Assange: Non-Citizenship Should Be Irrelevant to Possible Espionage Charges

by Peter Spiro

Buried in a post from Ben Wittes at Lawfare is a suggestion (in response to HRW’s Tom Malinowski) that the Espionage Act shouldn’t apply outside US territory to non-citizens:

[T]his statute has a nuance that makes one pause before treating it as just another extraterritorial application of American law. That nuance is that the entire moral force of a law like this flows from some notion that the person violating it had some obligation to protect the secrets in question. This notion is why we have a dramatically higher comfort level with prosecuting leakers (who promised to protect classified information) than we do with prosecuting secondary transmitters (who did not make any such promise). When we impose liability on secondary transmitters, including the press, we are essentially saying that their duty as Americans or people otherwise subject to this country’s laws conveys some obligation to protect some information some of the time.

I don’t see that in the letter of the law itself, or even its logic.  The act is focused on the harm, not on the notion of some broken bond.  I’m sympathetic to the drift of Ben’s remarks, but they seem misdirected.  It’s treason that works from the premise of allegiance, not espionage.

Wittes also works with the shoe on the other foot:

If Congress can make such a demand on Assange, the U.S. would be in a bad position to object if the Congress of People’s Deputies made a similar demand on the Washington Post. I actively want more Chinese secrets revealed against the will of the Chinese government. Indeed, were Wikileaks spending more of its time undermining authoritarianism and less of its time undermining democracies, I might admire it. And I would find outrageous efforts by foreign governments to require American news outlets to keep their secrets for them. I’m not against double standards in all circumstances, so it’s possible that the right answer here is hypocrisy: Doing what we need to do and objecting when other countries do the same.

Hypocrisy — and the political offense exception to extradition.  China will have good reason to penalize the release of its classified material, regardless of source.  So if the WaPo published stolen PRC materials, I don’t think there’s anything jurisdictional that would stop the Chinese from charging Donald Graham; they just wouldn’t be able to get their hands on him.

Don’t get me wrong: there are many reasons not to prosecute Assange for espionage.  His citizenship status isn’t one of them.

http://opiniojuris.org/2010/12/14/assange-non-citizenship-should-be-irrelevant-to-possible-espionage-charges/

2 Responses

  1. We are on the same page, Peter.  These excerpts are from an email I sent to Ben earlier:

    …I must say that I am a bit confused by the most recent discussion of Tom Malinowski’s thought that Assange should not be punishable because he is not a citizen, apparently advancing a very narrow view that secondarily divulging classified information is most properly considered only a loyalty offense.  While I express no ultimate view about whether Assange should be prosecuted, I think a loyalty requirement unnecessary and potentially dangerous. The topic deserves more nuanced treatment in my humble opinion.

    …[snip]…

    While I accept that reciprocity is potentially a concern, I would think — at a minimum in this context — that the intent behind a secondary (or even more remote) disclosure should be the determinative factor, even if the disclosure is by publication to the general public.  This would help to minimize reciprocity concerns while avoiding an oversimplified citizenship or other loyalty approach.  Of course, the intent behind secondary disclosure may in part be inferred from the nature of the actor, the nature of the recipient(s), and the nature of the information.  If the intent to harm a nation’s security interests is present, I have trouble accepting an argument that potential criminal culpability should stop with the first non-citizen or non-government employee who receives (rather than extracts) and then further discloses a government’s secrets.

    Of course, the biggest obstacle to prosecuting a violation of an extraterritorially applied domestic law is the lack of legitimate extraterritorial enforcement power.  Merely having an applicable law on the books does not automatically provide a right to custody of the offender or jurisdiction to adjudicate the offense.  Other international law governs these matters.  This is where the power of the U.S. to prevent another state from obtaining custody of its citizens becomes important.  (This is also where powerful states sometimes ignore international law and abduct individuals in foreign countries without that country’s consent.)

  2. John, Thanks – all well taken!

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