Neither Funny Nor Wise

Let me briefly dwell upon why the idea of U.S. Attorney General Eric Holder prosecuting Julian Assange of Wikileaks is a seriously flawed piece of fiction.

First, a couple of short facts out of the way.

  • Julian Assange is a citizen of Australia.
  • Wikileaks operates from Iceland.
  • No one has accused Wikileaks itself of stealing the information.
  • No one has explained how this is a crime prosecutable on foreign soil.
  • No one has explained adequately how this falls under U.S. jurisdiction.

The Espionage Act for Dummies

The idea behind a prosecution is that the Espionage Act supposedly allows the U.S. government to prosecute people who, to use one example from The Washington Post,

“That language is not only the right thing to do policy-wise but puts the government in a position to prosecute him,” Smith said. Under the Espionage Act, anyone who has “unauthorized possession to information relating to the national defense” and has reason to believe it could harm the United States may be prosecuted if he publishes it or “willfully” retains it when the government has demanded its return, Smith said.

This all makes decent legal sense if applied to someone under the natural jurisdiction of the United States, like a citizen or a resident, or a foreign national on U.S. soil spilling secrets. However, none are the case here.

Thus, first, we have to get into the idea of extraterritorial criminal law, the idea that if evil is spawned beyond the U.S.’ borders, but that the effects occur within the U.S., that the crime is prosecutable and punishable within the U.S., provided, of course, the U.S. physically gets its hands on the person it deems responsible. (Example: Former Panama President Manuel Noriega.)

Second, there’s a little problem with this, namely, proving your case in court. The government’s extraterritorial powers (which were originally intended mainly to punish things like piracy, viewed uncontroversially as a crime against humanity for many centuries until the modern Somali pirate crisis broke that consensus) are still limited by the Constitution, namely, the right to due process. So, the government has to prove that harm was done to U.S. national security, and that would surely require the spilling of more secrets to prove that existing secrets harmed the nation.

Third, while the law itself has been upheld under the U.S. constitution, that does not mean that the First Amendment, guaranteeing freedom of speech, went away. This creates major complications.

It’s easy to prosecute according to the Espionage Act where a) the information is conveyed to a foreign power, not the public, and b) the information is a nature that is clearly related to military secrets and does obvious, self-evident harm to national security. (Take Jonathan Pollard’s efforts to get U.S. Navy communication decryption info to Israel, for which Israeli politicians are still trying to get him pardoned, without success.)

Conveying this information to China would make it clearly espionage. Conveying this information to the American Public muddles the issue considerably.

Unpleasant Ramifications

More to the point, Wikileaks doesn’t just publish straight to the reader at home; it works with partners such as The Guardian, Der Spiegel, the New York Times, and so on, to promote the leaked cables, exactly as occurred with earlier projects.

Thus, if this is part of a conspiracy to convey information that Wikileaks and its conspirators know the U.S. considers secret national security information that must be destroyed, Wikileaks’ employees should be seized and arrested right after the relevant reporters and editors at the New York Times are arrested first.

Don’t think there won’t be calls for this. I do not have to strain my brain cells to recall calls for prosecution of the New York Times and Washington Post for the Al Ghraib revelations, and in the case of the revelation of secret CIA detention centers, the New York Times even held the information at U.S. government request until after the 2004 presidential election… and was rewarded by new calls for prosecutions from prominent Republican politicians.

If Wikileaks can be prosecuted for this, why not the New York Times? Why not anyone who publishes the cables, knowing (because it is clear as day in public news reports in their own papers) that Wikileaks was told the information was classified and that it should be destroyed?

Well, that would be because the courts have a bias towards freedom in cases where information is published for the benefit of the public, rather than hidden away and conveyed in secret to a foreign power. That is considered journalism, not treason.

I know there are people trying to muddle the two words, but they are still legally separate.

A Fool’s Errand

Given these enormous obstacles, the idea that Holder, at presidential urging (and that of the politically powerful Secretary of State, Hillary Clinton), will actually seek to enforce extraterritoriality upon Assange and Wikileaks, is not just a bad joke: it is a foolish policy that will establish a principle that any foreign media outlet publishing something the U.S. considers not cool to print is committing espionage.

I know there’s old controversies about certain Al Jazeera buildings being bombed by American forces and so forth, but as I said before, secrecy is a tactic, not a solution. Even if you can do it successfully – which I heavily doubt – it is an ugly legal case with no clear benefit.

Indeed, the main effect of this effort is to increase the status of Julian Assange as a modern-day Robin Hood, a folk hero persecuted for standing up to tyrannical authority, which is giving this egomaniac a far greater platform than he deserves.

Evil Shortcuts Best Not Taken

An alternative has been offered by Republican politicians: declare Wikileaks to be a terrorist organization engaged in hostilities with the United States. Presumably, this would permit  seizure and imprisonment (without trial)  in Guantanamo Bay (or some suitable substitute) for the duration of the possibly endless War on Terror, possibly facing a military court martial with the prospect of execution, or simply, targeted assassination. The latter might be by Predator drone, sniper, counter-terror special forces, bomb, poison, and so forth.

In this case, Rep. Peter King made a lot of radical statements before, he hasn’t changed just because he’ll be a committee chairman, and he really ought to be ignored for the good of the United States.

Aside from the horrific PR, feeding paranoia with these sorts of wild declarations just plays into the “enemy” ‘s hand, so it is poor strategy.

Besides, Wikileaks hasn’t hurt the U.S. badly with this. Just because you can do something, doesn’t mean you should. And so it is here.

Treating this as not a crime, but an act of war, would be an even poorer joke, and even less funny.