The Misplaced US Determination To Indict Assange

I have stayed out of the WikiLeaks scrum to date, mainly because the relatively few cables published to date (only 1,269 of the more than 250,000 cables they possess have been released so far) did not provide that much new on the subjects I normally write on as opposed to just confirming or further supporting previous knowledge and/or suppositions. This is certainly not to say they have not been interesting reading or useful to many others, the WikiLeaks material has been all that.

But now comes the bellicose fixation of the United States government on criminally prosecuting WikiLeak’s editor-in-chief Julian Assange. What started out as the usual idiotic yammering of Rep. Peter King and Sen. Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange. As the following discussion will demonstrate, it will require dicey and novel extrapolation of legal theories and statutes to even charge Assange, much less actually convict him.

The interesting thing is this type of prosecution flies directly in the face of the written charging guidelines of the DOJ which prescribe a prosecution should be brought only where the admissible facts and evidence are “sufficient to obtain and sustain a conviction”. As we have seen in so many instances over the last few years, the DOJ uses this requirement to decline prosecution on a whole host of matters they simply do not want to touch, even where the evidence for conviction of serious crimes is crystal clear and unequivocal. Take for instance the case on the blatant destruction of the abu-Zubaydah and al-Nashiri torture tapes for instance (see here and here), where the DOJ and John Durham used just this basis to decline prosecution because the DOJ just does not, you know, go out on limbs.

So, why would the Obama Administration be so aggressive against Assange when doing so flies in the face of their written guidelines and standard glib protocol? Is it really all about prosecuting Assange? That would be hard to believe; more likely it is not just to monkeywrench Assange and WikiLeaks, but to send a hard and clear prior restraint message to the American press. This is almost surely confirmed by the rhetoric of Joe Lieberman, who is rarely more than a short ride away from his disciple and friend Barack Obama on such matters, and who is making noises about also prosecuting the New York Times.

Never before has the Espionage Act, nor other provisions of the criminal code, been applied to First Amendment protected American press in the manner being blithely tossed around by US officials in the WikiLeak wake. Avoidance of First Amendment press and publication has been not just the general position of the DOJ historically, it has been borne out by significant caselaw over the years. If you need a primer on the hands off attitude that has been the hallmark of treatment of press entities, you need look no further than New York Times v. United States, aka the “Pentagon Papers Case”. In NYT v. US, the government could not even use the Espionage Act in a civil context against the press, much less a criminal one as they propose for Assange, without being forcefully shot down. Daniel Ellsberg is right when he says that “Every attack now made on WikiLeaks and Julian Assange was made against me”.

The Barack Obama Administration, who rode into office on a platform and promise of less secrecy, more transparency and a respect for Constitutional principles, has proved itself time and again to be anything but what it advertised. And to the uninformed populous as a whole, ill served by the American press that is being pinched in this process, Julian Assange presents an attractive vehicle for this prior restraint demagoguery by the US government. The public, especially without strong pushback and fight from the press, will surely bite off on this craven scheme.

But the determination to prosecute Julian Assange is not just a destructive and myopic scheme to effect prior restraint in a digital world, it is laughable from the point of legal foundation of criminal prosecution of Assange. That, however, seems to be no deterrent to the US and the Obama/Holder DOJ. ABC News reported last Friday an US indictment against Assange may be imminent and his lawyers were expecting it, and CBS News confirms with more detail today:

“We have heard from the Swedish authorities there has been a secretly empaneled grand jury in Alexandria…just over the river from Washington DC, next to the Pentagon,” Stephens said. “They are currently investigating this, and indeed the Swedes we understand have said that if he comes to Sweden, they will defer their interest in him to the Americans. Now that shows some level of collusion and embarrassment, so it does seem to me what we have here is nothing more than holding charges…so ultimately they can get their mitts on him.”

Last week, U.S. Attorney General Eric Holder said, “We have a very serious criminal investigation that’s underway, and we’re looking at all of the things that we can do to try to stem the flow of this information.”

Exactly what laws would the DOJ prosecute Assange under? There are two options that appear to have gained traction, the first being the Espionage Act, which is codified in US statutory criminal law in Title 18, Chapter 37, i.e. 18 USC 792 et seq. There are really only two provisions here that could likely be applied to Assange/Wiki, 18 USC 793 “Gathering, transmitting or losing defense information” and 18 USC 798 “Disclosure of classified information”. A review of both statutes yields, at first blush, language that could encompass the conduct of Assange and WikiLeaks.

The infirmity of both provisions becomes apparent upon closer inspection. 18 USC contains several stated active prohibitions, however “publication” is certainly not one of them. There is solid historical authority that such omission of “publication” as a prohibited act was intentional (one would assume in light of the First Amendment). As Jennifer Elsea states in a wonderful discussion in a recent official Congressional Research Service Report:

Moreover, the statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction.

Exactly. And the last bit on “extraterritorial jurisdiction” is not to be overlooked in the discussion either (although it mostly has been to date). Neither Assange nor WikiLeaks committed any overt act on US soil, within its territorial bulge, nor in or on a US controlled facility overseas. Assange is neither an US citizen or permissive resident, nor does his conduct seem to fall within the parameters of the within the Special Maritime and Territorial Jurisdiction of the United States. In short, Assange is neither a US subject of any kind, nor does he appear to have physically committed any overt act within the jurisdiction, even extended, of the United States.

To conclude the Espionage Act discussion, I harken back to New York Times v. United States, where Mr. Justice William O. Douglas wrote,

It is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act.

The various concurring majority opinions in New York Times v. United States are a treasure trove of law directly against the attempt by the Obama DOJ to prosecute Julian Assange under the Espionage Act, and they are a roadmap for Assange’s defense if they do. If the DOJ undertakes such charges, it is a crystal clear signal their own written prosecutorial standards, as discussed above, are worthless and not worth the paper they are printed on.

The second charging modality against Assange that has been identified by the government relates to receiving and/or retaining stolen property. Receiving and trafficking in stolen property is by definition almost always a state law based offense; however, there is a Federal statute that has occasionally been used in situations having at least some analogy to Assange. The statute is 18 USC 641 and it was used to prosecute Samuel Morison and Jonathan Randal. The difference, of course, is that both Morison and Randal were government employees working in intel (Morison) and for the DEA (Randal).

In short, both gentlemen – Morison and Randal – were Bradley Manning, not Julian Assange; and in both cases the press was not pursued. Because the press is simply in a different posture in light of the First Amendment and the plethora of crystal clear caselaw. Secondly, 18 USC 641 facially contemplates a “thing” or “property” and the argument could certainly be made that no such tangible object was ever removed from the government’s possession, nor were they deprived of the use or possession thereof.

Frankly, while this is an argument I would certainly throw out were I defending Assange, I would not want to hang my hat on it. It is not so hard to see a court finding a digital copy of the cable files to be within the ambit of the statute; especially after the warning Harold Koh gave clearly setting up this application of section 641. The problem is, the DOJ still runs headfirst into the brick wall that is the First Amendment separation of press and publication under the seminal New York Times v. United States case. Again, it is impossible to read the majority opinions in New York Times and find the headroom for the US DOJ to prosecute Julian Assange short of engaging in the production of contorted and scurrilous horse manure.

Oh, and one other thing, about the thought that if Assange is prosecuted, the New York Times could be too; no less an authority than former Bush Attorney General Michael Mukasey suggests, while such may place the NYT squarely within the prosecutorial ambit, that the DOJ simply engage in straight up selective prosecution and go only after Assange. Nice. Remember when all those high minded bloggers were saying how principled Mukasey was and what a refreshing choice he would be to replace Alberto Gonzales? I do; that didn’t work out so well.

Eric Holder and the DOJ cannot possibly find jurisdiction to charge American contractors who torture and murder people in the course and scope of their employment by the US Government abroad, and cannot charge CIA supervisors and OLC lawyers who patently admit to destruction of evidence and conspiracy to commit war crimes; however, the same DOJ is now suddenly able to be so legally creative as to find a path to charging a person under the Espionage Act who is not a US citizen, owed the US no duty under citizenship and treason provisions, committed no act within the jurisdiction of the US and who is a member within the general definition of “press” and who only published purported whistleblower leaks given to him. It is amazing how the DOJ is willing to go out on that “limb” when it wants to, but can never so travel when the interests of justice really demand it to.

In conclusion, and to bring this post full circle, there is no established viable basis for prosecuting Julian Assange, in fact all precedent is to the contrary. To do so flies directly in the face of the once vaunted DOJ guidelines for criminal prosecution. For these reasons, there is no reason to consider the attempts by the US government to prosecute Assange as anything but a craven facial assault on the First Amendment and freedom of the press. After seeing the disdain, contempt and avarice the Obama Administration has displayed toward the Fourth Amendment and Fifth Amendment, I guess no one should be shocked.

101 replies
  1. marymccurnin says:

    How can we charge someone who is not in the country and is not a citizen with either of these charges? Simple answer to basic question. We cannot charge Assange but we will since we are a nation of men and not of laws. Maybe this his how Obama will gain in the pols once again.

    • bmaz says:

      Well, I think it fits in with his predilection for “security theater” and willingness to cave to public outcry as opposed to shaping it, even when doing so is derelict to Constitutional interests.

        • Fractal says:

          he is a dishonest and manipulative shit head.

          Obama and Holder both. As we’ve been saying over at the early morning swim, Obama is a craven tool of the plutocrats and a threat to democracy for allowing the oligarchs to control tax policy. Now he and Holder are using their power over prosecutions to foster tyranny. His govt is intolerable.

      • DWBartoo says:

        Excellent post,bmaz, thank you.

        “… Constitutional interests.”

        I was under the impression that the US Constitution died, was taken out and murdered, ten years … and a day ago.

        The “bully” pulpit, clearly, does not “belong” to Obama, but to lesser thugs whom the fourth estate already lionizes at every opportunity … the sagaious, the “properly” religious, and the well-heeled … So, does the traditional media, in this nation, really “need” the “heads up!” or is this just to really impress “those” who might play the role which the founders of this nation wished the press to play … which happens to be Assange’s way?


        • Sabre-Toothed Critter says:

          My own feelings are the “the press” should be defined to include blogs, progressive and/or liberal blogs in particular. Establishment media is not the DoJ’s intended target audience.

          More disheartening to me is the lack of international grumbling. I find it hard to believe that European nations fail to see these US actions are anything other than tyranny, a US attempt to force all peoples around the world to obey US law or face a kangaroo court.

          If my maid takes some of my embarassing emails, and gives them to Herr Schmidt while she is on holiday in Bavaria, how is Herr Schmidt then subject to US law? Ignore is no excuse, even if you aren’t a US citizen?

  2. Peterr says:

    Just so it’s out there:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Those first five words are awfully inelastic. It doesn’t say “Congress shall be careful when they make a law . . .” or “Congress might want to think twice before making a law . . .” There’s no “perhaps” or “maybe” or “under some circumstances” or “in certain situations” in there. It’s simply “Congress shall make no law. . .”

    I’m sure the Strict Constructionists in the GOP will immediately leap to defend Wikileaks and Assange against the misplaced determination to indict them.

    Oh, and I want a pony.

  3. eagleye says:


    I appreciate your extensive analysis of the legalities surrounding Assange, but I’m inclined to think that the USA will just declare Assange an ‘enemy combatant’ and keep him forever confined at a black site somewhere without any due process or a proper trial.

    I’m really curious to see what happens if Assange is extradited. Should it happen, I have mixed emotions– on one hand it would be awful to see the rule of law and our Constitution violated. But the resulting shit storm might be just what we need if we’re serious about confronting power and privilege in this world. I’m up for the fight…

      • spanishinquisition says:

        I agree that I don’t think it will happen, but I wouldn’t put it past TPTB to do it anyway to someone aside from assange.

        • ottogrendel says:

          The potential to apply AUMF to Assange probably exists, but it may be to extreme or unneccessary to make its use plausible. The whole point of inventing the legal status of “enemy combatant” was to negate relevant international and domestic law, opening up a space where power could do what it wanted unchecked by rules. Now that that bridge into lawlessness has been crossed . . .

  4. Teddy Partridge says:

    Charging him is the better path, considering the alternative seems to be to assassinate him. You know you’ve reached rock bottom as a nation when your polity is obsessed with these two choices only.

    He’d better hope he’s only charged.

  5. skdadl says:

    Ooh, I learn such good new language here: “the infirmity of both provisions …” — so elegant, and I can use that. (Not sure about the “territorial bulge” though.)

    Thanks very much for doing this, dad. Some of us need all the help we can get. Lieberman, Obama himself (presuming to define who is and is not a journalist), Koh, Mukasey — they leave me sputtering, although I guess what matters more is whether corporate journalists and then citizens in general will recognize what is being done to them, and start to react.

    Oh, and I heard there were hot dogs over here. fatster said so.

  6. eagleye says:


    You seem to be proceeding under the assumption that Obama and Holder are going to play by the rules, and that process and procedure actually matters. I don’t think so…

  7. orionATL says:

    you’re just in time bmaz.

    the obama/holder doj seems determined to force prosecution under the espionage act.

    that will fail,

    but it will seriously curtail julian assange’s options for several years, which doubtless is its intention.

    this is poltical prosecution of the kind judge robert jackson would excoriate.

    what needs to happen now is for obama, and his operatives to be questioned relentlessly, over time,

    about his support for a free-press-in-fact (not a free press in theory).

    since he took office in jan, 2009, obama has never been pushed hard in public questioning to comment on what seems to me to be his easy personal tolerance for authoritarian govt behavior, in particular, the actions of the doj/fbi.

    it’s not irrelevant to their current ruthlessness, that it was these very “security organizations” whose professional incompetence at headquarters level allowed the saudi terrorists to commander airplanes and fly then into the wtc and the pentagon.

  8. Jeff Kaye says:

    Thanks, bmaz, for your excellent essay. When I start thinking that we have crossed a line, and can sink no further, the Obama administration proves it has deeper and lower to dive.

    The first amendment is the last bulwark against totalitarian tyranny. I can tell you the whole prior restraint business is already, so I hear, having a chilling effect upon publishing. Fear, fear, fear. That is the drumbeat from the White House and DoJ and has been ever since 9/11.

    From their attempts to entrap every pimply-faced 19 year old who imagines himself an Islamic rebel, as part of his angst-riddled identity confusion — and how many among us affected an identification with various forms of social outsiders as part of our growing up? — to major state assaults against our constitutional rights, the rulers of the U.S., made even less safe by the fall of the Soviet Union (it would seem), will end the charade of democracy before they would let their sense of world supremacy evaporate before their eyes.

    A harsh, terrible historical epoch is upon us, I’m afraid. I, like so many others, for a very brief moment thought maybe there would be some real fight in this country against the Bush-Cheney vanguard of this growing anti-democratic movement among the oligarchs. But alas it is not coming true. I don’t give up all hope, and in the end, the oligarchs will lose. But my god, how much destruction will they cause before they are defeated?

    Hard to believe they will throw down the gauntlet with an Assange prosecution, but evidently they have chosen that path. The Norn’s rope is broken, and no one can tell the future now.

  9. MikeD says:

    “an apparently dedicated and determined effort by the Department of Justice to charge Assange”

    I wonder, do you have reliable information about the stage of the process at this point? The last reporting I’ve seen in whose sources at/around DOJ I have faith (Charlie Savage) was that options were being explored. Lately there has been a flurry of claims from Assange attorneys that charges are imminent, grand juries are secretly empaneled, and etc. But I have no particular reason to place credence in the U.S. sources of attorneys in London seeking to shape the public perceptions of any case(s) against their client. I certainly agree there is clearly an effort to establish a means of charging Assange with a crime under U.S. law, but I don’t have any sense that the limitations you so expertly lay out are not in fact carrying the day, as vice it being actually clear to those in the know that charges are something like a certainty.

    • skdadl says:

      I agree that it’s likely that Stephens (one of JA’s two lead attorneys, the other being Geoffrey Robertson, both of them very distinguished) is doing what a good defence lawyer is supposed to do — ie, everything he can think of, and shaping public perception is part of that. Putting public pressure on the U.S. to deny that they’re planning something dastardly is part of it too. I’ve been hoping that’s what’s going on, but it’s still possible that’s not the whole of it.

    • bmaz says:

      Holder and others have made it crystal clear they are seeking a path to charge Assange. As to whether there is a GJ or not, I do not know, but am inclined to believe there is. Assange’s lawyers, who I understand are very well thought of, also report they have been told that by Swedish authorities who have been in extradition discussions with the US. Either way, the US has indicated it is exploring every opportunity to charge and extradite Assange. You would absolutely get the insulation of having a GJ render that charge as opposed to filing a direct information if you are on shaky ground, which they are. So, it makes sense.

  10. wavpeac says:

    I don’t have anything to add regarding the intracacies of the law. However, it seems one pattern of behavior stands out, and that is that we are no longer following the rule of law in regard to many things. I don’t trust that the laws will apply at all. So sad. Just 10 years ago, I would have thought differently.

  11. radiofreewill says:

    In the eyes of the world, turnabout is fair play.

    If Assange the Australian can be brought to the US, then Bush the American can certainly be called to the Hague…

      • frankBel says:

        I’m not knowledgeable on this, so forgive my ignorance, but doesn’t the International Criminal Court have jurisdiction over the crime, and couldn’t they indict and charge any of the Bush/Obama war criminals, then arrest any that were found anywhere outside the U.S. borders?

  12. nomolos says:

    but to send a hard and clear prior restraint message to the American press.

    The american press got that message very clearly about 10 years ago.

  13. dstrong says:

    This has little to do with national security, it has to do with financial security, as in the security of Bank of America, or whatever bank Assange threatened to expose cables on. No one seems to notice or discuss this intense effort to get Assange came after he announced a big release on a major bank that will show their dishonest and deceptive practices. Point in fact, the state department had been in negotiations with Wikileaks for months before the release of the Afghanistan, Iraq, and State Department documents, and yet no intense effort to get this guy for criminal charges. Only after he announces a release on a major bank, most presume Bank of America, was the manhunt begun.

    Also keep in mind, Assange is being held on charges that were earlier last year disissed by the Swiss prosecutor twice. That same prosecutor gave Assange permission to travel to conduct his business, so can someone please explain to me what’s changed since that time. One more thing to add to the equation, the person accusing Assange is reportedly a former associate of the CIA, now that could be coincedental, or mean nothing at all, it’s just interesting.

    In any case, how did charges not considered aggregious enough to keep Assange from traveling worldwide now become of a nature that he has to be held for fear of flight. Something doesn’t make sense here, and my guess is if this guy gets into US hands, we will never see or hear from this guy again. I remember what happened to Bill Casey, Reagan’s CIA director, the day before he was to testify before Congress on Iran Contra, he mysteriously had a seizure, and they cut out his tongue. I put nothing past this government when it comes to protecting secrets, and we all know by now just how in service to the Banks and Multi-national corporations this government is.

    • skdadl says:

      There are no “charges” as such; there never have been any charges. An investigation was opened, then downgraded, then upgraded again, and it has remained open the whole time, still is. What is before the English court is a warrant — the prosecutor wants Assange back in Sweden for the formal hearing she gave the two complainants but delayed on giving him during the month he stayed in Stockholm, at which time she gave him formal permission to leave Sweden (to his lawyer and on her website). The investigation has always been open; she has periodically said that things could happen soon but then again things take a long time. Her public non-pronouncements have consistently coincided with each of Assange’s public appearances.

  14. workingclass says:

    Obama IS the law. And he hates the truth. If you value your life. If you care about your family. You will NOT tell the truth.

  15. wagthedog says:

    Does this mean, they’ll be indicting Bush/Cheney, etc for war crime and crime against humanity? I didn’t think so.

    US Government is a completely lawless gang of bandit and thugs.

  16. YYSyd says:

    I think they will come to a realization that failure to successfully prosecute Assange, after making the effort, will have greater damage in the long run than to just let this one go. But then again, this assumes they recognize and understand a lost cause when they see one (not so apparent eg Afghan war).
    A successful prosecution will have limited chilling effect, that is leaks will become more clandestine and less attributable even in the brokerage service as provided by Wikileaks. The motivation for leaks will in fact increase. A failure in prosecution will result in opening up such a large doorway to leakage, that it is better to leave the “illegality” an imagined condition.

  17. mgloraine says:

    I don’t believe the DoJ has any real intention of prosecuting Assange for anything. This is just the PR campaign to justify his assassination to the public. When the CIA kills him, there will be a substantial segment of the populace who will say “Well, he had it coming.”

    The current media blitz isn’t really to do with anything which has already been leaked or published. The real goal here is to prevent the upcoming leaks about US banks and their relentless corruption. The politicians and administrators don’t care about military secrets, national security, or diplomacy. But they absolutely care about MONEY, and will stop at nothing (including assassination) to protect their sugar-daddies.

    Lieberman is only making a Big Deal out of WikiLeaks because the banking lobbies which own him gave him a call and said “Stop the next leak at all costs.” To which Lieberman no doubt replied, “Okay, you’re the Boss!”

  18. msiddique says:

    The reactionary ideology of the Obama administration is exposed in Eric Holder’s effort to try to prosecute Assange, while the enablers of the Bush period neo-fascist thugs who committed war crimes allow them to go free! And Americans do not know why the rest of the world think that it is US (and its surrogates in Europe and Asia) that is primarily responsible for enabling the criminal gangs such as the Al Qaeda to hurt innocent people. If Obama was not a closet stooge of the conservative right wing, he would have prosecuted Bush-Chaney cabal for crimes against the Iraqi people.

  19. BearCountry says:

    bmaz, I’m sorry but you are mentally living in a time when the scotus and the doj actually cared about the LAW, not the people in power (well, not so much). Whatever the gj and holder decide, about which obama will say there was no choice, the scotus will uphold simply by not accepting the case. However illegal the case may be, it will move foward, and if it looks shaky, there is always Bagram Air Base.

    • mgloraine says:

      Too true. Our “public servants” are in fact the servants of the wealthy and powerful. They only concern themselves with constitutional nuance and other legal niceties when fabricating a cover-story for their abject subservience to those motivated by greed and lust for power. We only make fools of ourselves when we try to attribute integrity and a sense of duty to those who have repeatedly demonstrated nothing but corruption and duplicity.

    • wavpeac says:

      I really do think that this talk of charges is simply a cover for having him arrested and held as if there is a legitimate crime.

      1) we are’t following our constitution or the laws of this land anymore.(patriot act, fisa laws, torture, mortgage laws, foreclosure laws…)
      2) banks like gmac and BOA can and have stolen money and property and no one will stop them. This is a fact.
      3) censorship is occuring, has been occuring.
      4) propaganda is occuring through our media.

      One invariant pattern seems to be that whenever Saudi is involved or implicated in wrong doing, the connection is completely ignored. Completely. (ignored meaning that there is no official recognition of the connection). It’s like a big blank space…repeating over and over again.

      We really need to be willing to face who is truly in charge of the U.S. We cannot change what we don’t accept. We don’t have much time.

      • bobschacht says:

        One invariant pattern seems to be that whenever Saudi is involved or implicated in wrong doing, the connection is completely ignored. Completely. (ignored meaning that there is no official recognition of the connection). It’s like a big blank space…repeating over and over again.

        I seem to recall that the Bush family is extremely close to the Royal Saudi family. Bandar bin Sultan was so close to them that he was sometimes known as “Bandar Bush.” And Bandar knew his way around Washington.

        Bob in AZ

        • sagesse says:

          Saudis are about to have a long-term Squadron bed-down in Id-y-ho …

          Buy some planes from the Defense Industry, it’ll buy you airspace – and the ability to terrorize wildlife and recreation-seekers and Native Americans with ghastly noise and polluting contrails over tens of thousands of square miles in the Interior West … When the Singapore AF bedded down at the same Base after buying a bunch of Boeing planes, the excuse was: “it’s a tiny country – they don’t have any airspace”. Not the same with the Saudis …

          • PJEvans says:

            There’s a guy who wants to put a training base for police (with firing ranges etc) in Ocotillo, CA, east of San Diego. It would bring them jobs, and also probably use all the limited amount of water they have. Some of the locals moved there to get away from things like helicopters and guns.

  20. Ymhotep says:

    The American oligarchy which owns and controls the press will not now, nor have they ever, leak(ed) anything that our government officials have not told them to leak. Many of those government sanctioned leaks are nothing more than intelligence agency misinformation and propaganda “news” items. Don’t take my word for it simply read any foreign newspaper for the next 30 days. Peace

  21. bigbrother says:

    The DOJ has become a political arm of the USG. The Pentagon papers and Daniel Ellsberg reminder you refer to ring so true and clear. The spineless AGs will always be corrupted by enemies of the rule of law.
    I read a lot on this subject: this is the clearest yet to my mind. The freedom of the press is a requirement for a democratic society to have the information to operate freely. The oligarchy is extending its tenticles once again.

  22. Mason says:

    I got the impression last week that DOJ was considering the merits of an argument that Assange is not a member of the press in the same sense that DOJ argued last year concerning members of the blogosphere and whether they can claim the reporter’s privilege to refuse to identify his/her sources of information. I don’t recall how that was resolved, and in any event, the confidentiality privilege isn’t in issue, unless at some point DOJ decided to grand jury Assange to question him regarding the identity of the person(s) who sent him the information. Given DOJ’s bellicose mutterings last week, it certainly seems like they intend to get an indictment against Assange for violating the Espionage Act and then they’ll give it their best shot hoping the case is assigned to an administration-friendly district court judge who will deny Assange’s pretrial motion to dismiss for lack of jurisdiction and for violating the First Amendment. No doubt that DOJ would appeal an order granting the defense motion and seek a writ of certiorari from the Supreme Court, if the Court of Appeals rules against DOJ.

    My guess is DOJ will proceed, regardless of the probable outcome to a legal challenge to the basis for prosecution, on the theory that maximizing the chilling effect of the pending prosecution on other leakers and journalists for as long as possible is worth taking the risk that it will eventually lose and establish an important First Ammendment precedent limiting the government’s authority to control the press.

    Since I agree with my learned colleague bmaz, if I were in Holder’s position, I already would have decided that there is no legal basis for a criminal prosecution for violating the Espionage Act and, in any event, the First Amendment prohibits such a prosecution.

    • bmaz says:

      Yeah, they certainly have all the research and contemplative abilities and skills we do and appear long past the opportunity to say “Naw, we just can’t go there”. What will be interesting is to see how far they will go with this. If it is really about prior restraint, you would think the DOJ would not want to risk getting adverse rulings. I dunno; we shall see.

      By the way for the opposite position on charging the Espionage Act, here is an op-ed from NLJ from some Connecticut law professor. Hope the link works, I tried to get around paywall.

      • bigbrother says:

        Joe Lieberman’s area of influence. AIPAC must be somewhere behind the curtain. Yes, Waypeac, who has the levers of power? I thought in a democracy it was the people. The notion of law is that principled acttion is a result of legal foundation. i.e. what behavior is acceptable in civil society? Did that come from some fairy tale of wishful hopes and dreams. Pandora’s box needs to be closed.

  23. Knoxville says:

    The only thing worse than Obama not believing in freedom of the press is the corporate media not believing in the need for freedom of the press.

    Is there not one major corporate media outlet that will stand for journalistic integrity?


  24. bluewombat says:

    What started out as the usual idiotic yammering of Peter King and Joe Lieberman has turned into an apparently dedicated and determined effort by the Department of Justice to charge Assange.

    But Republicans want it to happen, and the Obama administration has to do what they want, because…because…well, because they’re the Obama administration. That trumps the law and even the Constitution, because George W. Bush, whose policies Obama has to uphold, said that the Constitution is just a piece of paper.

  25. ottogrendel says:

    What is the US going to charge him with, publishing common knowledge or information anyone could find out from the news?

    The WikiLeaks expose the limits of power via the lies, laziness and pretensions of governments. The documents reveal that governments are less competent, honest and powerful than they pretend to be. This means that they can be less feared. If the US response to Assange is really about both revenge and an effort to get back some of the power lost by the publishing of the leaks and not an effort to keep secret things that everyone now knows are not really secrets, why would the DOJ care about a conviction? If the goal is power and fear supports power, if fear can be restored there is not really a need for a conviction.

    “[Sending] a hard and clear prior restraint message to the American press.” Yup.

    “[N]ovel extrapolation of legal theories”? The US should have no trouble there.

    Terrific post, bmaz.

  26. ottogrendel says:

    “Secondly, 18 USC 641 facially contemplates a “thing” or “property” and the argument could certainly be made that no such tangible object was ever removed from the government’s possession, nor were they deprived of the use or possession thereof.”

    I suspect the DOJ may argue that due to the nature of electronic information the notion of theft and property, as previously understood and applied, is outdated.

    Thanks again, bmaz. My understanding of this issue is greatly improved because of your analysis.

  27. MadDog says:

    From the other side – via The Council on Foreign Relations:

    The Legal Case against WikiLeaks

    Interviewee: John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law

    The release of more than 250,000 diplomatic cables by has raised questions about what legal course might be pursued against WikiLeaks and its founder, Julian Assange. The State Department is likely pushing for Assange to be prosecuted under all available statutes–including those in the 1917 Espionage Act–for releasing information “damaging to our foreign relations and also potentially to sources of information to the State Department,” says John B. Bellinger III, a former legal adviser to the State Department and the National Security Council. He notes the threat of invoking the Espionage Act was implicit in a letter to Assange and his lawyers sent by State’s legal adviser before the WikiLeaks dump…


    If you were still working as the legal adviser at the State Department and the attorney general called for a meeting to discuss what the United States should do about WikiLeaks, what would be your advice?

    …Just prior to the release of the initial cables by WikiLeaks, Koh wrote a very strongly worded letter (Reuters) to Julian Assange and his lawyers describing in detail the damage that would be caused if the information was disclosed and asking for Assange to give the information back.

    There was clearly a legal purpose for that very strongly worded letter beyond simply asking for the return of the documents. It was to put Assange on notice that the U.S. government believed the release of the information would cause “harm to the national security.” That is an element of offense in the Espionage Act for willful disclosure of information relating to the national defense that the releaser knows would cause damage to the national defense. Having sent that letter, I would anticipate that the State Department is strongly urging that Assange be prosecuted under all available statutes for release of this information that is extremely damaging to our foreign relations and also potentially to sources of information to the State Department…

    • Mary says:

      Ahh, so nice of Mr. Bellinger to chime in as well. He’s the guy who sat on the information direct from the CIA that a slew of the people they were torturing at GITMO were innocent. What’s that he said – something about being informed of the damage and how that impacts the wilfullness element of your crimes?

      yeah, got it.

  28. donbacon says:

    SECRET – NO FOREIGN (S/NF)Information becomes classified “secret” when someone with authority in the executive branch determines that its revelation would cause “grave damage” to national security. No Foreign means that only Americans can know this, ’cause we’re special.

    Here’s an example of a “secret – no foreign” document (extract):

    (S/NF) Mubarak is 81 years old and in reasonably good health; his most notable problem is a hearing deficit in his left ear. He responds well to respect for Egypt and for his position, but is not swayed by personal flattery. Mubarak peppers his observations with anecdotes that demonstrate both his long experience and his sense of humor. . .

    There is nothing here that might cause “grave damage” to national security. There are two lower security classifications — For Official Use Only and Confidential. But this gossipy common-knowledge diplomatic cable doesn’t qualify for those, either.

    Which is why SecState Clinton said on December 3rd:

    In fact, some of the analysis that has been done of the information that has been made available through these leaks has basically concluded that there’s not much news, there’s not very much to comment on, there’s no big revelation. It’s the day-to-day work of what diplomats all around the world do. And we need to be sure we can continue to have candid and open conversations.

    So thanks to wikileaks we see that “the day-to-day work of what diplomats all around the world do” is really quite silly.

    And that’s what these stuffed shirts don’t like especially — the leaks serve to ridicule their performance.

    • ottogrendel says:

      Indeed. It seems the content of the documents is far less important than that their publicity undermines the exercise of power, fear and control. Or more mundanely, as you point out, some folks’ jobs may be compromised.

      As the article by Eco that I linked to @ 40 suggests, if foreign embassies are outdated because the speed of communication and travel no longer require occupying a permanent office building in another country, what tasks could embassy employees come up with to justify their continued employment? As it turns out, apparently (think Parkinson’s Law), the answer is collecting and collating publicly available data. Laughable. One of the many reason to stop fearing the Great and Powerful Oz: there is nothing behind the mask but silliness and pretense.

  29. wayoutwest says:

    Why is there so little outrage from the legal profession in the US? When will the ABA, Trial Lawyers and the ACLU condemn these moves and take action?

    The use of the, Materal Support For Terrorists and now the Espionage Act, seems to show that we have truly Crossed The Rubicon and rule of law has given way to the rule of men.

    • nonpartisanliberal says:

      Yes, but very few people are willing to acknowledge that. There is still much cognitive dissonance that needs to be cleared away.

      This country’s march into fascism has been very incremental but persistent. Because it has been gradual, it has avoided causing alarm. With every crisis, our rulers take the opportunity to encroach and subjugate further.

      Hey, Germans living in the Nazi era thought they were free. It was only in hindsight after a great deal of suffering that the truth became clear.

  30. ronbon says:

    My favorite aphorism these days is: “I’m glad to be 85…..NOT 25 !!”.

    Now I have an additional one: “Julian Assange for President !!!”

    And, incidentaly, he would be a HELL of a lot better than the current
    miscreant (for whom I voted twice) and whom I now consider to be the ABSOLUTE WORST president in our long, sordid history. (Edited by Mod: On this blog, we prefer to stick to facts and do without references to conspiracy theories as if they were fact.)
    I think long and often about my five close friends who gave their lives in defense of a wonderful country nearly seventy years ago, and how lucky I thought I had been in not sharing their fate.

    But that was BEFORE the terrible three: Clinton, Bush II and whateverthehell his name is who is now methodically destroying the remnants that country to which we were all so devoted. Soon I will be privileged to re-join them; for those of you who will be left behind: TOUGH SHIT!!!

  31. nonpartisanliberal says:

    Obama and Holder are fascists. That is not hyperbole. The WikiLeaks matter is forcing the masks off their faces. They are not going after the Bush administration or Wall Street because they approve both. It’s the whistle blowers who are their enemies.

  32. captjjyossarian says:

    At the top levels, Rule of Law is a myth.

    But what I see in Assange is a man who hold potentially damaging information and has made demands.

    What I’m wondering is…

    Why has he made demands rather than letting leaks speak for themselves?

    How and why was he protected when he was leaking damaging information on the US Military?

    Why are the promised leaks early next year only focusing on one big bank?

  33. donbacon says:

    The government complainers are claiming that the wikileaks hurt the government, but of course they didn’t. Wikileaks merely jeopardized the reputations of some people in government. And a person with a hurt reputation loses power, even though the government isn’t hurt.

    That situation recalls Jonathan Schwarz’s “The Iron Law Of Institutions.”

    The Iron Law of Institutions is: the people who control institutions care first and foremost about their power within the institution rather than the power of the institution itself. Thus, they would rather the institution “fail” while they remain in power within the institution than for the institution to “succeed” if that requires them to lose power within the institution.

  34. BeachPopulist says:

    Don Meredith died the other day. Maybe it’s time to sing his favorite song, “Turn Out The Lights, The Party’s Over” for our country.

    Thanks for the post, Bmaz. But like a previous poster, I just expect the government to stick Assange in a legal hellhole, maybe GITMO but more likely Bagram, and let him rot. Regardless of what any court says, who has the physical power to make the government produce him or release him? Answer: nobody.

  35. runfastandwin says:

    You assume, naively I think, that the DOJ exists to bring justice. Nothing could be further form reality, the DOJ exists to punish the enemies of our two major political parties, depending on which one is in charge.

    • donbacon says:

      You assume, naively I think, that the DOJ exists to bring justice. Nothing could be further form reality, the DOJ exists to punish the enemies of our two major political parties, depending on which one is in charge.

      Gerry Spence, the famed trial lawyer:

      “We are told that our judges, charged with constitutional obligations, insure equal justice for all. That, too, is a myth. The function of the law is not to provide justice or to preserve freedom. The function of the law is to keep those who hold power, in power.”

  36. runfastandwin says:

    Anyway once habeus corpus went down, for all intents and purposes so did the idea of justice in this country. All that’s left is the cryin’.

  37. Mary says:

    You know, I initially had hopes for Mukasey – not high ones, bc there’s no way he’d have gotten the nod if you could have had high hopes in him, but some hopes. I’ll give a mea culpa on that one – but it’s not like he’s been all that much worse than Koh or Holder or Jeh Johnson et al which is pretty sad to say.

    On the res issue – this case was literally just decided today. They didn’t have any problem with code being a thing for theft purposes.

    BTW – where are all the torture supporters with their arguments that Assange was operating under a good faith belief that he was doing the right thing?

    I noticed in this LATimes story you linked their “go to” was this disjointed mish-mash from ex CIA lawyer Smith:

    But experts in national security law say the WikiLeaks founder is likely to face prosecution because of the scale and brazenness of his operation.

    “I think there is a very good chance of a prosecution” under the Espionage Act, said Washington lawyer Jeffrey H. Smith, a former general counsel at the CIA. “His actions are not those of a responsible journalist that would enjoy the protection of the Constitution. He solicited people to commit a crime by sending him classified information. And then he disclosed it on a transmission belt.”

    Kinds of glosses over the “responsible” journos at NYT, Der Spiegel etc. who printed and everyone who reprinted, but even still – compare and contrast with the selfsame Mr. Smith on why torturers who freeze a man to death and disappear random German and Canadians and arrange for live burials in Egypt and genital razoring in Morocco should nevereverever be prosecuted.

    6 Reasons Not to Prosecute [Torturers]

    I especially like his fourth reason, given after a stream of disingenuous disinformation

    Fourth, prosecuting CIA officers risks chilling current intelligence operations.

    Yeah …. so, let me get this right. We can’t prosecute torturers bc it might mean that they aren’t as able to carry out new intelligence operations like there old ones – you know, like where they send a guy to Egypt; bury him alive until he falsely confesses that there are al-Qaeda training camps in Iraq, then launder that torture through Colin Powell to set up a war in Iraq that will kill tens to hundreds of thousands, send Americans home in body bags, limbless and/or mentally damaged, and create 2 million refugees.

    God forbid we should “chill” that, but there’s no concern about chilling a free press that might have put out information to PREVENT those domestically focused intelligence operations aimed at disinforming the US population.

    What a great guy – I can see why Obama and Panetta were so enthralled by him.

    OK – I admit it, I kinda liked this one too:

    Sixth, President Obama has decisively changed the policies that caused so much damage

    Or at least, as a CIA asset you can put out that information as long as someone like Assange doesn’t come along and leak out the cables where Obama threatens other governments if they go after our torturers.

  38. Mary says:

    BTW – I want to see them sell the damage aspects given that Assange/Wikileaks very publically asked them to review what they were putting out and offer redaction.

  39. YYSyd says:

    I hope the rumoured reported rumours of Grand Jury convening is not true. Not only should we protect ham sandwiches, but a stunt like that will make things unpredictable for everybody. I can not stress enough the need for those in authority to understand their own limitations. When the best terrorist arrests are result of grooming of FBI’s own created and equipped would-be bombers, when government is routinely exploring the neither regions of its citizens with latex gloves, when information is thought to be secret when there are 2 million legal potential viewers, and when Wall Managers become the defense line against imagined terror threats, bit of self-reflection should not go amiss.

    • bobschacht says:

      I can not stress enough the need for those in authority to understand their own limitations.

      That’s on my Christmas wish list, too. But I don’t expect to get it. The MOTU, understand their own limitations? HAHAHAHAHAHAHAHAHahahahahah (snerk)
      Why should they? Remember, we’re looking forward, not back. There is NO negative consequence for them not understanding their own limitations. So far, no one is willing to say “NO” to them. That is a sure recipe for unbridled hubris.

      Bob in AZ

  40. readerOfTeaLeaves says:

    Read the post, and appreciate it.

    I just can’t seem to get over the fact that the whole idea of prosecuting Assange is insanity.

    The people prosecuting Assange are, in part, the same people who got played by Dick Cheney, Scooter Libby, and so we are all supposed to watch the same government that failed to nail Cheney’s ass put Assange away for somehow distributing information?

    This is the same government that, in the previous administration, lied the US public into war on the claims of WMD. Then never held anyone accountable for those false claims.

    The same government that was ‘led’ by a group of people who deliberately ‘outed’ a CIA agent, and then raised money from a pack of politically connected oligarchs for Libby’s defense fund? The same government whose former VP’s Chief of Staff’s 4 felony convictions were pardoned by Pres. GWBush?

    And we’re supposed to watch this same lumbering bureaucracy go after Assange? Are you f*cking kidding me?

    • readerOfTeaLeaves says:

      Clearly, the hypocrisy overload this post reveals is more than I can stand these days.

      Assange is the messenger.
      If the DoJ thinks they can stop him, they’re deluding themselves.

      Half the people that I know are — upper middle class, professionals — talking avidly about how much they love “The Girl With The Dragon Tattoo” (which I’ve not yet had time to read). Honestly, when even attorneys, accountants, dentists, physicians, and managers are viewing hacker culture as something of interest, of some sort of ‘merit’, what the hell is the DoJ thinking?!

      If the US had not been lied into war, then maybe the government would have more credibility.
      If Scooter Libby were rotting in a federal prison, then maybe this DoJ action would be credible.

      But the contradiction of going after Assange’s ass, while a high government official like Scooter Libby continues on about his daily affairs — after outing a CIA agent, after repeatedly lying to the FBI — makes the idea of DoJ going after Assange look like absolute lunacy.

      The WikiLeaks are, in my view, one more symptom that the level of trust for large bureaucracies in an age of networked information is very, very low.

    • waynec says:

      Is there a connection between the “thermonuclear bombshell” Assange promises to drop if he is disappeared and: Bush/Chaney/Gulf War II
      Nigerian yellow cake
      Outting of Ambassador Joseph Wilson
      Nigeria charging Chaney with bribery
      Halliburtob bribing Nigeria to get Chaney off the hook

      I’d like to see what Assange has on these topics


      • readerOfTeaLeaves says:

        Beats me. I got no clue.

        I’d love to see some cable traffic that would reveal what actually happened leading up to the so-called ‘Economic Meltdown’ (i.e., institutionalized, global insurance fraud) of Sept 2008. And I’d also love to see cables about the Georgian episode the preceding month, when McCain was sanctimoniously stating that ‘we’re all Georgians now’, which was insanity. I think there’s a relationship between that Georgian invasion, the meltdown of Sept 2008, and the commodities manipulations of the spring and summer of 2008, although I’m damned if I can connect the dots correctly.

        If some Niger docs get tossed into all this, plus a few Goldman Sachs emails re: derivatives and offshore tax havens get tossed into the mix, so be it.

        As for venalty, the US needs to be tough.
        When today’s is reporting that people were basically kidnapped by the forces of darkness in Kosovo in order to ‘harvest’ their organs, and that this ‘market’ is controlled by their mafia, you know there’d better be someone tough enough and pissed enough to enforce some moral order on the planet.

        Wasting time and energy on Assange is, in my view, pure stupidity.
        He’s a symptom of the times.
        He’s not a criminal.

        Going after people who are **not** criminals only depletes the resources for going after the really hideous bastards, like people who ‘out’ CIA agents, and also like people who ‘harvest’ human organs and then exploit them for profit.

        Enough with wasting time on Assange, already.
        Assange is ‘mission creep’.
        The badasses are the ones to stay focused on.

        EW and bmaz, thx for letting me vent (!).

Comments are closed.