Friends,
A group of us did a protest at the Alexandria, VA detention center where
Chelsea Manning first was held in contempt. And if Assange gets
extradited to the USA, we will gather to support him. However, now that
Manning has been held in contempt a second time, I think we should do a
protest outside the courthouse to challenge the judge who has imposed
draconian demands on Manning. If interested, let me know.
Kagiso, Max
Published on Portside (https://portside.org/)
The Feds May Come
to Regret Charging Assange with Espionage
JACK
SHAFER
May
24, 2019
Politico
The indictment of
WikiLeaks founder Julian Assange under the Espionage Act,
announced Thursday, has the potential to trigger a First Amendment brawl
the Department of Justice may soon come to regret starting.
The Espionage Act,
first passed in 1917, has proved essential in prosecuting spies and employees
with classified clearances who violated their oath by leaking to the press, but
federal prosecutors have long avoided using it to punish journalists for
possessing or publishing those same leaks. They weren’t being generous, nor was
their inaction a product of their love of the news media. Rather, legal
showdowns that tested the act under the light of the First Amendment—showdowns
that might weaken or gut the law—were considered imprudent and unnecessary.
No legal scholar
would argue that the government exceeded its constitutional powers by charging
and convicting Chelsea Manning, a former Army intelligence analyst,
for leaking hundreds of thousands of pages of classified documents to Assange’s
WikiLeaks, which posted them and shared them with newspapers like the New
York Times. But charging Assange for obtaining and disseminating the
documents marks a new legal frontier. As journalists and free speech advocates
are shouting at full throat, reporters ask sources for classified
documents and information all the time. If the government can successfully
prosecute Assange for doing something similar, their logic goes, then New
York Times, Washington Post, and Wall Street
Journal reporters will be next.
Trump’s DOJ has
not yet explained the logic of its novel prosecution, but it appears that it is
prepared to argue that Assange isn’t a journalist, which a spokesman already
said in a news briefing. WikiLeaks and Assange aren’t deserving of the usual
First Amendment deference, this argument goes, because they don’t quack and
walk like the conventional press. Most media organizations receive classified
information orally or in small batches of documents. WikiLeaks, as the
indictment points out, literally advertised for leaks by posting a wish list on
its site: “The Most Wanted Leaks of 2009,” “Bulk Databases,” classified
“Military and Intelligence” documents, etc. If I’m reading the indictment’s
intentions correctly, the Trump prosecutors think Assange made himself legally
vulnerable by going beyond what journalists ordinarily do. He fashioned himself
a broker of leaks, collecting them wholesale and distributing
them unlike the mainstream press, which obtains them retail.
But if soliciting
leakers and helping them submit information is the new standard for Espionage
Act prosecutions, then the Associated Press, Forbes, the Guardian,
the New York Times, POLITICO, the Washington Post, and
other publications that publicize their SecureDrop address to collect
whistleblower information must be in trouble, too.
As Charlie
Savage reports in the New York Times, the closest
prosecutors have come to charging a reporter under the Espionage Act came in
2005, when two lobbyists were charged with obtaining classified information
about America’s Iran policy and then passing it on. That case, he writes, “fell
apart after several skeptical pretrial rulings by a judge.”
Congress has the
power to authorize a classification system for information that needs to remain
secret, and it can punish those who violate the system. But Congress cannot
extend its powers of criminalized classification so far that it abuses the
First Amendment. As legal scholar Alan M. Katz wrote in 1976, “The
First Amendment limits Congress’ ability to punish the press criminally for
publication of leaked government information.” In other words, the government
could not lawfully classify all information under its purview, or even half, or
even a third. The First Amendment rejects the censorship state.
As part of the
Constitution, the First Amendment stands as the supreme law of the land. In any
tussle between it and the Espionage Act, it must win. Ruling the Espionage Act
as overbroad under the First Amendment would, of course, be up to the Supreme
Court. But legal consensus on where the Supremes would go on this one is hard
to come by. In April, law professor Steve Vladeck said he doubted
whether Assange—or the New York Times—could win a clear-cut First
Amendment victory if charged under the Espionage Act. But he also noted that
the act is legally rickety, and wasn’t “drafted with the kind of specificity
that usually characterizes speech-restricting statutes that survive
constitutional challenge.”
Could a smart
legal defense team punch a hole in the Espionage Act and spring Assange? First,
prosecutors would have to persuade a British court to extradite him from his
British jail cell, and that’s no cinch. Assange may not have to rely on a First
Amendment defense if former assistant U.S. Attorney Andrew C. McCarthy is
right. He argues in National Review that the Justice
Department extended the statute of limitations covering Assange’s alleged
crimes to eight years under Section 2332b of the penal code, which makes an
exception for “acts of terrorism transcending boundaries.” McCarthy, no friend
to Assange, says this could complicate his extradition if the British courts
think it unjust.
What emboldened
the Trump administration to charge Assange under the Espionage Act when the
Obama administration, which wasn’t shy about punishing leakers, wouldn’t? That
prosecutors have previously refrained from charging journalists under the
Espionage Act and have waited this late in the game with the statute of
limitations clock ticking to file their case may be the strongest predictor
that Trump’s DOJ will be sorry it ever brought this case. At least that’s my
hope.
Jack Shafer
is Politico’s
senior media writer.
Donations can be sent
to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD
21218. Ph: 410-323-1607; Email: mobuszewski2001 [at] comcast.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
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