Umm, Seumas?

Not surprisingly, the US government made clear it regarded WikiLeaks as a serious threat to its interests from the start, denouncing the release of confidential US cables as a \”criminal act\”.

Umm, it was a criminal act.

Let\’s take the logic of your mate, the Murphmeister. Taxes are whatever Parliament says they are. More than that, they\’re whatever Parliament intended they should be. Not coughing up whatever the tyranny of the majority demands is thus criminal activity.

And now to Congress. They\’ve made a number of laws about what is secret and what is not secret. They\’ve also defined certain releases of certain types of secrets as criminal acts. Thus releasing certain types of secrets is indeed a criminal act.

We can indeed say that actually, there\’s a public interest defense. That the release of certain secrets is so important to the wider world that such criminal activity should be not just forgiven or overlooked but positively welcomed.

OK, let\’s do that. But now we\’ve breached the concept that anything at all that is encoded into law, or even meant to be so encoded, is just and righteous and thus any deviation from it something to be punished as a criminal act. Which when we come to taxes means that perhaps we should be applauding the tax dodging bastards? For by moving offshore, by leaving the country, by arguing vehemently with HMRC, they impose an upper limit on the depredations the politicians can make upon the wallets of the rest of us. Which can be argued to be in the public interest.

Which leaves us with: either the law is the law or there is a public interest defense. And if there is that latter then much of other cases dear to the British left falls apart.

22 thoughts on “Umm, Seumas?”

  1. You’re rather carelessly ignoring questions of jurisdiction. The US can make things within its own boundaries illegal as it pleases. Criminalising acts done outside the US by non-US citizens (we’re talking about wikileaks here, rather than the release of docs *to* wikileaks, which involved a US citizen I believe. But that is quite distinct from Wikileak’s subsequent acts) is distinctly dubious.

    How come you didn’t even think of that?

    Tim adds: Because in hte example I use it’s an irrelevant distinction. Recall that the Murphmeister really does say that Switzerland is declaring war (no, really, he has said this) on the UK by having different tax and secrecy laws from the UK……

  2. I’m really not sure about this in terms of US 1st Amendment case law.

    Whoever sourced the material leaked to Wikileaks (and it may have been just one or several hops) was almost certainly committing an offence – whether under UCMJ or US Federal Law.

    However, US case law (Supreme Court decision) suggests that any subsequent journalistic publication (whether Wikileaks counts as “the press” for the purposes of that case law I have no idea) is not criminal. Being a common law system, of course, the precedent takes primacy over the wording as enacted.

    So, actually, there doesn’t need to be a public interest defence, because there is a Constitutional one. Of course, we then have the usual argument about whether Constitutional protections apply to non-USians (which, in many examples, they don’t.)

  3. @Tim: OK, so lets totally ignore the wikileaks stuff, which is rather irrelevant, given what you’ve added. We’re left with:

    > Which leaves us with: either the law is the law or there is a public interest defense. And if there is that latter then much of other cases dear to the British left falls apart.

    I’m still missing the logic. I think everyone (other than a very strict Hobbesian) would accept a public interest defence. How does the very existence of such a defence cause other things to fall apart, of itself?

    It doesn’t help that you haven’t quoted the argument you’re attacking (we’re not all familiar with all your enemies). What you claim to be attacking is:

    “More than that, they’re whatever Parliament intended they should be. Not coughing up whatever the tyranny of the majority demands is thus criminal activity”

    How is that affected by the PI defence? Your enemies are claiming, according to you, that X is a criminal activity. They aren’t stating that there is no PI defence (as far as I can see). Indeed, isn’t it *necessary* that they should call X a criminal act in order for the concept of PI defence to come into play?

    Unless you’re also claiming your enemies say

    “the concept that anything at all that is encoded into law, or even meant to be so encoded, is just and righteous”

    but I find that implausible. You’d need to actually quote them, rather than supply your own sweeping paraphrase, to make that likely.

  4. Criminalising acts done outside the US by non-US citizens is distinctly dubious.

    It may be dubious but it is rather common for the US and increasingly so for other countries.

    Doesn’t it depend on what the act is alleged to be?

    If it is conspiracy to commit espionage, for example?

  5. Sorry, but extra-territoriality is a power grab often made by empires in their death throes and the United States is no different.

    Both the Rome and the British Empire tried the same in their dying days and were (eventually) rebuffed.

    If I commit a crime in the UK, but targeting the United States (for example hacking the US DOD Computers looking for evidence of aliens), then any crime that has been committed, was committed on UK soil, under UK jurisdiction and should be dealt there.

    This means that if the Crown Prosecution Service reviews the case and decides that there is insufficient evidence for a prosecution, then that is it – game over.

    For the United States to demand extra-territorial jurisdiction over a UK based hacker over and above the Crown Prosecution Service is both a perversion of natural justice and fundamentally illiberal.

    Extradition proceedings should have one purpose and one purpose only, which is to return fugitives from justice (of whatever nationality) to the jurisdiction where the crime occurred and even then only when prima facie evidence of the crime implicating the defendant have been presented in a court of law.

    Both the UK/US Extradition treaty and the EU Arrest Warrant fail in that they have insufficient safeguards preventing unwarranted / unjustified extradition without demonstrable proof.

    That being said, I still think there is reasonable evidence to extradite Julian Assange to Sweden on a category 3 rape charge.

  6. @ William M Connolley #5
    NO, there is no “public interest” defence to most crimes. If you want to suggest one for rape you will be drowned in a second.
    Exposure of government malfeasance applies in a few cases, tax avoidance – what??? I think that it does not apply to most wikileaks examples and *absolutely* not to naming Afghan informers who told their government who the Taliban assassins were. Anyone who read the “Daily Worker” in the 60s can understand how vicious terrorists can take over a district by assassinating the leaders if no-one knows who is doing it and how to hit back

  7. Tim:

    “OK, let’s do that. But now we’ve breached the concept that anything at all that is encoded into law, or even meant to be so encoded, is just and righteous and thus any deviation from it something to be punished as a criminal act. Which when we come to taxes means that perhaps we should be applauding the tax dodging bastards? ”

    Errr…No. Seamus is an idiot and you are not; but you are committing the slippery slope fallacy here:

    “The heart of the slippery slope fallacy lies in abusing the intuitively appreciable transitivity of implication, claiming that A leads to B, B leads to C, C leads to D and so on, until one finally claims that A leads to Z. While this is formally valid when the premises are taken as a given, each of those contingencies needs to be factually established before the relevant conclusion can be drawn.”

    http://en.wikipedia.org/wiki/Slippery_slope

  8. Jogn Galt (#9), surely legal jurisdiction is broader than that?

    If I standing on the cliffs in England, and am killed by a Frenchman shooting a rocket from France, has England no legitimate jurisdiction?

    Similarly where there is less physical damage (e.g. computer hacking, fraud or counterfeit currency), deliberately caused in a country from outside, isn’t there a legitimate jurisdiction by the country that suffered the damage?

  9. Doesn’t it depend on what the act is alleged to be?

    If it is conspiracy to commit espionage, for example?

    I don’t think so – and I’ll hold my hand up to thinking that the UK Computer Misuse Act is wrong in this respect (it merely requires that the packets transit the UK). It would be daft to expect that the head of a foreign intelligence service would be doing anything other than his job if he placed spies in your country. The spies themselves are probably committing offences – and some of them will have Vienna Convention cover.

    But, no. I think that William’s point is arguable, even reasonable. When in Rome etc. But we shouldn’t require that people in Rome behave, in Rome, as we insist we should at home.

    Interestingly, I used to work for the guy who interrogated Alfredo Astiz after he surrendered at South Georgia. He said, of all the things he heard during that war, Astiz was the one thing that still made him feel unclean. But, under the Geneva Conventions, we had no excuse (there not being an ICC at that point and I’m not sure now what would take precedence) but to send him home.

  10. “It may be dubious but it is rather common for the US and increasingly so for other countries.”

    The world has changed. We have an internet now. I rather like the idea of the internet being a global thing, rather than having lots of unconnected little internets so that people can’t do bad things in country A and broadcast them to country B.

    If a nation wishes to criminalise an act, then it is free to do so. Whatever that act may be, and wherever that act be perpetrated. I have no beef with that at all.

    It then falls on individual nations to decide whether they wish to co-operate in the enforcement of such laws, or assist in the punishment of perpetrators.

  11. The world has changed. We have an internet now.

    And the world changed with steam powered rail and ships. And the world changed with airlines. And with cheap travel for the masses. And with mobile telephony. And, as you say, the interwebs. And since then, with social media. And it will undoubtedly change again.

    Yet are all of these, especially in sum, excuses for ever ratcheting up government power?

  12. “Yet are all of these, especially in sum, excuses for ever ratcheting up government power?”

    I get the point… but the alternative is that we have a system of law based only on the world as it was when man first devised a system of law.

    As the world changes, so will the law. That principle is sound. We can quibble over what those changes are.

    In terms of the internet, if we’re going to have it as a global thing then either the law is going to need to have some global impact… or we should scrap all those laws which dictate what one may publish, by any means, within nation states. Otherwise there are a whole bunch of other absurdities.

    I’m quite happy for someone to argue in favour of the second option.

  13. There is an interesting question on where one draws the line on responsibility.

    Suppose I create a website that automatically publishes material submitted to it, and I create it such that the source of said material is untraceable.

    Suppose that someone then sends it information, and it publishes this information, that the US finds the publication of which to be against its national interest.

    Have I committed a crime?

  14. The NYT has been leaking military secrets for years: from flight paths into Baghdad International at the height of the insurrection to the NSA surveillance of SWIFT.
    The NYT has not been prosecuted.
    Goose, meet gander.

  15. @Mark in Mayenne
    Yes, if you live in or are a citizen of the USA.
    And the mirror image applies to China (and almost to Russia)
    Guido Fawkes gets away with it because the UK is much freer in reality than “the land of the free”

  16. Isn’t a country perfectly entitled to legislate anything it likes, and then people are free to avoid going there, or to any country which has legislated to extradite to it. Simple.

    By the way, it’s remarkably hypocritical of WMC to be in favour of Wikileaks considering his views on open access to the data and discourse underlying climate-science. Even for someone as notoriously dishonest as him, that’s pretty good going.

  17. The NYT has not been prosecuted.
    Goose, meet gander.

    Neither, of course, has Julian Assange. Neither for publishing US secret material nor for rape. He’s under investigation for both.

    As stated in #2, the 1st Amendment and “freedom of the press” case law provide considerable protection for US journalists who publish sensitive US govt material.

    To what extent either Wikileaks counts as “journalism” or the 1st Amendment protections extend to Australians nominally resident in Ecuador but actually living in London, I’ll leave to people with a deeper knowledge of the practical application of US Constitutional defences.

  18. Anyway, shouldn’t we be cheering that fact that the US actually want to prosecute somebody?

    Rather than merely dumping them to rot in Guantanamo or, worse, renditioning them to be tortured in some 2nd or 2rd world hell-hole?

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