gone to the state department and had a meeting with a bunch of unsmiling individuals from the cia and national security council and department of defense and they negotiated the reactions and julian assange knew about that and before the release julian assange undertook to write to the united states ambassador in london. i don't know how well you can see this. he billed himself as editor in chief of wiki leaks as though it

was a journalistic organization of some sort, rights to the ambassador in the u.k. and offers to sit-down with any authority from our government and help identify information in cables not yet released that might put persons at risk of harm. he got a lightning response to this letter that came the next day from the legal adviser to the state department. and i have to save this response could have been written by john mitchell, nixon's attorney general when they tried to stop publication of the pentagon papers. he accused julian assange of law violations and asserted publication of the cables would place at risk the lives of co was innocent individuals, would place at risk ongoing military

operation and ongoing cooperation between countries and so on and endangered diplomatic relations and refused to engage in any negotiation and demanded that wiki leaks stop publishing. the demand was also that wiki leaks return -- hoops -- return -- remove and destroy all materials from the wiki leaks database. return all classified government information. that is just what john mitchell demanded in 1971. julian assange politely responded to the letter and said

if you don't want to negotiate we have no alternative and we will go ahead. the white house then issued a statement condemning the release, quote, and the strongest terms as a, quote, reckless and dangerous action. wiki leaks is a fast-moving target and there was a lot about wiki leaks that i don't know. i don't have a clue about the amazing encryption technology that wiki leaks uses. i don't have access to classified information other than what wiki leaks has put on the internet and the guantanamo things that were released, the lawyers for the accused prisoners in guantanamo have security clearance but they are not allowed to look at the very

documents of their clients on the internet because they can only do so in a secure government facility. all the rest of us can look at them on the internet. but prisoners can't. i don't know much about this. it is all news to me. what i do know a little bit about is the first amendment. here is my thesis. wiki leaks those its existence to two weaknesses in our first amendment protection both stemming from decisions i had something to do with. the rulings were there is no constitutional right of access to government information or facilities. and no right of reporters to

protect their confidential sources against compelled disclosure. if we had a right to know what our government is up to in guantanamo and reporters could credibly promise to whistle-blowers real confidentiality which wiki leaks guarantees there would be little point to wiki leaks. hope you won't think this is celebrating losing side of these cases. you can only listen to me. you couldn't have wiki leaks. it is recognition that first amendment rights are not as strong as they ought to be. the most immediate first amendment issue facing wiki leaks today is whether it can be

prosecuted for violation of the espionage act. let's look at the extent to which our system recognizes a people's right to aspirational plays that you will not find in the constitution. we think of ourselves as an open society with transparent government. our government has always hidden secrets with the blessing of the constitution. the constitutional convention itself was held behind closed doors and the secrecy of government. there wasn't any stenographer and no reporter and no press. only the delegates locked behind closed doors.

james madison after the proceedings took a very detailed notes of each day's deliberations and speeches. that is the most authority of force on what happened but he kept his notes secret until after he died. they were finally published in 1840, 50 years after the convention. the delegates made fundamental decisions about our society with zero transparency. the constitution itself recognizeds a need for secrecy. requires each house of congress to keep a journal of its proceedings and publish it, quote, accepting such parts as may in their judgment require secrecy. that is an article 1 section v

of the constitution. presidents from washington to nixon through. -- through. --bush asserted information from congress within the executive branch. congress blessed the president's classification system which forces executive branch provided to the enforcement of the executive orders and classification and in some cases like criminal penalties. committees and subcommittees in the house and senate meet in executive session and people don't have a clue what business is being transacted. the courts insist on confidentiality. jury deliberations are

confidential. testimony before secret grand juries and what happens in judge's chambers and the most confidential proceeding in all of government are the deliberations of the supreme court justices. it is true that in 1966 congress enacted freedom of information act that gives all of us the vote to request government documents, records of various kinds but the freedom of information act means exemptions including national security and law enforcement. in countries that care about government transparency freedom of information trade provisions are enshrined in the constitution itself. sweden for example features

freedom of information provision. south korea a few years ago interpreted the south korean constitution to include freedom of information that we don't have except in the freedom of information act itself. and then 9/11 propelled us into a new era of government secrecy in the administration of george w. bush which multiplied exponentially the numbers of classified documents classified as secret into the millions. vice president cheney claimed to be constitutionally exempt from reporting to the national archives even the number of records it branded as

top-secret. he also refused to disclose the names of the oil company executives that he met with to formulate the administration's energy policy and the government successfully defeated the sierra club's freedom of information act suit to get records of those meetings. within weeks after 9/11 president bush issued an executive order that allowed him to veto release not only of his own presidential papers but those of his predecessors, reagan and george bush the first and clinton so they would be not available to the public. the administration pursued leaks not with the knicks and plumbers unit but threatening criminal prosecution.

some republicans in congress -- prosecution of the new york times when it broke the story about the national security agency's illegal wiretapping and also the story of the government tracking international financial transactions. george bush himself said it was disgraceful for the times to have done this, to review these government activities and publishing the security agency leak was, quote, helping the enemy. george bush's first attorney general john ashcroft in one of his first post 9/11 acts was to issue a directive to federal agencies that flipped the presumption of freedom of information act requests. the presumption of the act is information ought to be free and

government records belong to all of us and citizens should not see anything unless there is a very good reason that particular record has to be withheld. john ashcroft flipped a that and informed agency directors you don't have to release government record if you have any arguable basis for withholding them and if you are in any doubt about it don't worry, we will be sent you. that was the administration's approach to the freedom of information act. the aclu and others in 2003 made a freedom of information act request, to unclassified the guantanamo base operating manual with facility and lists of modest amenities and the nuts

and bolts of prison operations. the pentagon prevented its disclosure for four years. it was wiki leaks that posted it on line in 2007. the bush administration post 9/11 rounded up over a thousand mostly muslim immigrants and conducted deportation hearings in secret. even the dockets were secret. you wouldn't know whose case was on the dockets or who was deported. it was all done in secrecy. which for the federal judge to say, quote, democracy guys behind closed doors. the obama administration is less secretive than the bush

administration. attorney general holder reduced john ashcroft's freedom of information act order and reversed the presumption of openness rather than closure. the president repealed george bush's order on presidential papers but we are still not sweden. the administration has been aggressively pursuing leaders and brought five criminal cases against alleged leaders as opposed to three in the last 40 years. the response to julian assange's offer to negotiate rejections in the state department cables was worthy of john mitchell's approach to that matter. the obama administration's treatment of photographs of all abu ghraib kite abuse was interesting. everyone has seen the abu ghraib

pictures, gruesome as they are but it turns out there are a lot more, 2,000 of them showing abuse of prisoners by military personnel in iraq and afghanistan. some were taken by soldiers as souvenirs like most of the abu great pictures. some were autopsy photographs and others taken in the process of criminal investigation of the abuse by our government and the aclu and others sued under the freedom of information act to get access to these and released photographs. the administration argued, opposed the request. the obama administration oppose the request saying the pictures could, quote, in flame anti-american sentiment around world and said the pictures would invade prisoners's privacy. the government lost in the trial

court on appeal. the court of appeals said the fear of danger to troops or americans abroad was vague and speculative. there wasn't any showing of actual danger to any particular person or target or place or who would do what to whom and the potential violation of prisoners privacy was not a strong or valid reason to keep the photographs secret. obama caved in initially saying the court has spoken. we won't take it to the supreme court. and then apparently he looked at the pictures and changed his mind and directed the solicitor general elena kagan now on the supreme court to file a petition to pursue the case.

it describes some of the pictures. one shows a prisoner handcuffed to the bars with a bag over his head as a soldier holds a broom as the sticking it into his rectum. and there are lots like that with one showing a soldier putting up prisoner with the butt of his rifle, prisoners and soldiers pointing rifle that the heads of handcuffed detainee's. while the petition was pending in the supreme court the administration got through congress with lightning speed, unheard of speed. a bipartisan bill republicans fully signed on to that amended the freedom of information act to exempt these specific photographs and they have never seen the light of day.

it will be interesting to see what the administration does about releasing photographs of the dead osama bin laden. these folders photographs would in flame anti-american sentiment around world. i don't know how the picture of osama bin laden is going to apply but we will see. the government has always had plausible reasons, sometimes excellent reasons for keeping secrets and in some cases restricting speech and in all of the cases in the "figures of speech: first amendment heroes and villains" book the government always had a competing value for restrictions on free speech. it is the collision of values, free speech against whatever the

government is saying. you can't allow that whether it is national security or preventing america's children from exposure to sexual content on the internet. the government always has a plausible reason, invokes some competing value that makes sense and that makes first amendment cases so hard and interesting. i recounted this lengthy history of government secrecy to remind you government transparency is not constitutionally required and to suggest this lack of transparency open the door to wiki leaks. the lack of a constitutionally required people's right to know came to me in a personal way when i lost the case in the supreme court that involved access by the press and public

to the alameda county jail in alameda county. there had been a lot of ugly incidents at the jail in nearly 70s and a federal judge in san francisco condemned the conditions there as cool and unusual punishment of the prisoners. kqed had been following the events at santa rita with their new department and the anchor of the program called up the sheriff of alameda county and said we have been following the stories of your jail and we would like to send a camera crew to look around and wonder if that would be ok and when we can

do that and sheriff said no way. my press policy is no press, no reporters allowed in, no television, no reporters of any kind allowed in my jail. bill called me and asked can they do that? what is the reason he gives for this policy? he didn't have any. so kqed determined to su for access to the jail. the federal judge in san francisco oliver carter granted an order that allowed kqed and the responsible members of the press to go to the jail with cameras and recording equipment to interview prisoners and report the news and to my surprise sounded like a fairly reasonable thing. the sheriff could shut it down if there were security problems.

to my surprise the sheriff appealed to the federal court of appeals which heard the case on an expedited basis and agreed unanimously that kqed had a right to access to this facility. they couldn't agree among the three judges on what the first amendment principle was that allowed the press access to the jail and they wandered all over the lot. the sheriff took advantage of that and went to the united states supreme court. they took the case and her argument. you might consider this share of the first amendment villain, someone who suppresses information about government operations with no justification at all.

the argument in the supreme court justices were openly hostile to the idea that the press had any special right that the general public didn't have and they were unable to locate anywhere in the first amendment a right of the public to inspect a jail. the justices were forthright about their worries about the flood gates opening, that if public and press had a right to go into a jail, then every time a government bureaucrat says no you can't come in or i won't show you that, that is a lawsuit in which the government would have to prove some justification for not allowing press and public in and the court was hard put to find some limiting principal that would allow

access to this jail but not open the gates to lawsuits over all kinds of government secrecy. the details about the case and the background are in the book. the decision in the kqed case was there is no such thing as a first amendment right of access by either press or public not just to a jail but to any government facility or information. unlike in some countries like south korea in which government transparency is constitutionally mandated american citizens have no constitutional right to know what their government is up to. it is not coincidental that the most recent press freedom done

by freedom house in new york founded by eleanor roosevelt ranked the united states in terms of press freedom not first or second but tied for 24 with the czech republic, will behind such bastions of democracy as jamaica, portugal and estonia. that is the environment when wiki leaks came on the scene. a constitutional tolerance for secrecy and a long history of it. to the extent that wiki leaks informs citizens what it is doing in our name it partially repairs this flaw in our constitutional protection for free speech and press if there were better guaranteed access to government information, greater transparency, there would be less point to wiki leaks.

might serve a useful purpose if it concentrated on exposes corporate malfeasance and things like contributions to carl rove's political campaign and so on. the second gap in constitutional protection for speech and press freedom that gave rise to wiki leaks was created by an unfavorable supreme court decision and this has to do with reporters ability to protect their confidential sources. it may not be a coincidence that wiki leaks appeared on the scene not long after the supreme court refused to hear the case of judith miller, former new york times reporter. in 2005 she was sent to jail for refusing to testify about information given to her by a confidential source we now know

to be lewis scooter libby, vice president chaney's chief of staff. everytime i am reminded of this i remember a student i had at the journalism school in berkeley by the name of libya lewis. a lovely young woman who went into radio instead of television and became an npr reporter and her beat was covering this dispute and i remember hearing one of her reports on the radio after he was convicted of perjury and she said that is what happened to lewis libby. this is libby lewis reporting. and subpoenaed by a grand jury to investigate who the source of a leak of the identity of

valerie plane was. she was an undercover cia agent and her identity was leaked after her husband had debunked the administration claim that saddam hussein was seeking nuclear material in africa. the court refused to hear the case in 2005 and left miller in jail. that was the big story because everybody had anticipated that the court would clarify and needed to clarify the extent to which reporters are able to protect confidential sources. in the miller case it was a disappointing non decision, refusal to take the case. the only case that the court has ever decided on this issue was another one that i worked on back in 1972 and involve earl caldwell, a reporter for the new

york times who covered the black panther party and did all the times coverage of the black panther party. the court in the call -- decided reporters had to appear before a grand jury investigating something about the black panther party and the reporters had to testify like any other citizen would have to testify and reporters had no first amendment protection against compelled disclosure of their sources even if that meant the sources would dry up, not cooperate and ruin the reporter's ability to report to the public what the sources new. the background details of the case are in the book. when the court refused in judith

miller's case to reconsider this situation that made it crystal clear that reporters can't honestly promise their sources confidentiality would be whistle-blowers with sensitive and embarrassing information about government malfeasance, simply can't trust that the reporter will be subpoenaed to spill the beans about who leaked information. wiki leaks provides this amazing encryption technology, complete anonymity to leaders's web site to accept restricted or censored material of political, ethical, diplomatic or historical significance. it says it, quote, does not record any source identifying information and there are a number of mechanisms in place to

protect any document from being sourced. it says it never reveal a source. in other words wiki leaks can do what the mainstream media can't do. a whistle-blower could go directly to the new york times by passing wiki leaks but that risks exposure of the whistle-blower. if subpoenaed the times would have to finger the source. wiki leaks partially repairs a gap in the first amendment protection. if there were a meaningful first amendment protection reporters that would be sources could rely on wiki leaks might be superfluous. congress almost passed a federal shield law in the last congress. a bipartisan bill passed the

house and was approved by the senate judiciary committee and never brought to the floor of the senate before the congress went home. the most recent wiki leaks disclosures, state department cables seems to have antagonized enough senators to torpedo any chance of that any time soon. you want to take a break? yes? take five or ten minutes and we will pick up from there. [applause] >> the question that confronts wiki leaks and julian assange now is whether he can be criminally prosecuted under the

espionage act or whether the wiki leaks disclosures are protected by the first amendment. right after the state department cables were released senator dianne feinstein wrote an op-ed piece in the wall street journal that aggressively interpreted the espionage act and she demanded prosecution of julian assange. senator joe lieberman said wiki leaks disclosures are, quote, the most serious violation of the espionage act in our history and called julian assange a trader. sarah palin calls him an anti-american operative with blood on his hands. mike huckabee called for his execution. senator lieberman got busy and try to put wiki leaks out of business altogether. he pressured amazon to stop

posting the wiki leaks website and urged any other company that supported the wiki leaks site to, quote, immediately terminate its relationship and then pen pal and visa and mastercard stopped prosecuting -- processing donations claiming somehow in weighs not specified it wasn't complying with their terms of service. someone pointed out jake continued to support the ku klux klan web site and you can pay by credit card the way you could donate to wiki leaks. they are still doing it.

lieberman -- [inaudible] -- scott brown of massachusetts coast on devoe the image a bill called the shield act that would have broadened the espionage act's provision to outlaw communication with any human intelligence sources, it would have made it a crime to mention former panama dictator noriega who was a cia asset was convicted of drug dealing. that mention would have been illegal. lieberman's attempts to shutdown

wiki leaks doesn't come in as a candidate for inclusion as a hero. the espionage act itself was enacted in 1917 during world war i at the assistance of president wilson. it was the first loyalty type was -- law since 1798. it has a hodgepodge of provisions that seem to make it a felony for not just tolaw -- . it has a hodgepodge of provisions that seem to make it a felony for not just to hand over a secret document to a spy but communicate information relating to national defense to people not, quote, authorized to

have it if it could damage the united states or give advantage to a foreign nation. some of the provisions relate to classified information, national defense information. we rely on the press to inform us of national defense information. some provisions require proof the disclosure intended to hurt the united states and require the information be closely held. hundreds of thousands of government employees have the same access to the database that manning did. there doesn't seem to be any law on the books dealing with the disclosure of state department

cases. you may remember when the pentagon papers were published, 37 volume classified top secret study by the department of defense about our involvement in viet nam. the papers were leaked to the new york times. henry kissinger called him the most dangerous man in america. they were published by the n.y. times after winning an epic first amendment battle in the supreme court after the pentagon papers were published. the next administration prosecuted albert --ellsberg and the trial was afforded. the judge discovered that nixon

had burglarized the psychiatrist's office to find dirt and the judge was so outraged about the government misconduct that he dismissed the case. the government did not prosecute the new york times. no publisher has ever been prosecuted under the espionage act and i don't think the news media could be prosecuted. when it was proposed in 1917 the congress rejected -- made it a crime to, quote, published defense information in the very provision -- the law does forbid publishing -- the part that deals with military codes or photographs of military installations. congress knew how to prohibit publishing and deliberately

chose not to. is wiki leaks like the new york times or like ellsberg? manning is the government employee who violated trust and no matter how noble his motives gave classified information to someone not entitled to have it. manning is not charged with violation of the espionage act but with military offense and is facing court-martial. if he were charged with the espionage act i am not sure he could be convicted because the government would have to prove he intended to hurt the united states for help and enemy and his disclosure potentially damage the united states. that is what a judge required under the espionage act a couple years ago when two employees

were charged with getting leaked information to israel and the government had to dismiss the case. the government has not claimed that anyone has been hard as a result of any of the wiki leaks disclosures. what about julian assange? is he like manning or the new york times? is he a leaker or a publisher? we don't know if wiki leaks was the passive recipient of classified documents. if it was that is like the pentagon papers case that the times received on a silver platter. pentagon papers to be sure publicizing documents that demonstrate high level lying and government duplicity is different from the wholesale

dumps that wiki leaks initially specialized in disclosing government secrets just because you can is not necessarily in the public interest. in recent months wiki leaks is moving away from anarchism toward journalism may be motivated by the wish to seek shelter under the first amendment. the wiki leaks website changed its tune. it repeatedly emphasizes its, quote, journalists review leaked material and exercise judgment about what to put in the public domain. it even says documents are redacted to avoid harm. it has not forsworn indiscriminate dumping or doctrinaire hostility to government secrecy but using responsible judgment gives it a

better chance at personal protection. seems to me that in deciding whether julian assange and wiki leaks has a first amendment defense -- we would like to know what conversation if any was between manning and julian assange. did julian assange actively solicit the leaks? did he provide software facilities -- assistance to facilitate the leak? actively engineering the leak might subject him to a charge of conspiracy and that would help the government avoid first amendment that mere publication can't be made a crime. julian assange claims he never heard manning's name until was

published in the press and says the conspiracy would be impossible because wiki leaks technology was designed to make sure wiki leaks itself never knows the identities of the leaders saying, quote, we are as untraceable as we are uncensored. conspiracy or not i think prosecution under the espionage act would remain problematic. i also think first amendment protection would depend on whether the leaked information is of any legitimate public interest. for example out in another country's government is not in the public interest -- or public concern just as identifying valerie plane as an undercover

cia agent is not in public interest but it seems material in the wiki leaks disclosure so far has been of some public concern. when the state department cables disclosed the real reason google was forced out of china. the cables disclose that american diplomats have been encouraged to spy on the united nations officials in new york gathering credit card numbers about un officials and that the saudis were actually urging the esteban iran to wipe out its nuclear capability. some of this confirms what we

had guessed that hamid karzai is involved in corrupt links to criminal war lords. this information is embarrassing to our government and other governments like the former dictator of tunisia who the state department cable showed was operating a kleptocracy and he was chased out of office in the first arab spring revolution. embarrassing information but the kind of information that americans ought to be entitled to know. whether any disclosure caused harm has to be relevant to prosecution. no harm ever resulted from