Wikileaks: Espionage charges against Assange said to be "imminent"


Lawyers for Julian Assange expect the United States to file spying charges against the Wikileaks frontman soon.

"Our position of course is that we don't believe it applies to Mr. Assange and that in any event he's entitled to First Amendment protection as publisher of Wikileaks and any prosecution under the Espionage Act would in my view be unconstitutional and puts at risk all media organizations in the U.S.," said attorney Jennifer Robinson.

ABC News: Assange Lawyers Prepare for U.S. Spying Indictment


  1. We all know military justice system permits torture suspect to get confession. Considering how authorities in high up are so keen to prosecute Assange, it is highly likely that they would resort to this again and force Manning to make statement that incriminate Assnage. So far, Manning has admitted to sending information to Wikileak. We’ll have to wait and see the rest.

    1. I doubt they’ll torture a high-profile white American citizen like Bradley Manning, especially when everyone knows him from that baby-faced photo where he’s in full uniform.

  2. Interesting.. if he can’t be charged with Treason because he’s not a US citizen, can he expect First Amendment protection? I’m not a lawyer, just curious.

    1. Brett. to put it as simply as possible.

      The executive branch enforces the laws made by congress.

      Congress can and did made a law defining treason, which you described fairly as non applicable.

      Congress cannot, however, make a law infringing on free speech or regulating the press. Period.

      Nothing to do with Assanges location or origination, it’s to do with their constitutionally ascribed inability to make a law (for the executive to enforce) which restricts free speech or which regulates the press.

      (also church and state)

      1. I have always thought that it is just plain wrong for any Legislature to craft a punitive “law” solely to get at the conduct of , and thus to punish, but a single individual.

  3. As far as I know, the Bill of Rights applies to everyone, US citizen or not. I realize this is more in theory than in practice, but that’s the general idea.

    1. I thought the Patriot Act with the enemy combatant bit was their way to circumvent the Constitution and Bill of Rights.

  4. “prosecution under the Espionage Act would in my view be unconstitutional ”

    Well, I wouldn’t be so sure about that under the current Supreme Court.

    I have my doubt that if the US get a hold of him if he’ll be charge with anything. He’ll simply be held forever, in one of our prisons somewhere.

  5. They are after him because they can’t go after the NY Times of the Guardian. This is serious “make and example” time and even if they have to bend the laws to until they snap they will. The law didn’t stop the war in Iraq and the law didn’t stop torture.

    The government knows that even if in 5 years they are proven to have acted wrongly.. it’s right now that matters to them and they won’t be held accountable for their actions anyway.



    Seriously though, it would not surprise me if they just conveniently ignored the Bill of Rights on grounds of people describing him as a terrorist.

    Nice to see that this Jennifer Robinson lass is talking sense though. I only hope that if this does come to pass, that people on both sides of the Courtroom have her level of common sense/decency.

  7. Hmmm…I wonder if several other Sovereigns/States are not insisting upon the US Gov taking these steps “behind the scenes” – so as to prevent THEIR dirty laundry from getting aired in the release of this information!

    As far as I can see, at least so far, it has not been the US’s Govt’s ox which has been gored by the release of these cables, but rather the Govts of others, both allies and not.

  8. mdh: “The executive branch enforces the laws made by congress.”

    I thought that was the job of the judicial branch.

    At any rate, this is a show of force. What these idiots do not realize is that this will make Assange even more of a martyr.

    1. The legislative branch makes the laws.
      The executive branch enforces (executes) the laws.
      The judicial branch interprets the laws.

    2. No, mdh got it right. Law enforcement- police work, prosecution, deciding what cases to pursue, ensuring regulatory compliance- is the executive branch’s function. The legislature writes the law. To borrow from Marbury vs. Madison, the duty of the judiciary is to say what the law is. Do the facts indicate that a law was broken? Does the law actually say what it’s writers and enforcers intended to say/thought they said? Is the law itself legal for government to enact and enforce? If multiple laws contradict one another, which takes priority?

      1. See also Andrew Jackson’s response to Worcester vs. Georgia, that “John Marshall has made his decision, now let him enforce it!”

        1. All true. But if Assange is declared an enemy or unlawful combatant, anything goes. Would the US be able to come up with a twisted, dubious case to mark him as one? Magic Eight Ball says “Odds are good”.

  9. Well, the Espionage Act of 1917 has been upheld by SCOTUS as not violating Free Speech.

    Still, unless direct links to a foreign government can be proved? I can’t see that working.

  10. As it is simply plain wrong to punish people for conduct which was legal at the time it happened, but which conduct was subsequently made illegal.

    But I’m sure neither of those things will happen here.

    1. The Espionage Act of 1917, among other things, makes it illegal to convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies. This is punishable by death or by imprisonment for not more than 30 years or both.

      Of course, if they try him under this act, virtually nobody will extradite him since the Death Penalty is potentially involved. Also it brings up the issue of applying US laws to a non-US Citizen, which opens a whole other can of worms.

      Remember when the official in Pakistan wanted the people involved in “Draw Mohammad Day” to be tried for War Crimes?

      Flat out, I just cannot see how the US can lay a legal claim here, but I’m also not an expert on international law.

      1. Flat out, I just cannot see how the US can lay a legal claim here, but I’m also not an expert on international law.

        That’s why they’re denying him bail, so the US has a little time to figure out a law that can be used against him. That it’s taking this long really says something about Obama’s blinding rage and the weakness of US law on this point.

    2. That one, at least, is covered by the prohibition against congress enacting ex post facto laws, and the prohibition against bills of attainder limits the possibilities for laws designed to punish a single person.

  11. @johnphantom The judicial branch _interprets_ the laws; the executive branch _enforces_ the laws. In SCOTUS’ current incarnation, interpretation generally inures as favorably as possible to government and the rich (which are one and the same anymore).

    @Ugly Canuck That’s called a bill of attainder and it is, in fact, unconstitutional (Article I, Section 9: No Bill of Attainder or ex post facto Law shall be passed.), however, see above re: SCOTUS.

  12. Oh, never mind, foreign nationals already HAVE been convicted under this law.

    This could get real ugly.

  13. Arch conservative relative of mine told me a few days ago he believes that Obama doesn’t want to shut up wikileaks because Obama wants to have people tear down the U.S. So according to my relative Assange is safe from assassination and other stuff. In other news same relative had no problems with wikileaks exposing the cliamtegate controversy. This makes me want to puke. Also the bizarre thinking that is fueling the anti-assange contingent makes me angry too. I may want to see some leaks related to America’s enemies show up on the site too, but that doesn’t meant I think Assange is a spy or should be subject to prosecution.

  14. This kind of thing can only make sense to those who don’t know how Wikileaks has been operating. They’ve received a large number classified documents. They are working with a number of media organizations, including the New York Times, the Guardian, Der Spiegel, Le Monde and others to review those documents and to recommend redactions. Wikileaks has so far published less than 2% of what they have, with redactions, and in most cases only after their media partners have done stories on the revelations.

    So how can Wikileaks alone be violating the Espionage Act, if the New York Times is not charged? The NYT can’t claim that they are merely reporting on what Wikileaks is doing; they are a participant.

    Furthermore, they are doing exactly what they did with the Pentagon Papers in the early 1970s.

    1. NYT VS US didn’t find that the Times hadn’t violated this act, just that the government couldn’t exercise prior restraint: only in the most extreme cases can the government actively stop publication of classified material. They can, however, kill you for it after the fact. That nobody was found guilt of espionage in the Pentagon Papers was less a function of Freedom of Speech than it was government misbehavior (Watergate, illegal wiretaps) making a fair trial unlikely.

      So yeah, Assange may very well be up the creek without a paddle. It’s a common misconception that free speech means you can speak with impunity. It only means the government can’t stop the publication, just punish you for it.

      Technically, yes, all the participating reporters could be convicted of espionage as well. It’s a question of public opinion, really: would we demand actual free press rights if they go that far? Possibly, so it’s probably more prudent to stick with taking out WikiLeaks.

      1. “It’s a common misconception that free speech means you can speak with impunity. It only means the government can’t stop the publication, just punish you for it.”

        That doesn’t make a lick of sense. Let’s just talk about little-s speech. Practically the only means government *has* of regulating speech is punishing you for it. How exactly are they going to stop you from speaking?

        You are proposing that the First Amendment only guarantees that they can’t come and take your vocal cords. Well, we can all thank Sam Adams for that, I guess!

  15. For some reason, this situation with Assange and his lawyers reminds me of a line from Inglourious Basterds. Near the end, when Landa catches the two guys and is talking to them in the restaurant… he says “if you don’t think I wouldn’t interrogate every single one of your swastika-marked survivors, we simply aren’t operating on the level of mutual respect I assumed.” and then later on they turn the tables on him and carve his head up. I feel like they have this level of naivety. As in, “well hey, we did everything right. we followed the rules. I turned myself in because I know these rape allegations are false and also I can’t legally be extradited to the US.” all the while, the authorities couldn’t give a rats ass about the rules right now, they just want to do any sort of damage control that they can.

    I have a bad feeling about this.

    1. I haven’t seen Inglourious Basterds and your post is totally incomprehensible to me.

      I don’t even know if this sentence was meant to be ironic or not: “well hey, we did everything right. we followed the rules. I turned myself in because I know these rape allegations are false and also I can’t legally be extradited to the US.”

      In case it wasn’t meant to be ironic, Assange didn’t follow the rules. He was allowed to leave Sweden on conditions that he kept in contact with the Swedish justice system, this is standard procedure in Sweden. If he hadn’t vocally accepted these conditions, he would not have been allowed to leave Sweden. Even if he isn’t guilty of the rape, he still committed a crime when he didn’t continually informed the Swedish prosecutor of his whereabouts, nor responded to the prosecutor when he was made aware that they tried to contact him. I’m actually surprised for how long they put up with his obstructions before they issued an international arrest warrant. Mind you, in many countries (USA comes to mind) Assange wouldn’t been allowed to leave the country in the first place and would either have been bailed or arrested in wait of the trial. Sweden don’t have a bail-system and don’t arrest people unless they have already proven not to be trusted to show up for the trial or that they otherwise will obstruct legal procedure if not under arrest (like if they have a history of threatening witnesses).

  16. People debating the legal merits of Assange’s case miss the point.

    Even if found not guilty, the process IS the punishment. In the same way those imprisoned at Guantanamo without due process will never get those years of their life back, Assange will certainly be out the time, energy and money required to defend himself from whatever espionage charge the U.S. government cooks up.

    The simple act of prosecution may be enough to discourage others from taking a leading role in promoting the type of transparency the American government wants to avoid.

    If you value the disclosyre WikiLeaks has brought about, it’s time to put your money where Assange’s mouth is.

  17. ~A HA! The title just changed~

    I keep reacting to people saying that he can/should be charged with TREASON and thinking the could not, by definition, have committed treason. (He’s not a US citizen.)

    Now espionage… now there’s one that might stick.

    As far as the US having legal claim here, isn’t it possible that the US’s specific claim to Assange might be irrelevant because of the number of countries that also have specific charges they can bring against him? Is any other government actively trying to do anything more than advising/threatening companies to not do business with WikiLeaks?

    Also, is it me or does it not seem a bit much that Interpol issued an arrest warrant for a sex crime? I’m not arguing the merits of doing so but it does seem like a too-thinly-veiled rationalization of them doing whatever it is that the US wants until they can figure out how/what to file in legal proceedings regarding WikiLeaks?

  18. Agree with mp_toronto’s take. This is lawyer-rattling. The US Government is pissed off at WL. It’s gonna fuck with the guy who fucked with it. And make his life as uncomfortable as possible.

  19. Considering dramatic moves against Wikileaks didn’t occur after the release of the Iraq and Afghan files, my money says there’s something really damning in one of the not-yet realeased cables.

    Obviously, the US government isn’t too concerned about the contents of the insurance file, otherwise, why would they risk release of the key?

  20. As a citizen of the UK, which has no constitutional right to free speech, I’d suggest that the 1st Amendment rights don’t apply to Assange, similarly I don’t think he can be tried for treason.

    However, if he is extradited to the US (unlikely in my opinion) then he gains all the rights afforded a US citizen.

    One of the developments that greatly disturbs me is the NZ PMs attempts to strip him of his passport, in direct contravention of the UN Declaration of Human Rights.

    This whole legal situation appears, to me at least, to be a smokescreen to hide the fact that business interests are forcing governments into positions they’d rather not take regarding this issue.

    Looking at the content (so far) of the leaks, I see nothing that damages any nations interests per se, just a lot of embarrassment for a few diplomats.

    The central question here seems to be “Should your governments be transparent?”. If the answer is yes, and I’d expect most supporters of democracy to agree too, then the leaks show that it is not. And if it isn’t, why not? Do they have something to hide from the voters?

    I’d strongly suggest that the concept of nation-states/governments actually being in control is outdated. Corporate bodies with links to our elected bodies are very persuasive when it comes to lobbying. No surprise then that so many corporate interests condemned Assange.

    Have a think, who did you vote for; your representative in Govt, or the company that pays their bills?

    1. One of the developments that greatly disturbs me is the NZ PMs attempts to strip him of his passport, in direct contravention of the UN Declaration of Human Rights.
      Assange is an Australian like me and lived for many years in my home town, Melbourne. IIRC less than a year ago Australian authorities had a discussion with him about the poor state of his passport at Melbourne airport, so I think you are wrong, Assange travels on an Australian passport.
      I am not aware of a proposal to take away his passport, though if he is charged with a crime here he could have to give his passport up to the court.
      The Australian Federal Police apparently are studying the possibility of charging Assange with a crime, though thats just an idea now.
      Incidentally I know a guy who used to know Julian Assange.This guy recalls no incidents like the one with the two Swedish women. Maybe thats out of character for him. He is a good technical guy but maybe not so hot on interpersonal skills. The kind of guy who would get the information he needs from wherever rather than asking someone for it.
      And finally: “Free Assange” graffiti is showing up around town on street signs, etc.

  21. Correct me if I am wrong, but to my knowledge no EU members extradite people when they might face death penalty abroad. At least I hope so.

  22. Perhaps the US’s best hope is to fly Bradley Manning to Sweden in a rendition flight, lock him in with Julian once his extradition goes through, and then hit Manning with a wrench until he admits to being raped by Julian while conspiring to commit espionage against the US with him… all without a condom.

    Then perhaps the US would have a credible case.

    OTOH, as the law is written; reading, linking, or discussing a cable (or anything else) that pertains to national defense can be considered Criminal Espionage as the law is written. Intent isn’t necessary to prove.

    It means all of us, with the exception of the largely illiterate DDOSers in Anonymous are guilty of espionage. In fact, Anonymous has an alibi. They were fapping to tentacle porn while DDOSing Paypal the ENTIRE TIME. They can prove they were at their computers for the last entirety of last year, and their browser histories can prove their innocence, since I’m sure they have never read the cables this is all about in the first place.

  23. I don’t see anything in the story about WHY Assange’s lawyers are expecting espionage charges to be filed soon.

    Has the US said anything? Has anyone said anything about charges being filed?

    I see a LOT of stories saying “Espionage charges may be filed” but don’t see anything that’s any more actual reporting than all of the “New iPad may have two cameras” stories.

  24. Because of our lovely extradition agreement, the US only needs to show the most superficial case in order to get him extradited (providing they agree not to execute him).

    It will be interesting to see if the new UK coalition has balls and intervenes to prevent extradition, like they haven’t quite shown yet with McKinnon.

  25. The worse this gets for Assange the better (sorry, Assange). Right now the US is going forth with blind fury to do everything they can, legal and illegal, to do damage control, to stop Assange and destroy Wikileaks. Like China, the US government is incapable of seeing how its tactics are shaping opinion and trust against it. Perhaps if this gets worse and worse and worse, it will sufficiently damage the credibility of the US’s “moral authority” attitude to actually bring some dialogue to the table about some REAL reform (i.e., not what Obama brought us).

    – USAfag here.

  26. has a petition going about this. I figure it’s worth signing.

    Could you please also just throw a simple note in’s form registering your opposition? This is, like, kind of a big deal. Conviction on this makes a good percentage of the world guilty.

    If every person in Anonymous had filled in their opposition on, my guess is that it would be making a difference in how they take this. It takes frickin’ 2 minutes. Look, I’ll even give you the link:

  27. eh screw it.

    The last time I was in any sort of agreement with the US government was when Jimmy Carter said the US wouldn’t assassinate foreign leaders. There are too many loose cannons that come out of the military industrial complex(This has been the case my entire life) to expect anything but the most egregious behavior from people that can hide their actions behind the veil of secrecy.

    According to our society, you just cannot justify coke dealing, kid fucking, ax murderers.

    Unless they work for the government- the government would have us believe.

    Until they get caught at it, and then they use the loose cannons defense.

    Over and Over And Over Again.

    If they would’ve cleaned their house in the first place, this probably wouldn’t happened. Under a very literal interpretation, Bradley Manning was a whistle-blower. If he did any of what he did because his conscience directed him to bring illegal, immoral, and unethical players out into the open, so that they could be exposed for what they were, I think that he is demonstrating the lessons of the Nuremburg trials. Just following orders is no excuse.

    The real problem appears to be that no one is watching the watchers, and it has gotten out to the press.

    One of the things I have ranted about for a long time is what the US did in in the americas. Costa Rica handed down indictments, but I don’t think anything really came of that. I still remember the last words I said to someone that I never saw again after that: ” If the US military comes, run away. You might live if you can get far enough away.” It doesn’t matter if you are not fighting against them, or anyone else. They will still kill you, and you will be dead.

    That advice is still good, but far away isn’t there anymore.

  28. Couple of different was Assange could be prosecuted. I’m not suggesting any facts or probabilities. Just possibilities. Note that several are serious crimes in most countries and could warrant extradition.

    Blackmail – He has threatened to release more material under certain conditions. If he said it in a way that could be considered blackmail, he could be in trouble.

    Trafficking in stolen goods – if he has ever suggested a quid-pro-quo for turning over or releasing information (even asking for donations so he can distribute an unpublished secret), he could be in trouble

    Inducement – If he ever suggested some sort of benefit to whoever made the original copy (even suggesting “You’ll be famous”, or “They’ll finally listen to you.”), he could be in trouble.

    Conspiracy – If he discussed the breaching of someones secrecy oath before they did it, he could be in the same boat that person is in.

    Illegal access of secured computer system – In theory, the information was secure until he opened the file. If he knew the file might contained secured information, then someone could argue knowingly breached security.

    Breaking secrecy laws of other countries- Just because the information was in the US system does not mean it belonged to the US. If it was shared confidentially with the US, then it could be covered by laws from both countries.

    If he is lucky, the data just showed up without his foreknowledge and he has not sought any personal benefit from releasing or not releasing the information. He should hav acted as a journalist at every possible step. Step outside those lines (and possibly others) and you risk stepping on a landmine.

    1. Anon #48: Gonna make him prove all those negatives, eh?

      You got any evidence of any of things taking place?

  29. Welcome to the start of America’s slow decline. First the death of the middle class, the shift to the right towards the economic elite and greater governmental control, and now the bypassing of basic rules of justice and sense.

  30. If only the Espionage Act (c. 1917) was clearly applicable.

    The US is not “at war” with anyone. Congress has approved a set of military operations, the press has called it a war, but without a congressional declaration the “War” is not a “War” in the sense of the espionage act. The last time “War” was declared by the US was WWII.

    I hate to say it, but legal standing IS a game of semantics. After all, even the case re: the pentagon papers was declared a mistrial, and the applicability of the charges were never determined, and the case was never prosecuted further, and that IS a precedent of failure to prosecute under similar circumstance.

    1. The Espionage Act (18 U.S.C. Chapter 37) is applicable. Even if we were to accept your assertion that the U.S. is not “at war” simply because there has been no declaration of war, the Espionage Act is not limited to wartime – it applies in peacetime as well.

      Here are the most relevant portions of the Espionage Act:

      18 U.S.C. § 793

      Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation … receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or … willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it … [s]hall be fined under this title or imprisoned not more than ten years, or both.

      18 U.S.C. § 794

      Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life….

      The legal case against Assange under the Espionage Act seems to be pretty cut and dried. The only question is whether the courts – SCOTUS in particular – will rule that prosecution under the Espionage Act violates Assange’s rights under the First Amendment.

      1. I was not aware that the repetition of mere words could cause injury to the united states of America!

        What magic words of danger and menace and injury are these, how are they found, how discovered, how made?

        Why, a pass of a anonymous bureaucrat’s pen will suffice….and off with his head!

        That’s a pretty wide definition of “injury” you’re swinging about there….with Mr. Assange hanging at the end of it? – oh, just an effigy….

  31. Intent or reason to believe that the information will be used for the benefit of the US?…A factual question I see arising, centering on Mr Assange’s intent…and not that of the US Government.

    1. How material, how substantial, must the injury or the benefit be to obtain a conviction?

      The Congress’s say so, as to how its heart laments this release of info, is that sufficient “injury” for conviction, for Mr Assange to be put to death?

      What material benefit has accrued to any other nation?

      1. You ask a number of interesting questions. The answers to some of them are already well established under the common law, or are defined by statute. Others will certainly be raised at trial (assuming this case goes to trial); and the job of the court is to answer those questions.

        I encourage you to read the entire Espionage Act (which I linked to above), since I only quoted the most relevant portions of it. Some of your questions are answered there.

        But, to answer a few of your questions: Yes, the repetition of mere words can, in certain situations, be held to cause injury. This is well established under the common law. (See, for example, laws concerning libel.) And, yes, as you suggest, the definition of “injury” under the common law is pretty broad.

        As for the whole “reason to believe that it is to be used for the injury of the United States”, that’s just a requirement that criminal intent (mens rea) be established, which is an essential component of the definition of any crime under the common law. The threshold for establishing criminal intent is usually set pretty low. As long as the prosecutors can show that Assange knew that the documents were classified when he acquired and released them, that would likely be sufficient to establish criminal intent.

        As for the question of whether the injury to the U.S., or the benefit of a foreign power, would be sufficient to merit a conviction, that’s actually irrelevant. In the criminal law the prosecution doesn’t have to prove that any real harm was done in order to get a conviction. A crime consists of two elements: a “bad act” (actus reus) and a “guilty mind” (mens rea) – i.e. a violation of a statute (actus reus) with criminal intent (mens rea). If the court decides that Assange did anything prohibited by the statute (e.g. receiving, retaining, communicating, and/or transmitting classified information) and did so with criminal intent (i.e. knowing that the information was classified) then the court will have to find him guilty.

        The actual injury that Assange’s actions have caused the United States is irrelevant when determining his guilt or innocence. Instead, the injury caused by his actions would be relevant only in determining the appropriate penalty for his crime – i.e. when deciding whether he merits a fine, imprisonment, or death. I seriously doubt he’ll get the death penalty. According to the statute (18 U.S.C. § 794), the death penalty is reserved for cases in which the information leaked is especially damaging, such as when people get killed because of the leaked information, or when the leak reveals extremely sensitive information like instructions on how to build a nuclear bomb. I don’t think that any of the information leaked by Assange thus far would qualify. (However, who knows what sort of information he’ll leak before all is said and done? So, I guess we’ll just have to wait and see.)

        It is highly unlikely that the Department of Justice will bring charges against Assange unless they think they’ve got a good case against him under the Espionage Act. The only real legal question is whether a conviction would hold up on appeal if challenged on First Amendment grounds. And that could go either way.

  32. So Assange can be put to death in your view even though his actions have caused no actual substantial harm to the USA?

    Some justice!

    1. Reread what I wrote.

      First of all, I’m not talking about MY view. I’m talking about what the law says.

      Second, the law doesn’t say that he can be put to death even though his actions’ don’t cause actual substantial harm; nor did I ever say that.

      1. You necessarily imply that a very loose definition of harm as used in the statute for your argument that the Espionage Act is “clearly applicable”.

        I’m arguing that on the contrary, that Act is clearly NOT applicable – without necessarily using an elastic, and unfavorable to the accused,
        definition of “harm”.

        But in a death penalty case in a just system of laws, in a death penalty case the accused gets all the breaks: and that means that the prosecution cannot stretch the plain menings of the word used in the Statute.

        “Harm” as used in the espionage Act thus MUST mean physical harm , or the possibilty of such. No other.

        They don’t have a case, contrary to your bald assertions.

        1. While the Supreme Court has not ruled on this matter, the U.S. District Court in Maryland has already rejected your line of reasoning in United States v. Morison (1985). In a case in which someone provided classified information to a magazine, and was prosecuted under the Espionage Act, the court rejected every argument that the defense made – essentially the same arguments that you have made – and refused to dismiss the indictment. Specifically, the court ruled that the provisions of the Espionage Act were not overly broad or vague; that they didn’t violate the First Amendment; that they applied to releases of classified information to the press, not just to foreign agents; that the government did not have to prove that the release of information was actually injurious to the United States (the mere fact that the information was classified was seen as sufficient evidence that it was potentially injurious); and that the government did not have to prove that the defendant was attempting to harm the United States (the fact that he knew that the information he released was classified was seen as sufficient to prove criminal intent). So, I stand by my interpretation of the law.

          I make no comment about the justice of that law in general, or its application to this case in particular. I simply present the law as I understand it. Not my opinion of the issues. Not my preference about what should happen. Merely my understanding of what the law actually says.

          I understand that you find the case against Assange unjust, and you want to rant against it. That’s fine. If it makes you feel better, then rant away! But don’t be surprised if the law pays no heed to your ranting. The law operates according to its own logic, using its own language. You can quibble as much as you like over the meaning of words like “injury”, and can protest until you’re blue in the face that Assange’s actions have not actually “harmed” the United States in any material way; but the law simply doesn’t care. The law will do what the law will do; and the law doesn’t much care whether we like it, or whether we even understand it.

          And I’ll remind you once again – since you seemed to either ignore or misread my earlier comments – that the death penalty would almost certainly NOT apply in this case. Espionage is not a capital offense except in certain very special circumstances; and those special circumstances do not appear to be present in the Assange case. In all likelihood, the harshest penalty Assange could receive if convicted is 10 years in prison and a fine. That’s pretty bad; but it’s not the death penalty.

          1. Though, you know as well as I do that district courts rule in all sorts of crazy ways and that their decisions aren’t binding except on themselves. No one knows how SCOTUS will rule.

          2. Yes, indeed. There’s no predicting how SCOTUS will rule.

            Oh, and a troubling thought occurred to me after my previous post. I said that the maximum prison sentance Assange is likely to get is 10 years; but that was assuming that he gets charged with only one count of espionage. I suppose it’s possible that the prosecutors could try to treat each classified document released by Wikileaks as a separate count of espionage. So, in theory, perhaps, Assange could be charged with 251,287 counts of espionage, each carrying up to a 10 year sentence, for a total sentence of up to 2,512,870 years. But that would just be cruel.

          3. Sapere:

            Isn’t the real question how the British Law Lords will treat any extradidition request brought or submitted by the US Government?

            Is the US Government going to argue an that the Lords ought to apply an unprecedented interpretation of the US Espionage Act to determine their request for Britain to extradite Mr Assange to face trial ?

            To face trial in the Courts of a country whose politicians have publicly and repeatedly called for Mr Assange’s assassination?

            The question is not one at present for the American Courts, but for the British Courts.

            Perhaps instead of reviewing the American precedents under the Espionage Act, you ought to first examine the British precedents relating to extradition.

          4. That case dealt with the leaker himself: not the publisher of the leaked info.

            Assange is NOT the leaker here.

          5. But the law does care about justice, although you feel that it is not legal for it to do so; and it does care about logical consistency: but for you its service to the powerful who wrote the laws is paramount above all, eh?

            And what of the first Amendment? No effect here at all, eh?

            Is that your reading of “what the law is”?

  33. If you are to use the common law definitions, since it is a capital case, the prosecution must content itself with the most restricted and limited such definition – the definition in fact most beneficial to the accused.

    If, that is, the elements of a capital crime in a modern American Court may be found in the some particular State’s common law, rather than specified by Federal Statute.

    Or is “harm” whatever you say it is?

  34. If the law finds that these mere words may or have caused “harm” , does it matter that these are not Mr Assange’s own words? And has the truth of any “harmful words” ever been held to be a defense against any liability therefor?

    American diplomats have caused harm by their slanders of foreign leaders and publics as evinced by these cables: so Assange must hang therefore?

    Enough: Assange simply has not harmed the USA in any substantial or material way by repeating the indiscreet and insulting words of American diplomats in public.

  35. The definition of “harm” required by the Espionage is physical harm, surely? Not spiritual or moral harm, right?
    Not mere “harm to reputation and standing”, such as would ground a personal action for slander or libel by an individual, remediable by payment of money damages…

    This is not a disguised case of punishment for “insulting the majesty of the Sovereign”, is it? With mere words considered sufficiently “harmful to the king’s dignity”, so as to have a person put to death by the State for their utterance?

    And what if the villain is merely telling the other peasants what the king’s courtiers were saying about rival courts and kings?
    Still punishable by death for harming the State?

    Is not that precisely what Assange & Company has been up to here? Merely repeating the tales of the courtiers to the peasants.

    1. What do these actions have in common?

      Attempted murder
      Attempted robbery
      Parole violation
      Violation of restraining order
      Call a judge names in his court
      Threatening the president

      All can result in jail time without any harm. The last three (maybe 5) are only words.

      1. Anon #67: Several of the offenses listed are simply the timely prevention of planned or attempted injury or harm: one is a response to the injury to property rights: yet another punishes conduct which harms or injures the integrity of the judicial system; two deal with the exceptional cases of violating prior judicial orders, as it were laws specific to that individual, and determined after legal process; one is to preserve the dignity of the courts fro injury; and the last seeks to prevent the very threat of injury or harm to the President.

        None serve to show that SOME harm or injury or possibility of such to some person or right is NOT required to ground a penal statute.

        Several of the examples are aimed at preventing such injury or harm before it may be caused by the one seeking to cause injury or harm -and if they weren’t seeking to cause injury or harm, there would be no crime at all.

        The intent to cause injury is required as an element of the offense by the Espionage Statute itself. Not to actually cause such.

        IIRC actual harm or injury was required to be proved as an element in order to successfully prove a crime at common law in merry old England: such is not a requirement in statue based criminal systems…but here it is clearly set forth: the accused must be proved beyond a reasonable doubt to have intended to injure the US.

        And as everybody knows, in any criminal case, if there is any ambiguity in the language of the statute which sets out the offense, the definition most beneficial to the accused must be used.

  36. The US should just go for trafficking in stolen property. Cheney can still shoot him in the face. Bam! Next case.

  37. For the espionage act to apply, you must change or expand the plain meaning of the word “harm”: and you might be able to do so, were this not a captitol crime punishable by death.

  38. And of course, in all the forgoing, the words “harm” and “injury” are interchangeable. In my usage and understanding the words “harm” and “injury” are synonyms: but if you wish, read ‘injury” for ‘harm’ in my forgoing comments.

    The question remains: What actual physical injury has Assange caused that great, powerful, free and wealthy nation, the United States of America, which is sufficient – indeed which demands – that he be justly put to death, or even simply imprisoned, for espionage?

    Shake it off, America. Don’t get suckered into charging this Mr Assange with anything!

  39. It’s probably better for Assange if he is extradited now rather than in a few years’ time, when there may be a Republican administration in power. At least now, he is likely to be tried by a civilian court, and have his choice of legal representation, and also, extradition agreements to put the death penalty off the menu are more likely to be honoured than if Cheney/Palin/Lieberman was (I can imagine them rationalising that America doesn’t need to honour agreements with lesser nations that prevent it from doing what’s morally right or something).

  40. History teaches that in despotic regimes the Courts are ever at the beck and call of their master: and that often no command need be given as to the master’s desires, for a raised eyebrow from him while looking at his Magistrate is often enough.

    Although I can get legalistic in the way I look at things, I well know from history that one ought not place too much faith in codes and charters to preserve one’s liberty.

    1. Indeed. If we look at the history of the Espionage Act and the Sedition Act which followed, they were primarily used to suppress dissent during the First Red Scare. As were extralegal imprisonment, torture, and assassination.

  41. Here’s the central issue: Who controls the narrative?

    “If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”

    This was written by a man who knew of what he spoke,
    – Joseph Goebbels

    Assange is perceived as being a threat to that control. The corporate media whores, so long central to the promulgation of the propaganda are panicked too.

  42. Well maybe my rant will have no effect as you cooly and logically execute Assange according to your laws, which don’t need any consideration at all as to their “justice” – indeed such consideration is has been made illegal by your judges – but merely needs mechanical application to the “facts”, after the laws have been passed by Congress and signed by the President.

    What precisely is the job of your Judges? To twist the Law so that your rulers get precisely what they want from the use of it?

  43. Oh OK you’er right – the Espionage Law is clearly applicable: and anyone anywhere who ever publishes any classified documents of any kind, leaked from the US Government, faces a death sentence.

    After all, the Law is clearly applicable. You may not like it, but if not you may call your Congressman.

    Feel better about your Court system and your government now?
    Or about their ability to “protect you”?

    You are not stating what the law says: you are giving your interpretation of it.

    Its attempted use will btring great disrespect and opprobrium to your Government…and such deserved bad publicity is also a part of justice: and the court of world public opinion has less patience for purely nationalistic legal quibbles.

    The existence or not of the first amendment and of the espionage laws have NOTHING to do with the justice of this case: the USA simply has no jusrisdiction over Assange: why ought he be subject to your laws?

    And NOBODY, even Governments can “own” information, except by pure legal fiction.
    Though they would dearly and clearly love to, and are trying to create the illusion that such is possible in reality.
    And they’d like to kill anybody who gets ‘forbidden information” without their permission….even their own citizenry.

    How “free” is that?
    Freely hypocritical…

  44. perhaps the nature and type of information being passed by Morison had something to do with the finding that his actions “injured” the US, eh?

    Did the publisher Morison gave his materials to face charges too?

    Here’s some analysis which was taking place prior to cablegate….now things have somehow changed?

    Nice to see your arguing the CIA side of this…anyway, Assange is trying to benefit, not to injure, the USA.

  45. Will Assange be tortured and executed in the public square, to show the justice of the USA in action?
    That’s the way these things used to be done, when absolute rulers and despots sought justice.

  46. No prosecution ever against Americans for torturing people?

    But a vigorous prosecution of Assange?

    We see.

  47. Where there is no injury there can be no crime: and the scope of the word “injury” has been expanded mightily of late, eh?

    Now it also means “conceivably possible injury”, as well as actual injury.

    How sensitive American Government has become! They start wailing if they catch a glimpse of a needle, and no longer need the jab to feel the needle’s pain – the law may apparently anticipate and assume a possible hypothetical injury, and then sentence a person to prison or death for “causing” it – not punished for causing an injury, but for ANY conceivably possible injury, which MAY (but need not) arise from their actions in repeating the words of the government’s servants to the public at large concerning matters beyond America’s borders.

    How just! How admirable! A model of freedom and liberty!

  48. things only really started to get serious when wikileaks mentioned that their next set of leaks was about a major US financial house’s dealings… he’s threatened the real power wielders and now things are getting serious… The Banks are the real string pullers in America… and supposedly, what was about to be revealed was that the crash was planned and certain financial houses were already in position to reap the benefits.

    1. Oh that theory is a possibility all right.
      But I note that now Cryptome is speculating that the real legal troubles facing Assange may center more upon financial irregularities in the way Wikileaks-the-organization was run, rather than espionage per se:

      So it appears that this drama has some ways to run yet before the fat lady sings.

  49. I hate to say it, Canuck, because most of your posts in other threads have been quite reasonable, and I’ve enjoyed reading them; but, in this thread, you’re turning into a troll. And, as long as you insist on trolling, I’m not going to treat your comments as serious or worthy of a serious response.

    Tone down the hyperbolic rhetoric about Assange being “tortured and executed in the public square”, and stop trying to use me as a proxy for your ire against the U.S. government, and then, maybe, we can have a serious conversation about the legal issues involved in this case.

    I am not here to defend the case against Assange, to defend the Espionage Act, to defend the Department of Justice, to defend the federal court system, or even to defend the thousand-year tradition of Anglo-American common law that determines how statutes are interpreted and how cases are adjudicated (and what words like “injury” are understood to mean in a case like this). I’m merely trying to predict what federal prosecutors are likely to do, and how federal judges are likely to rule, based on my understanding of the law. Arguing with me about my interpretation of the law is not going to help Mr. Assange’s case one bit, since I am neither a federal prosecutor nor a federal judge, and have no say whatsoever in whether or not he will be prosecuted or convicted. I’m simply giving you my best take on what the law says, and how it is likely to be interpreted by the federal courts. If you don’t like the law, take it up with the Supreme Court, not with me.

    Don’t get mad at the weatherman just because he predicts that it’s gonna rain on your parade. The forecast may be right or it may be wrong; but arguing about it isn’t going to change the weather.

    1. True enough: but I know as a fact that there do exist people far more competent with American Law than I who could tear the legal “reasoning” you’ve set out into the tiny ribbons of illogic from which I believe it’s been fashioned.

      I got hot about because Assnage faces death as a possible penalty.

      But really. Bring espionage charges? Then at one level it’s a battle with ALL media, all reporters, all press.

      Charges based on financial chicanery?
      A rather smaller set of antagonists are then involved.

      Nevertheless, the leaked materials still read the same as they did before any of the legal manoevering started.

      I still don’t see how their publication has materially injured the US, or materially benefited any other nation, as those words are used in the Espionage Act, though.

      1. I got hot about because Assnage faces death as a possible penalty.

        As I have said a gazillion times already, Assange will almost certainly NOT face the death penalty.

        Assange will most likely be charged under 18 U.S.C. § 793, which does not even carry the death penalty. It carries a maximum penalty of 10 years imprisonment, plus a fine.

        The death penalty is a possibility only if he is charged under 18 U.S.C. § 794, and only then under a very limited set of circumstances. Specifically …

        the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power … of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

        None of the information released thus far by Wikileaks would appear to meet this criteria. Besides that, it is highly unlikely that Assange would even be charged under § 794, since this section is usually reserved specifically for actual cases of spying by a foreign power rather than for leaks of classified information to the public or the press (which are handled by § 793).

        So, your death penalty red herring is a red herring.

        1. But

          publication (note: NOT leaking) = no injury to USA
          = no benefit to foreign power

          Therefore by necessity
          publication does not equal espionage.

          The publishers of the Guardian are not liable to a charge of “espionage” in American Courts.
          Nor is Mr Assange.

          1. As I have said before, Assange might be able to mount a successful First Amendment defense. But that is a matter for the courts – and, in particular, the Supreme Court – to decide. The statute itself provides no explicit exception for the press; so your argument is unlikely to persuade federal prosecutors not to press forward with the case. Besides, it isn’t even clear that Assange would qualify as a legitimate member of “the press” for First Amendment purposes (the amendment doesn’t define what is meant by “the press”; so that’s left up to the interpretation of the courts). This could prove to be a very interesting case if Assange challenges the Espionage Act on First Amendment grounds. I have no idea how SCOTUS would rule – it could go either way.

            But your continued insistence that federal prosecutors don’t have a legitimate case against Assange because his actions have not actually “injured” the United States is off base. The statute does not say that the United States has to have been “injured” in any way in order for someone to be prosecuted for espionage. All it says is that the accused must have had “intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation….” All prosecutors have to show is that Assange either (a) intended that the information be used to the injury of the United States, or (b) that he had reason to believe that the information would be used to the injury of the United States, or (c) that he intended that the information be used to the advantage of any foreign nation, or (d) that he had reason to believe that the information would be used to the advantage of any foreign nation. They don’t have to show actual harm to the United States. And the courts have held that the mere fact that information is classified is sufficient to indicate that it can be used to the injury of the United States or to the advantage of a foreign nation. So, your “no actual injury” defense wouldn’t hold up in court.

          2. “The courts have held that the mere fact that information is classified is sufficient to indicate that it can be used to the injury of the United States or to the advantage of a foreign nation.”

            Is that supposed to be sufficient to remove any d need to determine the subjective element from the crime?

            Well, it’s the British Law Lords who’ll have the final decision as to whether your government has a case sufficiently strong to merit extradition from their ancient bastion of freedom and liberty under Law.

          3. Bah. too many typos in the above!

            Does the mere fact that the information is “classified” remove any need for the Court to consider the accused’s actual intent in publishing that information?

            From what I see, it is a question of what Mr Assange intended, not what the court deems.

            Or is it legally impossible to publish classified information received from another without therefore necessarily intending to injure the USA?

            Why then does the law bother to specify the need for such an intent?

          4. Well, it’s the British Law Lords who’ll have the final decision

            There are no British Law Lords anymore. The House of Lords no longer serves as Britain’s highest court of appeal. That function has been taken over by the newly-formed Supreme Court of the United Kingdom, whose Justices now perform the same functions that the Law Lords used to perform (though the Justices of the Supreme Court of the United Kingdom do not sit in the House of Lords).

            Besides, if Britain extradites Assange to Sweden, it will be the Swedish authorities who must decide whether to extradite him to the United States. I have no clue about how Swedish extradition law works; though I would assume that, like Britain, Sweden has an extradition treaty with the United States.

  50. Assanage should come to Finland when he is done answering those sort-of-rape changes in Sweden. We couldn’t legally export him to any country where he could be executed or tortured, and I would really like to see if our leaders had balls to uphold that law.

    – US thinks a mine in Norway and Insulin factory in Denmark are possible terrorist targets for being important for US national security?
    In WWII they could have been, but terrorism is about creating terror, not supply inconveniences resulting in loss of quarterly profits.

    1. Oh, the loss of quarterly profits would indeed terrify some people I know.

      Even the threat of such loss, actually…

  51. And of course :

    publication = press

    USA necessary corollary: Congress shall make no law abridging the freedom of
    the press

    NB No qualifications nor exceptions are set forth in the US Constitution

    Therefore as far as publication is concerned, Espionage Law does not apply: otherwise First Amendment violation by Congress.

  52. Granted that the press is only who the government says it is, and not just any publisher.

    But noew it seems that Mr assange must needs have a specific intent to injure, or reasonably foresee such injury: physical injury?
    or injury to the dignity of the State?
    Be that as it may, his intent is a now a live issue – and as he has said that he has intended from the outset that the publication be for the benefit of the USA.

    What evidence do you see of Assange’s intent to injure the USA?

    1. Morison made the same argument – namely that his intent was not to harm the United States. The court rejected this defense, ruling that …

      The statute does not require any intent to injure the United States or any “guilty knowledge” that the document or writing was removed or abstracted by an enemy of the United States.

      The court goes on to argue that …

      As the District Court noted in Dedeyan [another espionage case], “certainly injury to the United States could be inferred from conduct of the sort charged,” whether that conduct involves photographing documents by one foreign agent or release of national defense information to the press and public, where many foreign agents and governments can have access to the information. … In Dedeyan, the defendant was accused of knowing that the document had been abstracted by his cousin, a Russian spy, and failed to report it. Here, the situation is slightly different because it does not involve a foreign agent or the classic spy scenario. Rather, the defendant is accused of releasing classified information to the press, thus exposing that classified information to every foreign agent and government, hostile or not, in the world. … Finally, the danger to the United States is just as great when this information is released to the press as when it is released to an agent of a foreign government. The fear in releasing this type of information is that it gives other nations information concerning the intelligence gathering capabilities of the United States. That fear is realized whether the information is released to the world at large or whether it is released only to specific spies.

      The mere fact that he released information that he knew to be classified was sufficient to prove the requisite criminal intent under 18 U.S.C. § 793. The prosecution didn’t have to prove that Morison was deliberately trying to harm the U.S. or to benefit any foreign power. All they had to prove was that he knew that he was releasing information that the U.S. government had seen fit to classify for security reasons. In the court’s view, the fact that the information was classified should have been sufficient to indicate to Morison that the U.S. government regarded the release of this information as injurious to the United States or advantageous to foreign nations.

      I seriously doubt that the court is going to look favorably on Assange’s claim that he was trying to benefit rather than to injure the United States. That’s because Assange doesn’t have the legal authority to decide whether the release of this information is beneficial or injurious to the United States. The U.S. government, on the other hand, does have that legal authority; and they exercised that legal authority when they classified those documents. Perhaps Assange was right and the U.S. government was wrong; but that doesn’t matter in the eyes of the law. All that matters is that the U.S. government had the legal authority to classify that information, and they chose to do so, and that Assange knowingly released this information to people who were not authorized to receive it. That’s all the intent that prosecutors have to prove.

      1. So no freedom of the press when it comes to things deemed secret by the US Government eh?

        Worldwide too?

        Hypocrisy exposed!
        Hey wikileaks: mission accomplished, in spades.

        So life in prison for julian Assange, eh? If the USA gets their hands on him, that is.

        And you’ll be cheering…unless his sentence itself is classified secret right?

  53. Are you suggesting that all leaked documents from the US Government must necessarily be subjected to Court’s review prior to publication in order for the publisher to be sure she won’t be charged with espionage under that act?

  54. Truly, sapere, if the Law can be applied as you contend it may, then why doesn’t the Law simply state: “Any publication of any information or documents which the US Government has classified as being secret is and act of Espionage, and is punishable by the sentence of etc etc etc…”?

    1. … if the Law can be applied as you contend it may, then why doesn’t the Law simply state…

      Because Congress writes the statutes and the courts interpret their meaning and proper application.

      Besides, contrary to popular belief, in the United States, Law ≠ the text of a statute as it was written by Congress decades ago. Rather, Law = the text of a statute as it is interpreted by the courts today, guided by case law precedents and common law principles. Just because X is not written in the plain language text of a statute doesn’t mean that X is not part of the Law. As many conservatives are so fond of pointing out, the words “separation of church and state” and “right to privacy” don’t appear in the text of the U.S. Constitution. But that doesn’t negate the fact that they are fundamental principles of constitutional law, as the Constitution has been interpreted by the courts. That’s how our legal system works. The Law is, in essence, what the courts say it is, not what Congress actually wrote down.

      1. I should also point out that if Congress doesn’t like how the courts have interpreted the Law, they are free to rewrite it in such a way as to force the courts to reinterpret it. If they don’t, that’s a pretty good indication that they’re okay with how the courts are interpreting the law.

        1. Please, show me an example where the US Courts have held that this law extends to the publishers of the information received from the leaker, and further, in which that publisher is located in a foreign country, and is in fact a foreign national.

          I do not know when the last time Julian Assange stepped foot in the USA was. But he ain’t there now. Nor was he when this stuff was published by his organization.

          By what right do you claim the right to judge him, as he is not in your domain, and did he carry out his alleged mis-deeds against you therein?

        2. The 24-page report… examines the criminal statutes involved in the WL case and how they might apply outside the U.S. The report concludes that at least some of the information released by WL has national security implications and may indeed by covered under the Espionage Act and other criminal laws on the books… prosecuting Assange for the disclosures would be unprecedented — and challenging … We are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. Such an action would have First Amendment implications, and political ramifications “based on concerns about government censorship… prosecuting a foreign national whose actions were conducted entirely overseas carries with it certain foreign policy implications and would raise questions related to extraterritorial jurisdiction

          Sorry, to block quote so much, but this is from linking to their PDF.

          Have you read it sapere_aude? If so, what is your take on it?

          Sounds like they are in agreeance with you on applying the Espionage Act to WL. They seem to stating the problem is with prosecution, and the other factors that come into play when doing that.

          btw Geoffrey Robertson QC has agreed (probono I believe) to come on board and help with the extradition case to SE, due to his firm being one of the few who are knowledgable in extradition cases to Scandanavian countries (who would’ve thought…). This would cover to the US.

          From what it seems, there are two cases for JA. One to SE, for these charges, then separate ones to the USA, if/when they come. That won’t happen overnight.

          I think possibly, and this would be hard for anyone, that sapere aude is looking at the EA as it stands in isolation. Given WLs long history, activities and support (massive legal support), that this is not a linear cause/effect based around one Act.

          What do you think, sapere?

          1. Sorry to block quote so much

            Your blockquotes would be more readable if you use the blockquote tag.

          2. Yep, shall do

            The 24-page report… examines the criminal statutes involved in the WL case and how they might apply outside the U.S. The report concludes that at least some of the information released by WL has national security implications and may indeed by covered under the Espionage Act and other criminal laws on the books… prosecuting Assange for the disclosures would be unprecedented — and challenging … We are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. Such an action would have First Amendment implications, and political ramifications “based on concerns about government censorship… prosecuting a foreign national whose actions were conducted entirely overseas carries with it certain foreign policy implications and would raise questions related to extraterritorial jurisdiction

          3. Thanks for the link to the CRS report (here’s a direct link to the .pdf). It makes fascinating reading. I had not read it before; so thanks for bringing it to my attention. I recommend that everyone take the time to read it. It’s a great summery of the legal issues. Based on that report, it looks as if extradition might be the trickiest part of the whole thing.

          4. or, what is the basis of the US Government’s just claim to have jurisdiction over the body of Julian Assange?

            I don’t see one.

          5. I found this interesting; and I think it addresses your question:

            [A] federal court must have personal jurisdiction over a non-resident defendant in a criminal case…. Service of a warrant or summons on the individual in the United States is all that is needed to establish personal jurisdiction. … There is no requirement that the individual have minimum contacts with the United States, as is the case with a corporate criminal defendant or a civil defendant. … Extradition, ruse or even abduction can be used to obtain the presence of the individual defendant in this country and thereby establish personal jurisdiction. … Thus, for example, former Panamanian dictator Manuel Noriega could be abducted from Panama, brought to this country, and tried in a federal court.


          6. Well that is not claiming jurisdiction: that is simply taking it.

            And that is in keeping with the long-standing style of the US, I’ll give you that.

            Are you going to claim that he UK is harboring terrorists, if they should refuse to extradite?
            Run a raid into Wandsworth and just seize the man, like Panama?

  55. Issues of the formal name given to the supreme judicial body of Great Britain aside, what if the Brits get an extradition request from the USA while he is in their custody?

    Who would get Mr Assange first?
    Sweden or Britain?

    PS I read somewhere that there is zero chance the Swedes would extradite him if they received such….IIRC some Cryptome post from a correspondent had that info…or possibly a knowledgeable-in-these-things Swede posting onto some other Boing Boing Assange thread.

    PPS I really have no clue whatsoever as to what the supreme judicial body of Sweden may be formally named!

    PPPS No more Law Lords? Damn! That sounded so cool: Law Lords!

  56. Thanks for replying to Canuck’s posts. I’m learning quite a bit from what you have to say.

    btw have you read any of the articles by others in intelligence and law who have said they don’t see much of a chance for the US Govt to prosecute Assange? If so, what do you see as their points they have overlooked, ignored etc…

  57. Who would get Mr Assange first?

    Good question. Given the fact that Sweden has already requested his extradition, while the U.S. has not, my guess would be Sweden. And I have no clue what Sweden would do if the U.S. requested Assange’s extradition.

    That sounded so cool: Law Lords!

    I agree. “Law Lord” is a cool title – much cooler than “Justice”. (Perhaps not quite as cool as “Time Lord”; but close.)

    Morison himself has been pardoned, has he not?

    Yes, I believe that Morison was pardoned by Pres. Clinton. However, a pardon doesn’t affect the legal precedent in the case.

    So life in prison for julian Assange, eh?

    18 U.S.C. § 793 carries a maximum sentence of 10 years. However, that’s assuming that they charge Assange with only one count of espionage. I guess they could, in principle, charge him with 251,287 counts – one for each classified cable. (That would really be a dick move on the part of federal prosecutors; but federal prosecutors are not above dick moves; so, who knows?) Keep in mind that Morison only got two years; and he was later pardoned. Also keep in mind that the jury may sympathize with Assange and find him not guilty.

    In regard to your other questions, I’ll stick to what I said earlier: If you want to have a conversation about the relevant legal issues, that’s fine. But I’m going to ignore any questions or comments you make that sound trollish. I’m not the spokesperson for the U.S. government. I’m merely telling you what I believe the courts will do based on existing precedent. If you want to have a debate about the propriety of prosecuting Assange, you’ll have to debate someone else.

      1. Nothing wrong with a healthy disrespect for any government, foreign or domestic.

        Just keep in mind that I am not here to defend the U.S. government. I’m just here to explore the fascinating legal issues involved in this case. I’m not going to be bated into a debate over whether or not Assange should be prosecuted and/or convicted. My concern is with trying to figure out what sort of legal reasoning the court is likely to use in deciding the case, and how they are likely to rule.

        1. How they are likely to rule?
          They’d be shocked that the government has brough the case, I think.

          There’s a very good reason no case has been previously brought against the publishers, rather than the leakers, of things the Government has classified as secret: because the Law as written could not withstand a direct First Amendment challenge.

          Hence, the ongoing legal gymnastics taking place now in various fora involving just when a “publisher” is a website is the “press” or not…an attempt to define or otherwise get Assange out of the legal “press” category, by hook or crook.

          1. …and that’s why he should not be prosecuted: I do not think that that action would serve the interests of the USA.
            For either the prosecution must fail: or the Courts must twist the plain reading of either this Statute, or the Constitution, or both.

            None of that would be good for the US, IMHO.

            Nor would the internatinal legal wrangling, which would seem to be a pre-requisite for getting Mr Assange before the US courts, be particularly helpful to what the US is trying to do in the world.

            As an international matter, the question of whether or no to prosecute Mr Assange is as much a political as a legal decision for the US Government.

  58. “Unprecedented” + “outside US” = no chance for success ( but much chance of embarrassment of US Gov) in prosecuting this case

    That is all

  59. Also, I am not above stating that SCOTUS, much less any lower US Court, has decided things unjustly or wrongly.
    I’m not within their jurisdiction, and need not respect their decisions or reasoning in my judging of their judgments.

  60. OTOH, the US Constitution does not forbid the Congress from passing any law abridging the freedom of the foreign press, now does it?

  61. This is not a direct response to any specific question; but is vaguely directed towards the questions raised by happyez:

    There are several issues involved in the Assange case. First, can federal prosecutors bring charges against Assange? That’s simple: Of course they can. They can bring charges against just about anyone for just about anything. Will they? That depends on whether or not they think they’ve got a chance of winning the case in court.

    Second, can they get an indictment under the Espionage Act? Probably. It’s pretty easy to get a criminal indictment. The Grand Jury is unlikely to quibble over legal issues that are best decided on appeal.

    Third, assuming they get an indictment, can they extradite Assange to the U.S.? That’s trickier. It depends on where they’re trying to extradite him from, and for what. Since I’m not an expert on European extradition law, this is the biggest unknown for me. However, I suspect that they will be able to extradite him as long as the death penalty is off the table (which I’m almost certain it will be). I seriously doubt that popular opinion will have much influence on an extradition decision.

    Fourth, assuming they get an indictment and extradite Assange to the U.S., can they get a conviction in court? This is tricky, because there are two key variables to consider: the judge and the jury. The judge rules on matters of law; the jury on matters of fact. The judge could dismiss the case if he or she decides that the prosecutors’ case is legally flawed. And, even if the judge allows the trial to proceed, the jury could always acquit. So, this is also very iffy.

    However, federal prosecutors rarely take a case to trial unless they are confident that the law is on their side and they can convince a jury to bring a conviction. And trial court judges are usually not legal innovators. If the law isn’t clear on some matter, they usually allow the prosecutors a great deal of latitude, and then leave the thornier matters of legal interpretation to be settled on appeal. So, given the wording of the statute and the most relevant precedents, I suspect that the trial judge will let the jury reach a verdict. (Of course, there’s no predicting what the jury will do.)

    Fifth, assuming that the trial court convicts Assange, will the case hold up on appeal? This is where it really gets interesting. This is where the issues of legal interpretation I’ve been discussing come into play. From my reading of the statute and the relevant case law, I believe that the appellate courts will reject every argument made by the defense that the law is too broad or too vague, that it doesn’t apply to private citizens or foreigners, that the information released wasn’t really injurious to the United States, that Assange never intended to cause injury, etc. I believe that the ONLY argument that Assange’s lawyers can make that will have any chance of persuading the appellate court judges and Supreme Court justices is that Assange has a First Amendment right to publish this material. I don’t know if this argument will be persuasive; but I think it’s the only defense argument that really has a chance.

  62. After all, Mr Assange is still innocent until proven guilty, right?

    So, I repeat the question in my previous post.

    1. After all, Mr Assange is still innocent until proven guilty, right?

      Not quite. He is legally presumed innocent until proven guilty; which simply means that he may not be punished for his alleged crime until after he’s had a fair trial. But the presumption of innocence does not protect a suspect from arrest; otherwise, no one would ever be arrested and put on trial. The presumption of innocence gives you the right to have your day in court, not the right to avoid your day in court.

      Okay, that’s it for me tonight. It’s past my bedtime.

      1. “But the presumption of innocence does not protect a suspect from arrest…”

        Nor their kidnapping from the territory of another Sovereign country, right?
        At least under US Law.

        Going to tell the Justices in Britain that that’s what you’ll do if they don’t co-operate?

      2. I’ve really appreciated your contribution to this thread. Thanks very much for taking the time.

        I’d like to see you and Thalia drafted as the official BoingBoing legal commentators from here forward. ;-)

        1. Thanks; but “official BoingBoing legal commentator” sounds an awful lot like actual work. I spend time on BoingBoing to avoid doing actual work. ;-)

    1. No no: i am certain that your Government will try the legal rout of extradition first.

      Wonder if the Brits or Swedes will give him up.

      Or whether the US’ll need to send in the CIA or Marines to seize him, if the extradition request is declined.

      I have now been convinced that the US Courts feel that there is nothing legally hold the US Government back from doing so.

      The day of the US global “snatch” squad, blessed by US Court system, dawns!

      The First Amendment be damned!

  63. My bottom line: Mr Assange has neither caused nor intended any injury to the USA.

    He’s not guilty of a thing under US law, and ought not to be punished.

    If OTOH he is found guilty under US law and punished for publishing the cables, then US legal system is unjust.

    I don’t see a third option.

  64. About Sweden extraditing Assange to USA. They will if they are ordered by EU to do so. USA would first have to put a request directly to Sweden. Unless Assange have actually done some real crime in USA and USA can prove that (e.g. have he, according to US laws, raped girls in USA, or robbed a bank, or murdered someone), Sweden will deny the request. Even if USA get Assange extradited directly from Sweden, Sweden will demand that he is not put to trial about most of the Wikileaks “crimes” (because they aren’t crimes according to Swedish law, on the contrary, Swedish law is designed to protect what wikileaks is doing). But USA have broken promises given when people have been extradited from Sweden in the past.

    Sweden have harboured more refugees since the 1960’s then any other country in the world, the reason many seek refugee status in Sweden is that, if they haven’t actually committed a real crime, they get the best (or the least worst) protection there from extradition that is possible to get in the world.

    But… there are a few buts. Since 2000, EU can order Sweden to extradite Assange. Sweden will put up a fight over this as long as possible, but the only way they could blank refuse is by leaving EU. Another but is that someone that have committed a serious crime (like Assange did) and is not a citizen of Sweden, can not receive refugee status nor citizenship in Sweden, it is even possible that Assange won’t be allowed to visit Sweden for a long time period after he has served his time in prison, if he is found guilty of rape. Even an already granted Swedish citizenship can be revoked if the citizen neglected to tell about criminal acts of his past (but this has only happened to war criminals responsible for the death of hundreds).

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