21 Aug Can the U.S. Prosecute Wikileaks’ Founder? Sure, If They Can Catch Him
The WSJ has an article on the U.S. Defense Department’s push for a criminal prosecution of Wikileaks for releasing U.S. government documents on the Afghanistan war.
Several officials said the Defense and Justice departments were now exploring legal options for prosecuting Mr. Assange and others involved on grounds they encouraged the theft of government property.
Bringing a case against WikiLeaks would be controversial and complicated, and would expose the Obama administration to criticism for pursuing not just government leakers, but organizations that disseminate their information.
I agree it would be controversial, and probably counterproductive, to try to prosecute Wikileaks’ founder Julian Assuange. But as a legal matter, I don’t think there are many obstacles to his prosecution under U.S. law, as conservative Marc Theissen argues here.
The most relevant law, the Espionage Act, would seem to cover Assange’s alleged conduct.
(a) 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,…(b) receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, . . . 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;
Obviously, there is an intent issue here (Did Assange obtain the info for the purpose of or with reason to believe it would be used to injure the U.S.?), but I actually don’t think that would be a problem. Wikileaks’ lawyer seems to think that the real problem is Assange’s nationality and the fact that Wikileaks does not have a presence in the U.S. But this is not a problem at all.
The Espionage Act has long been held to apply to foreign nationals who commits acts while abroad (see U.S. v. Zehe, 601 F.Supp. 196 (D. Mass 1985).). The only problem seems to be actually capturing Assange. It is worth noting, of course, that abducting Assange, even in violation of the sovereignty of a country where the U.S. has an extradition treaty, would not prevent a U.S. court from trying him. (See U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)). And finally, Wikileaks may or may not have a First Amendment defense, and even if it does, the precedent of NY Times v. U.S., 403 U.S. 713 (1971), (the Pentagon Papers case) only seems to prevent prior restraint. Post-publication prosecution is probably OK under the First Amendment.
So Wikileaks really does have serious legal exposure, and pretty weak legal defenses. I hope they are getting better U.S. legal advice than the WSJ article describes. And if I were Assange’s lawyer, I would advise him to avoid the U.S., and international waters and airspace, for as long as possible.
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IF the Taliban kill anyone whose name is leaked, then there is a charge of depraved indifference homicide. That makes more sense than any seemingly political charge.
The Pentagon has refused to cooperate with WikiLeaks (and lied about it). See: http://www.salon.com/news/opinion/glenn_greenwald/2010/08/20/wikileaks/index.html
Note in particular the DoD release:
“Thus, the Department of Defense will not negotiate some “minimized” or “sanitized” version of a release by WikiLeaks of additional U.S. Government classified documents. The Department demands that nothing further be released by WikiLeaks, that all U.S. Government classified documents that WikiLeaks has obtained be returned immediately, and that WikiLeaks remove and destroy all of these records from its databases.”
The blood, if there is to be any, is on the Pentagon’s hands. It’s that simple.
Failing that, they can just try to smear and discredit him:
http://www.bbc.co.uk/news/world-europe-11049316
Am I the only one to find the sentence ‘abducting Assange, even in violation of the sovereignty of a country where the U.S. has an extradition treaty, would not prevent a U.S. court from trying him’ is incredible? In any decent country, whether you might try the abducted guy or not, you would also have to try the abductor…the US is really amazing…
Guy,
Prosecute the abductor? Are you crazy? That would be looking backward, not forward. We only look backward when it comes to prosecuting whistleblowers who embarrass the Pentagon.
Guy, The sentence you are concerned about is a (fair) restatement of U.S. v. Alvarez-Machain, 504 U.S. 655 (1992). Whether that case is wrongly decided is a matter of some debate. Suffice it to say that the law in other jurisdictions is very much to the contrary: consider, for example, the cases of R. v. Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42 (UK House of Lords), R. v. Hartley [1978] 2 NZLR 199 (Court of Appeal of New Zealand), State v. Ebrahim ILR 95 (1994) 417 (Supreme Court of South Africa). Note also the limitation of the Alvarez-Machain holding for particularly severe wrongdoing by the prosecuting state in U.S. v. Toscanino, 500 F.2d 267, 275 (2nd Cir. 1974) (see also U.S. ex rel. Lujan v. Gengler, 510 F.2d 62, 65-66 (2nd Cir. 1975); U.S. v. Noriega, 117 F.3d 1206, 1214 (11th Cir. 1997)), which has not been tested in the Supreme Court. It is also worth considering that the ‘would not prevent a U.S court from trying him’ in Julian’s sentence is somewhat limited in scope. There is no doubt, for one thing, that the U.S. would have committed an international wrong in abducting Mr. Assange… Read more »
Thanks for previous posts. My point was mainly that in most European jurisdictions it would be a crime not to prosecute state agents kidnapping a foreign national abroad. I find it incredible that discretionary prosecution in the US allows this not to happen. But more generally, I find it amusing that an international lawyer could write the above post without pointing out the absurdity of the US position, taking it as it were for granted – would the same lawyer not criticize such a position if it was held by Iran?
Guy – your comments would be more interesting if they weren’t animated by an obvious dislike of the US.
Anon – not as much as your obvious dislike of the rest of the world.
How about a request for extradition via the treaty between the United States and Sweden?
I don’t have copy of the treaty text handy, but it would seem like there might be a case for extradition given Sweden’s general statement on the matter:
http://www.ud.se/sb/d/2710/a/15435
A more relevant section of the Espionage Act has much easier elements to prove.
Section 793(e) only requires that Wikileaks have unauthorized possession of a document relating to national defense, and willfully retain it and fail to deliver it to an employee of the United States entitled to receive it.
Wikileaks doesn’t have to have “reason to believe [the information] could be used to the injury of the United States or to the advantage of any foreign nation”. That only only applies to information in clause (e), not documents.
Wikileaks doesn’t even have to publish the document; that’s an alternative to simply failing to give it back to the US.
The stupidity of remarks like Anon’s never ceases to amaze me. Denouncing someone you don’t know as having an “obvious dislike” of the US because he doesn’t believe whistleblowers should be prosecuted in order to protect the Pentagon from embarrassment? How ridiculous is that? No wonder anon is anon. I wouldn’t identify myself, either.
Just a remark on the comments by Tobias as to the pratice in other jurisdictions. Mr. Bennet wasn’t so lucky in Scotland and his proceeding wasn’t stayed. In France, I suppose you have to go back to a single case of the ’20 of the last century to support the assertion that the way you are brought to Court is relevant in order to assert/deny jurisdiction. Italian courts applied their authorities developped in the ’30 to support a fascist rendition program for dissidents, to the practice between Italy and the Holy See, stating that it is not relevant how and by which means you have been brought into the italian territory (even if the Lateran Treaty states that the individual “has sought refuge”). If I’m not wrong the German Constitutional Court was recently pretty flexible on the issue of “luring”. The ECHR was also disappointing, to those like me, avaiting the “mala captus” principle to be rejected explicitly, in deciding the Ocalan case (…). And the Alvares Machain II case was joined by the European Commission filling an “interesting” Amicus Curiae Brief.
[…] Ku says the answer is yes, under US domestic statutes … if the US can catch him. The “him” in question is Julian Assange, an Australian living in Sweden. (The Swedish […]
[…] WILILEAKS FOUNDER BE PROSECUTED FOR ESPIONAGE? Julian Ku and Kenneth Anderson think […]
not a lawyer but isnt the daily news conferences about the next big offensive in afghanistan more destructive ans creating more peril for our troops than anything leaked about what happened 3 months ago. the only fear here is political fear for their well being
Jean Paul, All agreed. That’s why I said there’s some debate about the issue. On reflection, I should have said that the law in some other jurisdictions is contrary to Alvarez-Machain. I do apologise if my choice of words was misleading. You are right to say that German courts are not opposed to the Alvarez-Machain approach. They have held that only the state from which the accused had been abducted (or usually: lured) could raise the issue of any violation of its rights (see Case No. 2 BvR 1190/84, Neue Juristische Wochenschrift 39 (1986), pp. 1427, 1428 (Federal Constitutional Court of Germany, by a Committee); Case No. 2 BvR 837/85, ibid., p. 3021 (id., by a Chamber); Case No. 2 StR 588/86, Neue Juristische Wochenschrift 40 (1987), p. 3087 (Federal Supreme Court of Germany)). As far as I can tell (which isn’t very far), the French Court of Cassation has also held that only the injured state had standing to raise the issue (Re Argoud ILR 45 (1972) 90). On the other hand, there are some more jurisdictions that have taken a line different from Alvarez-Machain, inasmuch as their courts have declined to stay proceedings only because the involvement of… Read more »
Dear Tobias mine wasn’t a critique to your assertion. The issue of abduction (private o not) and jurisdiction is still open to debate. Authorities denying jurisdiction can mostly be found in legal systems allowing dicretionary stay of the proceeding and sometimes based on considerations of integrity of the justiciary rather than on international law. In France I suppose the last decision denying juridiction where the individual was brought within the territorial jurisdiction of the Court against his will was based on the consideration that the condition of “being within the State’s territory” wasn’t objective, but rather needed to be voluntary as such presence represented a “reiteration of the crime”. If I’m not wrong the decision was commented by Maurice Travers (…). Since then the “condition” has been considered objective. Same for the pirates responsible of the hijacking of the Le Ponant. As to international jurisdiction, I suppose the article 98 issue in the ICC Statute was introduced because there was a mistrust as to the possibility to raise succesfully mala captus issues.
I share your opinion that the US will not abduct Wilileaks leader.
If the Obama Administration chooses to pursue this, it seems to go against Candidate Obama’s promise of a more transparent government.
Why not gun him down or better still in a town centre drone strike the place next time he’s in Sweden (what you only accept collateral damage where there are no news cameras?). It would be nothing the US is not doing at present in 3rd party countries on the basis of ‘intelligence’.
The US rep with people who want to like it and already find what the US does OK would be polarised as it is so why not? Why pretend the US does not do this stuff with lower profile non white people.
Interesting some people want to discuss this inconsequential individual [Assange] and not the information now in the public domain. That strikes me as an admission of sorts.
This crocodile tears for informants did not extend to US/UK friends, interpreters and informants in Iraq so why is the US wailing about these people in Afghanistan? You want Asylum we say to the Iraqis and laugh at them! No way.
Obfuscation?
Response… All of you seem to missing the most important thing….The Criminal Activity of the MOST corrupt Govt. in the world is what is being released. What Mr. assange has provided us is dark look into “who” we really are. We stand up against human rights violations all over the world, but when someone else accuses us of the same, we discredit, arrest or disapear them. What’s wrong with this picture?
What about the precedent set by The New York Times Co vs. The United States? Doesn’t that apply here to protect WL?
dear sirs, madams… please excuse us to interrupt you in this nice charming discussion (“Abduct him? Why not just assassinate him? Faster and much cheaper.”) but – although this might sound boring in your ears (eyes, when reading) – may we please remind you nice commentators here that 1.) the pentagon person who started his media campaign end of july already promised to pack his box 2.) that the continents around you might show less patience with you keeping up this campaign just in order to create a fitting atmosphere while preparing for iran just while afghanistan is comming to a (slow) end 3.) that war crimes and Den Haag are not empty words and the trial to construct and prepare another crime just in order to save texas baby bush a** could show itself too clear and might imply only add a few more years in prison? 4.) that we are talking about a page which showed – originally, let’s stick to the point, please – a video your military pretended not to be able to find on it’s own. yes, it might sound boring, but the “look at the bastards down there” second in the video is talking… Read more »
If the US does indeed intend to pursue this under UNITED STATES of America v. Alfred ZEHE, the public outcry could actually do more harm to the statute.
Surely there’s a difference between espionage (which is what I believe Zehe was charged for) and exposing (ala the Pentagon Papers) internal war reports (or whatever you want to call them) which is really what Mr. Assange is doing. I don’t think he’s on Al Queda’s or the Taliban’s payroll.
M. Gross wrote: “How about a request for extradition via the treaty between the United States and Sweden?”
The extradition information that you link to says:
“Extradition is permitted, provided that the act for which extradition is requested is equivalent to a crime that is punishable under Swedish law by imprisonment for at least one year.”
I don’t think being in possession of document that are classified in the US is a crime in Sweden.
It also says:
“Extradition may not be granted for military or political offences.”
Whether possession of secret military documents count as a military offence or not I cannot really say.
I would be interesting to hear someone with an insight into the relevant laws comment on this.
when thiessen stole the place in a newspaper – stole it from a real journalist by placing his cheap speechwriter PR stuff there – someone published a comment. it was one of the really interesting ones. “”The United States should make clear that it will not tolerate any country….” Excuse me! We are sovereign nations independent of the United States. What part of that don’t you clowns understand? … Assange has caused no harm. The US has caused the harm by killing innocent civilians. 8/3/2010 7:28:55 PM Recommended (2)” — you already went far too much. world is watching, world is and wil be remembering, you can neither erase the video of their minds nor the casualties number from the documents. try to face this fact, plz. and try to understand that this campaign got more and more ridiculous and damaging the chances of every single con who raised his voice so far with every single day. or try to concentrate on your own country again, take a look at your own citizens – children without a chance to grow up in a country which values their education more than the interests of a few texas oil pips, a country… Read more »
Tor:
Surely the equivalent offence in Sweden would be possession of documents classified by the Swedish government? Although I guess that would require the state to experience empathy…
The US likes locking people up and putting them in jail for any reason it can find. This is very scary: http://www.economist.com/node/16640389
Good look for Assange. The moment you lock him up another Assange will appear.
Ayn Rand: “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers.”
Can’t the case of Mr.Ellsberg releasing the Pentagon Papers be an effective judicial precedent?
It’s quite logical that an espionage act targets everybody who intentionally circulates information that can cause or causes harm to the respective nation. Regarding the fact that WikiLeaks withheld 15’000+ reports of the entire 91’000+ report collection, based on security concerns, proofs WikiLeaks’ staff’s awareness that the content of the secret military reports could pose a security risk to AT LEAST the ISAF mission in Afghanistan. It does not proof they were aware that the material could injure the United States. And it doesn’t proof that they believed it would injure the US either. A theoretical exposure of the ISAF mission in Afghanistan to potential security risks does not immediately injure the United States. Regarding the exposure of reports related to Task Force 373 operations, WikiLeaks staff might have been aware that exposure could theoretically injure the United States. Therefore, WikiLeaks staff might have found out that the material might potentially injure the US AFTER they had reviewed the material. To find out about that, however, we’d need to know the uncensored content of the 15’000+ reports still in the pipeline. And that could severely violate the Espionage Act, so we might never find out. There are basically two further… Read more »
Just wonder what will happen to those afghans who have cooperated with US government and their names are in there. I think it is very irresponsible to just upload every thing and put it online. I do not say that we must not be transparent but for God’s sake be careful
well – trying to calm down – no problem to repeat another time if this seems so complicated to understand.
re “It’s quite logical that an espionage act targets everybody who intentionally circulates information that can cause or causes harm to the respective nation.”
excuse me please. the video – which the military tried to hide for years – shows, please, harm caused to who exactly?
the casualties you can see on this page – is, excuse us suprised readers, please, whose harm exactly?
could you please finally stop trying to explain people the blue sky color they see when they look up is a green one with splashing purple dots?
would be nice, thanks a lot.
What wikileaks has exposed is evidence of war crimes. Look at the third video on http://www.collateralmurder.com – there you can listen to eyewitness testimony from a U.S. soldier who was present at the unprovoked slaughter of defenseless civilians and see actual video footage of war crimes. On the longer “Full version” of the massacre by US forces, towards the end there is footage of three hell fire missiles being fired without provocation into a large building – because a soldier saw a man go into it with a rifle. At that time, many men carried rifles there and it was not a crime. Also, pedestrians are ignored by the trigger happy U.S. soldiers.
Who is responsible for these war crimes? Who is responsible for covering up these war crimes?
Those are questions that should be asked, rather than asking if the whistle blowers can be prosecuted. That is if there is genuine interest in justice.
Persons in the US military should be publicly prosecuted for war crimes. Same goes for those who are responsible for covering up these war crimes.
The pursuit of justice would have a huge calming effect on all those who the USA has labeled “terrorists”. In their eyes and the eyes of millions of others all around the world, the USA has terrorized the entire Islamic world. The USA must be brought to justice. It must not be allowed to kill women and children with impunity.
All people must be required to respect the rule of law, including US soldiers.
Julian Assange & Wikileaks deserve the Nobel peace prize, and the generous support of all who long for justice, truth, diplomacy & peace.
Shame on the corrupt elements of the US Gov’t for trying to cover up their blatant disregard for the rule of law, and for all the needless bloodshed they have caused.
ana: “What about the precedent set by The New York Times Co vs. The United States? Doesn’t that apply here to protect WL?”
Paragranum: “Can’t the case of Mr.Ellsberg releasing the Pentagon Papers be an effective judicial precedent?”
The Pentagon Papers case only addressed the authority of a court to enjoin publication. A clear majority of the Court in that case agreed (in dicta, obviously) that the government could prosecute the both Mr Ellsberg and New York Times under the Espionage Act.
Daniel Ellsberg was in fact prosecuted under the Espionage Act. The prosecution was dismissed because of government misconduct (including a burglary by the Watergate “Plumbers”).
I have little doubt that the US courts would uphold the prosecution.
As for extradition, I assume that Sweden has a statute similar to the Espionage Act, which is the usual standard. However, extradition is inherently a sovereign and political act (as recently demonstrated in the Polanski case). I suspect that Sweden would deny an extradition request, although Mr Assange should take care where he travels (openly at least) for the next few years.
Bad case of wanting to shoot the messenger going on around here. American democracy is very broken – capitalism is NOT democracy – that is what has resulted in Wikileaks achieving the status it has. As long as this situation in the US remains unchanged expect many more wikileak type websites to appear and the whistle-blowers to feed them.
How about looking inward, reflecting on the content of the leaked video or the daily horrors contained in the war logs, reflecting on the US record of respecting international law? Until you start to do that I fear you are only missing the woods for the trees.
Good luck!
Typical US arrrogance – laws outside the US don’t matter, laws inside the US don’t apply outside the US. Democracy in name only, and a very warped sense of liberty and justice!
For the US government to prosecute Assange, it would also have to show malice of intent to commit espionage, causing actual as well as theoretical harm. In Bersio v US, 124 F,2d 310 where the defendants were accused of deliberately damaging ships to prevent their movement, the appellees had to show the appeallants mean to damage the ships with the intent to hurt and/or kill the crew on the ship within US harbors prior to leave US waters. As the Court concluded, the burden of proof was met, because there was deliberate intention of showing actual damage.
However, when we’re talking about the dissemination of information, it would be far more difficult for the US to prove this was Assange’s intent, as opposed to his contention that he simply wanted to disemminate the information given to him. Any case argued against him, therefore, would have to also prove he showed malice of intent to commit espionage, which may be far more difficult to prove, as it could potentially violates his rights under due process.
“Post-publication prosecution is probably OK under the First Amendment.”
That doesn’t make any sense. At all.
Connie: “For the US government to prosecute Assange, it would also have to show malice of intent to commit espionage, causing actual as well as theoretical harm.”
No; it doesn’t. As I have noted, Section 793(e) only requires that Wikileaks have unauthorized possession of a document relating to national defense, and willfully retain it and fail to deliver it to an employee of the United States entitled to receive it.
“Bersio v US, 124 F,2d 310″
That was a prosecution under another statute, “tampering with a vessel of the United States with the intent to injure or endanger the safety of the vessel in violation of 18 U.S.C. § 2275.
You think its trivial to prove that Assange obtained the info for the purpose of or with reason to believe it would be used to injure the U.S.?
If so you don’t seem to have noticed the national hero status he and others award to Manning, consisent with every article of Wikileaks philosophy on its ‘about’ page.
How are the repercussions for Julian Assange more worthy of our attention than the repercussions for Wikileaks and the precedent it has already set for the free press?
The immense coverage of Wikileaks has already illuminated new possibilities for whistle-blowers and innumerable online whistle-blowing networks; this includes whistle-blowing networks currently in operation, as well as those that are in the process of emerging.
Even if opponents were to somehow halt the operation of Wikileaks by kidnapping everyone involved and prosecuting every single one, it’s too late to contain the revolution they’ve started. Too many reporters, academics, techies and even ‘common folk’ have been bitten by the truth bug. Transparency represents a new hope in a world hit by global recession.
How many people who feel they’ve been abandoned by their government wouldn’t like to see it exposed?
Stopping Assange doesn’t entail shutting down Wikileaks and even shutting down Wikileaks won’t contain this eruption. Before governments realize this, some people will be turned into martyrs and some servers will be shut down, but most crippling blows will be dealt to the institutions being exposed.
Apparently, technology and knowledge don’t require nuclear weapons to bring an empire to its knees.
It always amazes me when people criticize US war crimes, then they must hate US as well.
Assange should get next Nobel prize for his outstanding and brave work. For sure he deserves it a lot more than Obama.
Watch the three films on: http://collateralmurder.com/ and one is left with no doubt that US soldiers committed war crimes, and that some of their superiors probably encouraged them to do so.
Those crimes must be investigated and prosecuted, NOT swept under the rug.
Somebody has worked to cover up war crimes, classifying video tapes of them as “secret” or “top secret”. The cover-ups need to be investigated & prosecuted too.
The USA’s crimes against humanity and war crimes are state supported terror, that must not stopped. It’s time to stop sweeping them under the rug with a wink and a grin. It’s not funny.
Clearly that behavior has become the norm, rather than the exception. The ruling elite know that without enemies, they’re out of business. They’re insane and in it for the money, they don’t care whose blood gets on theirs.
“The time for war has past… Man must change or die. There is no other course…” The World Teacher
“You think its trivial to prove that Assange obtained the info for the purpose of or with reason to believe it would be used to injure the U.S.?”
It’s not an element of the crime under 793(3), so the prosecution doesn’t need to prove it.