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ACM Home arrow Convenor's Column arrow The Constitution and national security

The Constitution and national security Print E-mail
Written by Professor David Flint AM   
Wednesday, 04 August 2010

The problem of how to deal with the publication by WikiLeaks of secret US government information, including details of  Afghan informers, can only be understood in its American constitutional context. 

It demonstrates yet again the advantages of the constitutional system we have inherited. We would be foolish to change it because of some irrational hatred of our oldest constitutional institution by what is a small but noisy minority.

The first duty of the government of the Commonwealth is the defence of the Realm, and that is what is imperilled as a result of the publication and further publication of secret information. The long term consequences on the availability of intelligence could be serious.

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...free speech in Australia and the US...



The problem is that White House is so mesmerised by the myths which have been propagated about the 1971 Pentagon Papers Case that it has not even tried to seek an injunction to restrain publication by WikiLeaks of further details of those Afghans who have cooperated with NATO forces – and other information crucial to the Afghan campaign. The can be no doubt that at least an interim injunction to restrain Wikileaks would be available in Australia, so why can’t the US government obtain one in the US?

Both Australia and the United States inherited the same protection of freedom of speech under the common law. The US Bill of Rights merely declared that the common law principles as they emerged in the Glorious Revolution constrained the new federal Congress and government. (Without that there would have been no United States, a point not understood in President Obama’s inaugural address as readers of the is column may recall.)

The Australian High Court has found an implied freedom of political speech in our Constitution. That is precisely what the Founding Fathers of the United States intended. Their original intention has been lost through judicial interpretation which has given constitutional protection to indecent speech, almost abolished defamation law and used the First amendment as a tool of atheistic secularism.   How did the US Supreme Court get it so wrong? Much has to do with the politicisation of the judges who cannot look to a non- political Crown to place their allegiance and whose appointment has been corrupted by the Senate confirmation process.



...intelligence and defence...



Not only is the publication of this purloined information obviously a potential death sentence for those named and possibly those close to them.  It means that further cooperation by just about anybody with allied intelligence in this and any future conflict will obviously be highly unlikely.

This cutting off of a signal source of intelligence will not only seriously endanger allied and Australian service men and women, it could contribute significantly to the defeat of our forces in this and future conflicts.

 It is of course inconceivable that the Wikileaks founder Julian Assange did not realise that publication would lead to retribution.

Blaming the White House for doing nothing to help WikiLeaks vet the data is a lame attempt to justify his treachery.

He has attempted to defend the indefensible with the claim that many informers in Afghanistan were ‘‘acting in a criminal way’’ by sharing false information with NATO.

Just who is Assange to decide what is or is not criminal, and what would justify a Taliban death sentence?

He claims no one has been harmed. How does he know? Or has he perhaps had some assurance about this from the Taliban? If so believing in free speech he should reveal this.

And in the event that anyone comes to harm he offers the utterly pathetic plea that “that would be a matter of deep regret.”





...free speech after Pentagon Papers...



 

The Administration seems to have swallowed the myth since the Pentagon Papers case anything and everything can be published, even if it seriously compromises national security, our agents and supporters are murdered and no one with any sense ever cooperates with the West again.

To understand how ridiculous this proposition is, imagine that a British newspaper or the BBC had discovered that in the Second World War the UK had broken the Enigma Code. Or that unbeknownst to the Nazis, the British had invented and were using radar.

Imagine the unimaginable, that the media was so treacherous that they actually published this.

It is not difficult to realise how many allied lives would have been lost if this had happened.  Such treason would have been punished with the supreme penalty - and rightly so.



...what the Court said...



 The Supreme Court of course did not decide that the Constitution authorised such treachery.

All that was decided was that the Nixon administration had not made out a case sufficient to justify making permanent an interim injunction restraining the New York Times and the Washington Post from publishing compromising material relating to the Vietnam war. 

The Court said the government carried the “heavy  burden of showing justification for the imposition of such a restraint. “

The Court did not say the government could never satisfy that burden. But that seems to be the interpretation of the case which prevails in Washington today.

One of the concurring judges, Justice Brennan, emphasised the very point that in an appropriate case the government could restrain publication. For example, if the government could prove that publication must “inevitably, directly, and immediately cause the occurrence of an event kindred to imperilling the safety of a transport already at sea,” this would be sufficient to support at least an interim restraining order.




...First Amendment...

  

Now it is true that two of the nine judges would have given the First Amendment the literalist interpretation that it means anything can be published, no matter how much it would imperil the defence of the nation.

The First Amendment does provide that "Congress shall make no law . . . abridging the freedom of speech, or of the press."

But to interpret this literally is to contradict the very clear original intention of the Founding Fathers.

One of the literalist judges Justice Black  painted a florid and exaggerated view of its  adoption.  He said that under it “the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

This is fine rhetoric but it is not what the Founding Fathers actually did. In fact they would be surprised by the literalist interpretation of the First Amendment, just as they would with the anti-religious interpretation given these days to the other aspect of the First Amendment.  This is that there not be a federally established church.

After it became clear the Constitution was not acceptable to all states because some were wary of the new federal entity, the Founding Fathers had  agreed on a political compromise which would ensure all of the  13 former British colonies actually joined the new United States.

So ten amendments were made to the Constitution, called the  Bill of Rights.  The   restrictions in the Bill reflected the restrictions on the British government which dated from the 1688 Glorious Revolution in England. They were enacted only to restrain the new Congress and the Federal Government and not the states. They were certainly not enacted to create rights.

The First Amendment was not enacted to put journalists or those who write on the web outside of the law, or entitle them to imperil and undermine the defence of the United States. It was to reflect the freedom of speech imported from Britain and  then prevailing in the colonies against a new centralising entity.

Unfortunately the Obama administration is paralysed by the extremely liberal interpretation of the Pentagon Papers case. And the Western alliance is endangered by this paralysis.




...the PM and the President...

 



This affair demonstrates the strength of our constitutional system.

In the meantime, there are good reasons to suggest that Prime Minister Gillard, with the support of the alternative Prime Minister Tony Abbott, should encourage President Obama and where appropriate Prime Minister Cameron to do four things.

First, to seek an interim injunction to restrain further publication.

Second, for more abundant caution, to persuade congressional leaders to rush through legislation authorising this.

Third, to ensure the authorities take such action as is justified for the prosecution of those involved in this breach of official and necessary secrets related to the conduct of the war.

Fourth, to undertake an urgent review of the access that officials have to sensitive information which they have no need to know.

 
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