Thursday, January 3, 2013

Evidence for Assange's Potential Prosecution in the US

[Author’s note: This is the third post in a three part series on Julian Assange.]

It is highly likely that the US government is secretly preparing charges against Julian Assange for the disclosure of classified US documents.

On December 5, 2010 on Meet the Press, Mitch McConnell, the leader of the Republicans in the Senate, called Julian Assange, "a high-tech terrorist" who should be, "prosecuted to the fullest extent of the law."

The New York Times reported on December 7, 2010 that, "The Justice Department, in considering whether and how it might indict Julian Assange, is looking beyond the Espionage Act of 1917 to other possible offenses, including conspiracy or trafficking in stolen property, according to officials familiar with the investigation."  

On December 19, 2010 on Meet the Press, David Gregory asked Vice President Joe Biden whether he saw Assange as a high-tech terrorist, as McConnell had said, or if he thought the situation was more similar to the Pentagon Papers. Biden replied, "I would argue that it's closer to being a high-tech terrorist than, than the Pentagon Papers."

In February 2012, Wikileaks released emails from Stratfor, a private intelligence company. These emails showed, among other things, that a member of Stratfor management had written to his colleges, "We have a sealed indictment on Assange." The email was described as being written in January 2011.

David House, a friend of Bradley Manning, says that on June 15, 2011 he testified before a secrete grand jury that he claims was deciding whether Assange would be charged for his release of classified US government documents through Wikileaks. 

Three individuals associated with Assange and Wikileaks, Smari McCarthy, Jeremie Zimmerman, and Jacob Appelbaum, claim that they have been detained and interrogated by US authorities at airports. Jennifer Robinson, a British lawyer representing Assange, claims she was temporarily prevented from boarding a plane. 

An Australian newspaper, the Sydney Morning Herald, reported in September 2012 that US documents they obtained through Freedom of Information requests show that the US government has designated Assange and Wikileaks as "enemies of the state."

Michael Ratner, a US lawyer for Julian Assange, believes that a grand jury is investigating whether to charge Assange with "conspiracy to commit espionage” due to his interpretation of a legal document obtained by an Australian news program.

An important question that would arise in any such prosecution would be, "Is Wikileaks a news organization?"

Wikileaks releases classified documents from governments all over the world as well as from private companies. These releases are meant to highlight wrongdoing committed by those in positions of power. Wikileaks issues press releases and summaries on the groups of documents it releases. For the most part, however, turning these documents into news stories that can be digested by the general public is done by traditional news agencies (New York Times, The Guardian, etc.). Therefore, I would not classify Wikileaks as a news organization. However, Wikileaks has a purpose similar to that which we hope our news organizations aspire: to expose injustice and official misconduct.

There can be no doubt that Wikileaks is a publisher and a media organization, and Espionage Act prosecutions of media organizations, or their editors, are incredibly rare. If charged, Assange would have a very powerful first amendment defense.

If Assange is prosecuted in the US for his work with Wikileaks, perhaps his fate would be similar to those who were prosecuted through the Espionage Act for leaking information to the press. The charges against Danielle Ellsberg and Anthony Russo were dropped due to government misconduct. Samuel Loring Morison was sentenced to two years. All major charges against Thomas Drake were dropped and he was sentenced to a year's probation and community service. Shamai Leibowitz pled guilty and recieved 1 year and 8 months. John Kiriaku agreed to a plea deal to serve 2 and a half years in prison. Based on these precedents, the odds seem relatively good for Assange.

However, the treatment of Bradley Manning, the source for many of Wikileaks disclosures, is a cautionary tale for Assange. Manning was kept in solitary confinement for a substantial part of his pre-trial detention. Manning is still awaiting his trial 2 years and 7 months after his arrest, the duration of which he has spent behind bars.

The volume of the disclosures by Wikileaks of classified US documents is much larger than was the case in previous Espionage Act cases. Floyd Abrams, who defended the New York Times in the Pentagon Papers case, believes that Wikileaks is in a dangerous position in relation to the Espionage Act.

The prosecution of Wikileaks and Assange in the US could have a chilling impact on national security journalism. If Assange is prosecuted in the US, he would offer an elegant defense of the need for a free press and the importance of holding the powerful accountable. Nevertheless, his failure to redact the names of US informants in Iraq and Afghanistan would undoubtedly hurt his case. I have no doubt that the trial would be fascinating to follow. However, if he loses, he could face decades behind bars.



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