American political and legal responses to Julian Assange and Wikileaks demonstrate a flagrant disregard for established conventions such as the Rule of Law, and reveal American politicians and their legal cohorts as nothing short of arrogant, idiotic thugs. (Apologies to any thugees for any unintended insult there.)
Secretary of State Hillary Clinton and Sen. Dianne Feinstein (D-Calif.), the chairwoman of the Senate Select Committee on Intelligence, among others, have called for an espionage prosecution of WikiLeaks founder Julian Assange. The thrust of their argument is that Assange has violated § 793(e) of the Espionage Act by willfully releasing U.S. documents and information relating to the national defense that he had reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.
There are 2 points there.
- That he violated § 793(e) of the Espionage Act
- Some injury could be caused to the US or some advantage given to another country
The first point assumes that US law extends world wide. Ahem. Where do these people get off assuming that they can enforce their laws throughout the rest of the world? Do the words delusional and insane ring any bells?
The US accounts for about 4.51% of the world population (http://en.wikipedia.org/wiki/World_population#Largest_populations_by_country). Are we to assume that this small minority is to rule over the rest of us?
Yet the U.S. Department of Justice (DOJ) has maintained a stony silence on the prospects for such a prosecution and has only stated that it is investigating the matter.
They’re probably silent because they have no legal way to prosecute a foreign national for something they did outside the US and outside US jurisdiction.
Indeed, it is more than likely that no such prosecution will occur. This is in direct contrast to the fate of the original leaker, Pfc. Bradley Manning. Manning, whether under § 793(e) or other related charges, will likely spend the remainder of his life in a military prison.
What differentiates the destinies of Manning, the leaker, and Assange, the publisher, under the Espionage Act? The result is explained by the exercise of prosecutorial discretion by the attorney general.
Let me translate that into English: Get ready for some slick bullshit.
On one hand, Manning is, quite frankly, a dead duck.
This is true. And also where the truth basically stops.
While on duty in Afghanistan, he downloaded 251,287 State Department documents and passed them through unknown intermediaries to WikiLeaks. Manning’s fate is illuminated by the court-martial of Lt. Cmdr. Matthew Diaz. Diaz was a staff judge advocate at the Guantánamo Bay, Cuba, detention facility. Contrary to orders, Diaz downloaded a classified list of detainees (through the very computer system Manning used) and conveyed it to a private attorney in New York. In a manner decidedly less sophisticated than Manning’s use of an external memory device, Diaz transmitted the information by cutting the printout of names into 20 strips and mailing the strips in a Valentine’s card to the attorney. The attorney turned Diaz in to the Navy, presumably motivated by a healthy fear of the Espionage Act provision that punishes receivers of classified information.
Diaz’s lawyer violated laws by doing that. I wonder if he was prosecuted for that…
Diaz’s sentence was affirmed last July and there is no material difference between his case and Manning’s under the espionage statute except the magnitude of the disclosure. As Diaz went, so goes Manning.
And so ends truth.
Assange’s case is not materially different from Manning’s except that he is the receiver of the documents, not the original thief.
This is blatantly false. Assange is under no obligation, moral, ethical or legal, to comply with any US laws. He is not a citizen of the US. He was not in any US jurisdiction. He was not under the employ of any US government agency.
Assange obtains no cover from the First Amendment.
How is the First Amendment even relevant? He’s not in the US. He’s not a US citizen.
However, let’s entertain this fantasy. Let’s assume that the right to free speech is an issue. Let’s then rephrase that last sentence:
Assange has no right to free speech.
Or perhaps a weaker version:
Assange obtains no cover from the right to free speech.
Let’s call a spade a fucking shovel. The right to free speech is a basic right and when it is limited by a government, we call that censorship and oppression. Free speech can only be voluntarily limited by someone who chooses to limit their speech.
Justice Byron White, in his dissent in the Pentagon Papers case, undisputedly stated that prior restraint of publication would rarely be allowed but that post-publication prosecution was not automatically barred.
In other words, “you are free to speak, but then we are free to throw you in prison.” Seriously. WTF? This boils down to basic human rights only being applicable when it is convenient. Otherwise, the US government feels no obligation to honor its word and no obligation to honor its commitments.
Congress “has apparently been satisfied to rely on criminal sanctions [in the Espionage Act] and their deterrent effect on the responsible, as well as the irresponsible, press.”
Here “responsible press” means nothing more than “those we like” and “irresponsible press” means nothing more than “those we don’t like”. Flipping that around a bit, it could be a matter of “those that like/dislike us”.
As with Manning, there is no dispute that the State Department information was enough to trigger the application of the statute to Assange.
Yes there is a fucking dispute! How does the US justify applying its laws world wide? This is the dispute.
The stolen material was related to various national defense issues and, indeed, everything Manning took was from a U.S. computer system that provided access to documents with a “Secret” classification. Then, all of it was transmitted to Assange.
So? Is there a point here? It is not a criminal offense to receive information in most countries.
The inclusion of the trivial in the diplomatic cables does not vitiate the importance of the major revelations to the national defense or the injury done to U.S. diplomatic relations from their revelation. For instance, the information on Korea in various published cables ranges from North Korea’s desire to have an Eric Clapton concert in Pyongyang to please Kim Jong Il’s second son to the assertion by a Chinese government official that China would support the reunification of Korea under the control of Seoul.
None of that is relevant. “North Korea’s desire to have an Eric Clapton concert in Pyongyang to please Kim Jong Il’s second son” only makes North Korea look more insane, and that’s not an offense according to the Americans, but is it any less embarassing for the North Koreans?
Injury to the US is irrelevant. Nobody causes more injury to the US than the US government. The injury isn’t caused by Wikileaks; the injury is caused by the US government. It’s pretty simple: Don’t do things that you are ashamed of doing.
Clinton’s argument that the release of such documents causes an injury to national interests or defense because they cause foreign sources of information to dry up seems intuitively true.
Ahem… Did she just say what I thought she said? Let me phrase that:
Clinton’s argument that the release of such documents causes an injury to national interests or defense because they make it harder for US espionage efforts seems intuitively true.
So, it’s ok for YOU to engauge in espionage, but nobody else?
Ahem… Rule of Law.
That bears repeating…
Ahem… *cough* fuck you *cough* RULE OF LAW.
Under the Espionage Act, a leaker or subsequent publisher who makes a conscious choice to communicate secret government information has acted willfully under the act and has little to argue about innocent intent.
That would be fine and grand IF US jurisdiction applied world wide. This is not “the United States of Planet Earth”.
Indeed, Assange openly declared on the WikiLeaks Web site that WikiLeaks seeks to reveal secret information to increase governmental transparency. WikiLeaks “provide[s] an innovative, secure and anonymous way for independent sources…to leak information to our journalists” and “publish[es] material…while keeping the identity of our sources anonymous, thus providing a universal way for the revealing of suppressed and censored injustices.”
Material is sent to WikiLeaks via various clandestine means such as an electronic drop box, and sources are explicitly protected by technical means such as the deliberate refusal to maintain transmission logs.
“Clandestine means”? Electronic drop boxes are used world wide by every day people. I use them myself. There is nothing clandestine about them. They are standard tools used in numerous industries. Most of us call it “FTP” though.
As for refusing to maintain logs, there is nothing illegal about that. After seeing just how horribly the US government behaves, it would probably be a good idea for more people to not maintain logs.
In fact, until recent revisions made under the current threat of prosecution, the Web site provided direct evidence of specific intent to encourage leaking, to conspire with the leakers to publish the information and to publish the material without regard to legal consequences.
Again, if we lived in the United States of Planet Earth, that might mean something. It is not the business of the United States of America to inflict its laws on the rest of the planet.
One major hole in the case against Assange is the lack of any evidence that Manning gave the information to Assange. Manning reportedly will not cooperate with prosecutors and one of Manning’s confidants, Adrian Lamo, apparently has nothing other than his memory to confirm that Manning told him that the material was sent to Assange. In addition, Lamo claims that the FBI has the Manning information, as it has seized his hard drive. However, even without their testimony, it is perfectly clear that Manning had the information and that Assange received, edited and published it. Res ipsa loquitur.
This is more harping on the same old points. It doesn’t address anything.
Why, then, would Assange escape the legal consequences of WikiLeaks’ publications? Initially, it appears that no publisher has ever been prosecuted under the Espionage Act. For example, in 1942, the Chicago Tribune published a news story on the Battle of Midway that stated that the United States had broken Japanese codes and yet avoided prosecution. DOJ seems to maintain an unwritten policy against publisher prosecution.
Ahem. Rule of Law. They’re playing favorites. Stop making excuses.
It is not commonly recognized that the WikiLeaks disclosure of the State Department material was done in concert with The New York Times, The Guardian, Der Spiegel, Le Monde and El País. WikiLeaks gave each news organization access to State Department material prior to publication, allowed each to edit and develop stories from the material and coordinated the release of those stories. In terms of legal liability, the first group in jeopardy is Assange and these five publishers, and then essentially all world media that rebroadcast the material.
Again, the height of American arrogance in assuming that it can inflict its laws on the rest of the world. “All world media that rebroadcast the material”. Ahem. They’re not in the US. How can you prosecute people that don’t live inside of your jurisdiction?
In other words, Assange arranged for these five principal world news organizations to be co-equal publishers with WikiLeaks. As such, they are co-equally guilty with Assange under the Espionage Act.
The arrogance is unmatched.
To charge Assange and not charge, for example, The New York Times, would lead to devastating charges of unfairness both outside and inside the courtroom. As Assange is guilty, so are the five publications.
Arrogance in the extreme. Veiled under the guise of “unfairness”? Ahem. Rule of Law.
These people have no level that they will not stoop to. They are deluded, evil, vindictive, and dangerous.
Assange, partly as a result of financial pressures, now plans to begin sharing the State Department materials with a wider group of news organizations. Is DOJ then going to charge all these news organizations as co-defendants? The answer is obviously “No” and is based on the traditional discretion of the prosecutor to refrain from charging every crime that could be charged against every individual who might be a criminal. DOJ will not create such a distinguished list of media defendants and become the laughingstock of Western democracy.
They already are a laughingstock. What’s really stopping them? The fact that they simply cannot do it. They might have a lot of power, but for the “Department of Justice” to attempt to prosecute every major news agency and countless individuals world wide is sheer insanity.
In summary, let’s sweep away the tendentious arguments that Assange should not be extradited to the United States or that it is a violation of due process or other constitutional rights to prosecute him.
Oh, so ignore perfectly good reasons not to prosecute Assange because you can find more?
Any fair analysis of the Espionage Act shows that he is chargeable,
No. It doesn’t. It shows the opposite.
Any fair analysis of the Espionage Act shows that he is chargeable, and yet any fair analysis of the political reality indicates that he is untouchable. The administration is faced with an impossible dilemma — WikiLeaks is joined at the hip with The New York Times et al., and its unofficial policy against charging news organizations protects them all. WikiLeaks, whether acting out of magnanimity or cleverness, cut the major news sources into the deal and in return gained functional immunity from prosecution for espionage.
Immunity from a prosecution that would be illegal anyways.
However, WikiLeaks’ magnanimity or cleverness may not be sufficient to avoid all legal liability.
Again, there’s nothing legal about running around the world harassing people. Wikileaks has no legal liability to the US. They are not in the US. They are not subject to US laws.
Its previous Web site language and numerous public statements made by Assange are sufficient to maintain a charge of conspiracy with Manning and the unidentified intermediaries to leak and publish the material. This was the theory bruited about by Vice President Joe Biden recently.
And Vice President Joe Biden is just as evil an asshole as the rest.
Such a charge avoids the issue of involving the news organizations, as the conspiracy encompasses the first stage of obtaining and transmitting the information by the very means so explicitly set forth on the Web site.
So in other words, you are trying to be clever in how you prosecute “crime”. You are purposefully ignoring “crime” over here, but going after it over “there”.
RULE OF FUCKING LAW PEOPLE! RULE OF FUCKING LAW!
But, as pointed out, Manning and Lamo have not been forthcoming in detailing how the material was transmitted to Assange, and WikiLeaks is quite emphatic in stating that there is no electronic trail between leaker and publisher. And even if either cooperated with prosecutors, the prosecution turns on Manning’s or Lamo’s words alone and the inference that the conspiracy occurred because the material was taken and subsequently published. This inference might not satisfy the technical requirement for objective corroboration of the conspiracy, and there is certainly the practical problem that the testimony of Manning or Lamo simply might not convince a jury.
Allow me to translate part of that into meaningful, straight, truthful English:
“There is certainly the practical problem that the testimony of Manning or Lamo simply might not win in kangaroo court.”
Make no mistake. Manning will not receive a fair trial, if he even gets one.
In addition, there are ancillary charges of theft, conspiracy to steal and evasion of various secrecy rules, which might be explored as a basis for prosecution. In the end, there is a distinct possibility that, although Assange may avoid espionage charges, he may suffer some criminal conviction.
RULE OF LAW. RULE OF LAW. RULE OF LAW.
This shows that the US attitude is to simply go after people that they do not like, and think that they can get. Saying, “he may suffer some criminal conviction” shows an attitude of desperation, desperate to “get him” at any cost and for any reason.
Whatever the outcome of DOJ’s current investigation, there is no certainty that any prosecution will occur soon. The United States is second in extradition priority in the United Kingdom to Sweden, and Assange seems determined to fight the extradition. In light of the uncertainty concerning the espionage and related conspiracy charges, the attorney general will probably allocate more time to making a deal for cooperation with Manning and Lamo, discovering intermediaries and intermediate transactions and, in general, giving form to the interstitial steps taken prior to the actual delivery of the materials to WikiLeaks.
James Ching is a former supervising deputy attorney general at the California Department of Justice.
James Ching accurately represents the deep-rooted evil in the United States of America’s government and legal system.