The release of formerly classified documents and government cables by the whistle-blower website WikiLeaks in 2010 poses a dilemma. The government often has exclusive possession of information about its policies, programs, processes, and activities that would be of great value to informed public debate. But government officials often insist that such information be kept secret, even from those to whom they are accountable –the American people. How should we resolve this dilemma? The issue is complex and has many dimensions.
Following release of the documents, the Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act was introduced in Congress. The proposed legislation would amend the Espionage Act of 1917 to make it a crime for any person knowingly and willfully to disseminate, in any manner prejudicial to the safety or interest of the United States, “any classified information . . . concerning the human intelligence activities of the United States or . . . concerning the identity of a classified source or informant” working with the intelligence community of the United States.
It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders. And yet, although a number of defendants have attempted to challenge the jurisdiction of the military commissions – especially under the MCA – none of their cases have managed to produce a decision on the merits from any court higher than the Court of Military Commission Review (CMCR). Instead, the federal courts have generally relied on ‘abstention’ doctrine, holding that challenges to the commissions, including to their jurisdiction, can – and should – be resolved on post-conviction appeal. … [T]he time has long since passed for a careful explication of the issues, the relevant precedents, and the most likely answers.
It is well known that the American Revolution was spurred in large part by the colonists’ reaction to King George’s use of the military to enforce English laws in the colonies. After the colonists had become sufficiently disgruntled by the increasingly martial measures imposed by the King, the drafters of the Declaration of Independence listed among its central complaints the tendencies of the English Crown “to render the Military independent of and superior to the Civil Power.”
Just as King Charles had been beheaded in 1649 for violating what became a fundamental Anglo- American value – that soldiers are respected for defeating enemies of the state but are never to be used against their civilian neighbors – King George lost the colonies when he employed troops to control disorderly civilians.