Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I have not been a big fan of Wikileaks. I believe in diplomacy and the rule of law as cornerstones of a civilized society. But the recent revelations about a clandestine campaign to discredit Wikileaks supporters forces reconsideration of a pro-state, anti-Wikileaks position.
According to numerous press accounts, the DOJ advised Bank of America (BofA) to consult with a law firm that, in turn, consulted with "security firms" about how to address possible revelations from Wikileaks about BofA. A leaked report "suggested numerous ways to destroy WikiLeaks . . . including planting fake documents with the group and then attacking them when published; 'creat[ing] concern over the security' of the site; 'cyber attacks against the infrastructure to get data on document submitters.'"
If such actions were commissioned as part of a broad plan to protect national security, I could understand them. But what's truly astonishing here is that the government seems to be encouraging a megabank to engage in questionable surveillance and smear tactics, while itself lacking even basic modes of understanding what's going on in our "too big to fail" behemoths.
SEC Chair Mary Schapiro recently observed that "the technology for collecting data and surveilling our markets is often as much as two decades behind the technology currently used by those we regulate." James K. Galbraith has documented that, "after 9/11 500 FBI agents assigned to financial fraud were reassigned to counter–terrorism and (what is not understandable) they were never replaced." As the financial economy continues to grow and dwarf the real economy in size, it becomes a potential source not merely of “systemic risk,” but of far more profound disruptions. Nevertheless, high officials seem more committed to pursuing those who might expose those risks, rather than the risk-takers themselves.
This asymmetry is part of a larger trend toward punishing whistleblowers. Bradley Birkenfeld was imprisoned for uncovering massive tax evasion. British police have used tear gas against UK Uncut, a group trying to call attention to tax evasion by major corporations, and have classified an 85-year-old peace activist as a "domestic extremist." In a similar situation in Maryland, "some of the so-called terrorists were actually Catholic nuns." As Danielle Citron and I have argued, there has to be some way of watching the watchers to deter civil liberties abuses. Leading law enforcement officials are also starting to agree. As noted in The Guardian recently,
Senior police officers complain that spies hired by commercial firms are – unlike their own agents – barely regulated. Sir Hugh Orde, the president of the Association of Chief Police Officers, which until recently ran the secretive national unit of undercover police officers deployed in protest groups, said in a speech last week that "the deployment by completely uncontrolled and unrestrained players in the private sector" constituted a "massive area of concern". . .
The environmental activists are angry that, by posing as a supporter, [a private sector spy] has gained access to emails and meetings where tactics and strategies are discussed. [An organizer] said: "It's frightening that in a meeting about how to stop the fossil fuel industry, the person sitting next to you might be a spy paid for by the energy giants themselves."
The question now for government is whether it prioritizes the protection of free association, or instead allows further unaccountable behavior from a shadowy private sector intelligence apparatus. Unmonitored drilling, tax evasion, and gambling is a greater threat to national security than the peaceful protesters who seek to call attention to these activities.