"SHIELD" Act

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hypewaders

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http://www.lawfareblog.com/2010/12/espionage-act-amendments/

http://www.scribd.com/doc/44561925/Shield-Act

http://www.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_37.html

The SHIELD Act (surely the most deceptively-labeled bill since the Patriot Act) would render investigative journalism pertaining to covert US govt activities a crime.

I don't see how this could pass even a cursory evaluation of Constitutionality- unless basic checks and balances break down in some deeper government crisis in the near future.

I'm afraid for my country.
 
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I find it facinating that the US would use the name of legislation designed to protect journalists and whistle blowers and use it to atack them
 
superstring01 said:
Why? Who said it would withstand constitutional muster?

~String
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It shouldn't, but it most probably will.

The ammendments would concern Section 798 of the Code. And yes, the potential it could have against investigative journalism is huge.

The so-called SHIELD Act (Securing Human Intelligence and Enforcing Lawful Dissemination) would amend a section of the Espionage Act that already forbids publishing classified information on U.S. cryptographic secrets or overseas communications intelligence — i.e., wiretapping. The bill would extend that prohibition to information on HUMINT, human intelligence, making it a crime to publish information “concerning the identity of a classified source or informant of an element of the intelligence community of the United States,” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to U.S. interests.

Leaking such information in the first place is already a crime, so the measure is aimed squarely at publishers.

-------------------------------------------------

Lieberman’s proposed solution to WikiLeaks could have implications for journalists reporting on some of the more unsavory practices of the intelligence community. For example, former Panamanian dictator Manuel Noriega was once a paid CIA asset. Would reporting that now be a crime?


(Source)
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Ah, have to love the smell of democratic hypocrisy first thing in the morning..
 
string said:
I honestly don't believe it will. We'll see.
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It reveals the ideology and agenda of the Reaganites, now in their consolidation phase - if anyone had any doubts.

There have been (Patriot Act, Military Commissions Act, etc) and will be other similar efforts, if this one fails on some technicality - the Roberts/Scalia court will not dismiss them all.

My guess is that Scalia, say, will take the "knowingly and willfully" language as sufficient protection for journalists and (in the coming absence of journalists) bloggers, etc.
 
Equal Odds

Superstring01 said:

I honestly don't believe it will. We'll see.
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I'd give equal odds; it really depends on how the issue is framed for the Court, and how the Court frames its response.

Up here in Washington state, we're still arguing about whether or not people who seek to influence the public trust should be hidden from the public record—e.g., whether people who sign a petition to put a citizen initiative on the ballot should be exempt from listing in the public record.

Even though the U.S. Supreme Court has upheld Washington's law that says ballot-measure petitions are public records, the drawn-out battle over whether to release Referendum 71 petition signatures is not over.

The high court ruled Thursday in an 8-1 decision, with Justice Clarence Thomas dissenting, that disclosing the identities of petition-signers does not, generally, violate the First Amendment.

But the justices also said their decision "does not foreclose success" should Ref. 71 sponsors decide to pursue an exemption in a lower court — which the sponsors said they will do.

(Tu and Song)​

We still haven't seen the names. After all, as the petition supporters assert, their right to free speech would be damaged if other people had information affecting how they might choose to exercise their own freedom.

True, the public got an 8-1 decision from the Supreme Court, but it apparently doesn't mean a damn thing.

And I think public perception of the Citizens United decision also affects people's projections of how the Supreme Court will look at other speech cases.

Perhaps when the Court rules in June on Snyder v. Phelps, and we find out whether bad counsel (e.g., Margie Phelps) will be enough to wreck the historically-appropriate outcome, we'll know a bit more about where the Court is actually going in relation to free speech.

By my reading of the Constitution, there comes a point at which the government's legitimate interest in secrecy is simply overruled by the Preamble, but while justices have historically looked to that section for guidance, it does not necessarily seem to be treated as a binding part of the Constutition. For me, the stopping point comes in "secur[ing] the Blessings of Liberty to ourselves and our Posterity". Comparatively, I don't see how knowing that our diplomats think Berlusconi is a dick, or that Saudi Arabia is enmeshed in a regional power struggle with Iran, hinders the government's ability to "provide for the common defence".

But that's just me.

In the end, I give even odds because it's hard to count the justices on this one:

Uphold SHIELD

• J. Clarence Thomas
• J. Antonin Scalia

Reject SHIELD

• J. Stephen Breyer
• J. Ruth Bader Ginsburg

Toss-up (leaning Uphold)

• C.J. John Roberts
• J. Samuel Alito

Toss-up (leaning Reject)

• J. Sonia Sotomayor

Toss-up (unpredictable)

• J. Anthony Kennedy
• J. Elena Kagan​

If we get a 4-4 split, Kennedy will probably follow Roberts. I would predict either a 6-3 (incl. Kennedy and Kagan) or 5-4 to uphold, or a 6-3 (Alito, Scalia, Thomas in dissent) to reject. In other words, I can't predict it at all. (There's even a slender possibility, depending on how the question is framed, that Thomas would stand alone as dissent in an 8-1 decision against SHIELD. I don't consider that a likely outcome.)
____________________

Notes:

Tu, Janet I and Kyung M. Song. "Ref. 71 signatures are public, Supreme Court rules". The Seattle Times. June 24, 2010. SeattleTimes.NWSource.com. December 16, 2010. http://seattletimes.nwsource.com/html/localnews/2012196559_scotus25m.html

SCOTUSblog. "Citizens United v. Federal Election Commission". 2010. SCOTUSblog.com. December 16, 2010. http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/

Epps, Garrett. "Westboro Baptist Church's Surreal Day in Court". The Atlantic. October 6, 2010. TheAtlantic.com. December 16, 2010. http://www.theatlantic.com/national...o-baptist-churchs-surreal-day-in-court/64167/

"United States Constitution". 1992. Legal Information Institute at Cornell University Law School. December 16, 2010. http://topics.law.cornell.edu/constitution
 
so what will happen to the local newspapers that published the leaked cables? i heard the airforce had blocked access to nyt and the guardian on its computer network
 
(Insert title here)

Gustav said:

so what will happen to the local newspapers that published the leaked cables? i heard the airforce had blocked access to nyt and the guardian on its computer network
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You have heard correctly regarding the Air Force.

The SHIELD Amendments would seem to subject newspapers to criminal prosecution for publishing leaked information subject to certain classifications, which the amendments would add to.

Penalties at present include asset forfeiture—which could include the news agencies themselves—and up to ten years incarceration for the individuals involved.
____________________

Notes:

Schmitt, Eric. "Air Force Blocks Sites That Posted Secret Cables". The New York Times. December 15, 2010; page A6. NYTimes.com. December 16, 2010. http://www.nytimes.com/2010/12/15/us/15wiki.html

"Title 18, Part 1, Chapter 37, § 798." U.S. Code. (n.d.) Legal Information Institute at Cornell University Law School. December 16, 2010. http://www.law.cornell.edu/uscode/18/usc_sec_18_00000798----000-.html
 
hypewaders said:
I don't see how this could pass even a cursory evaluation of Constitutionality- unless basic checks and balances break down in some deeper government crisis in the near future.
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Speaking of checks and balances, people are jumping the gun here. This thing isn't yet out of Congress, let alone being pursued by the executive, let alone producing court challenges.
 
Let's hope it gets no further. I worry about having something this tyrannical loaded and ready for the fast track in a new national crisis.
 
Speaking of checks and balances, people are jumping the gun here. This thing isn't yet out of Congress,
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That's the time to jump.

We should wait until it is out of Congress? Kind of late.

The revelation is of a fairly serious danger - these are not fringe politicians, with no influence, sponsoring this thing.
 
hypewaders said:
http://www.lawfareblog.com/2010/12/espionage-act-amendments/

http://www.scribd.com/doc/44561925/Shield-Act

http://www.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_37.html

The SHIELD Act (surely the most deceptively-labeled bill since the Patriot Act) would render investigative journalism pertaining to covert US govt activities a crime.

I don't see how this could pass even a cursory evaluation of Constitutionality- unless basic checks and balances break down in some deeper government crisis in the near future.

I'm afraid for my country.
Click to expand...

Well if the Patriot Act could get through without anyone so much as batting an eye then I see nothing stopping the progress, continuation and tightening of the police state.

The time to be afraid for your country began a long time ago.

The patriot act was unconstitutional from the beginning:

The Department of Justice, with little input from Congress and the American people, is developing follow-on legislation - the Domestic Security Enhancement Act (nicknamed Patriot II) -- which would greatly expand Patriot’s already sweeping powers.

The federal government has turned American freedoms into a world wide mockery with their unchecked spying on ordinary Americans, part of a broad pattern of the executive branch using "national security” and or “suspected terrorism " as an excuse for encroaching on the privacy and free speech rights of Americans without adequate oversight. It eliminates many protections against unlawful imprisonment and now many rights in U.S. legal system are absent — such as the important right of habeas corpus Consortiumnews.com

As written the act violates due process for all Americans. All the president has to do is call a citizen an “enemy combatant,” and the person’s due process rights disappear. The US Government says that U.S. citizens can be detained and then tried in secret trials - in absentia, and can use secret evidence that the accused cannot see or challenge. If evidence is obtained by coercion, or torture government lawyers contend that it should still be allowed as a basis for conviction, there by erasing 300 years of Anglo-American jurisprudence.The shameful demise of due process - Editorials & Commentary ...

http://www.examiner.com/la-in-los-angeles/patriot-act-unconstitutional

http://www.msnbc.msn.com/id/20999950/ns/us_news-security/


"It is critical that we, as a democratic nation, pay close attention to traditional Fourth Amendment principles," wrote Judge Ann Aiken of the U.S. District Court for the District of Oregon in her 44-page decision. "The Fourth Amendment has served this nation well for 220 years, through many other perils."

http://articles.cnn.com/2007-09-26/...ayfield-fourth-amendment-patriot-act?_s=PM:US
 
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iceaura said:
We should wait until it is out of Congress?
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To speculate on how the Supreme Court will react to it? I'd say yes - and probably one should also wait until the executive signs it in to law and some party with standing files an actual lawsuit about it, if one desires any real accuracy in speculations about the Supreme Court.

But, by all means, write to your Congressmen now.
 
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