WikiLeaks and the Fight for Privacy

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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.”

FBI Raids

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.

Read
the rest of the article

Nat
Parry is the co-author of Neck
Deep: The Disastrous Presidency of George W. Bush
.

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