Why Prosecuting Assange Won’t Be a Walk in the Park

by Kevin Jon Heller

Baruch Weiss, a former federal prosecutor and a partner at Arnold & Porter who was involved in the AIPAC defense, explains why in an editorial today in The Washington Post.  I was particularly interested in his discussion of why he believes it would be difficult to prove that Assange knew the disclosures would harm national security:

Here, Assange can make the department’s case especially difficult. Well before publishing the cables, he wrote a letter to the U.S. government, delivered to our ambassador in London, inviting suggestions for redactions. The State Department refused. Assange then wrote another letter to State, reiterating that “WikiLeaks has absolutely no desire to put individual persons at significant risk of harm, nor do we wish to harm the national security of the United States.”

In that second letter, Assange stated that the department’s refusal to discuss redactions “leads me to conclude that the supposed risks are entirely fanciful.” He then indicated that WikiLeaks was undertaking redactions on its own.

If it would be difficult to prove that Assange knew the disclosures would harm national security, it would be even more difficult to prove that he intended them to do so.  Yet another reason, if you believe that Assange should be prosecuted for the disclosures, to follow Roger’s suggestion that he be prosecuted for economic crimes.

http://opiniojuris.org/2010/12/04/why-prosecuting-assange-wont-be-a-walk-in-the-park/

4 Responses

  1. I think if Assange were to succeed in the defense that he supposedly did not know that the leaks would be harmful to national security would make a joke of the courts. Surely someone with the intelligence and gusto to carry-out the Wikileaks cannot be taken as someone who similarly did not consider the grave ramifications his disclosure would cause.

  2. Since when does a refusal by a victim to assist the perpetrator in reducing some effects of his crime have any bearing on the intent of the perpetrator?

  3. HLS,

    It doesn’t, but that’s not the point.  It’s the request for help and subsequent response to the refusal to help that are relevant — because both are inconsistent with an intent to harm.

  4. Kevin, unless I’m mistaken (I’m no expert on the Espionage Act), isn’t “intent” basically the same thing as knowledge here?  If Assange knew the possibility of harm existed, and proceeded anyway, then whether he desired the harm to occur or not is irrelevant.  (That’s the reading I take from the AIPAC district court opinion.)

    His request to the government suggests he didn’t desire to cause harm.  But unless he sincerely believed that the government’s failure to help him meant the harm was insubstantial—which seems incredibly implausible, especially in light of his decision to redact the documents anyway—his lack of desire to cause harm doesn’t mean he didn’t have the requisite “intent.”

    The difficult problem here is that there’s no obvious distinction between Assange and a newspaper.  I’m much less worried about the theory that the government is estopped from prosecuting him because it declined to collaborate with him.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.