Due to an extended period of traveling my internet access ebbs and flows, so blogging will be light from this corner over the next forty days (most access is used to just try to catch up to events as they unfold!). But I thought this piece was a nice complement to Adriejan’s earlier post on his thoughts on what Assange has done via WikiLeaks and how it might be interpreted morally and legally. The article essentially brings in two pretty insightful lawyers to consider what lies ahead for lies ahead legally for Assange (on the leaks only):
GWEN IFILL: Now, for a look at the legal questions surrounding the Assange case, we turn to Jeffrey Smith, a partner at the Arnold & Porter law firm. He served as general counsel of the Central Intelligence Agency from 1995 to 1996. And Abbe Lowell, partner at the law firm McDermott, Will & Emery, he’s been involved in a number of high-profile cases and has defended clients charged with espionage.
Welcome to you both, gentlemen. Jeff Smith, what jeopardy is Assange actually in?
JEFFREY SMITH: I think he’s in serious legal jeopardy. And I think he should be.
Obviously, the U.S. government is looking at a variety of charges, espionage being the most central. But there are a number of other things, as the attorney general said, for which he might be charged.
GWEN IFILL: For instance?
JEFFREY SMITH: Well, there’s a variety of possibilities, including mishandling of government property, theft, receipt of theft of government property, other things that I’m sure the government is looking at, possible disclosure of the identity of intelligence agents, any number of things.
GWEN IFILL: What kind of case can you imagine being made against him?
Is it one that could stick, Mr. Lowell?
ABBE LOWELL: Well, first, it’s not hard to charge him, because grand juries do that with not such a high level of proof.
The question will be whether a charge sticks. And that’s depending on a number of factors. One is, there’s never been a prosecution of the recipient of this kind of information under the Espionage Act, when that entity claims to have First Amendment media protection.
So, one issue will be whether or not WikiLeaks is a media outlet, and whether or not Assange is a journalist. If so, it’s one question as to whether that statute applies constitutionally. Secondly, if it does, there’s cases that say that, again, it’s easy to charge, but to convict, the government has to have proof beyond a reasonable doubt that he had the highest specific intent to do harm to the United States that you possibly can have.
And that may be something they can prove, but people shouldn’t think that this is just a walkaway. It’s not that easy.
GWEN IFILL: Not a slam-dunk. Define, first of all — assuming that espionage is one approach which the Justice Department is pursuing, define what that means.
JEFFREY SMITH: In this context, as Abbe says, it’s never been used, but the plain language of the statute does say that it is a crime for someone who has national defense information without authority to convey it to someone else, knowing that it will do harm to the United States.
Over the years, the courts have added to that, knowing that it will do harm, the requirement that the individual act in bad faith. And my own judgment is that that will be pretty easy to prove here. I do not think that what Assange did, this massive release of information, with no patina of journalism around it, I think it’s hard to believe that that will be constitutionally protected activity.
GWEN IFILL: Let’s talk — let’s just get that off the table, this whole question of whether he is a journalist and whether he is — what he did was constitutionally protected.
In your opinion?
ABBE LOWELL: Well, here’s what the government would say in bringing a case.
The government will say that this is just providing the vehicle of a site in which raw material is dumped out, with no editorial function and no real activity, ergo, it’s not really journalism.
And what journalists likely will say, because the line is a very fuzzy one, and it’s a dangerous one under the First Amendment, and Assange will say back, is, no, acquiring information by whatever means and disseminating it to the public is the definition of journalism.
It has not been tested. It is ironic that this issue of what is the new media, what is the Internet may be defined and tested under the auspices of a 1917 criminal statute called the Espionage Act.
GWEN IFILL: Because this is — what we remember is the Pentagon Papers, for instance, the case of Daniel Ellsberg, who wasn’t a journalist, but released these documents, which were hard-copy documents.
JEFFREY SMITH: Yes.
GWEN IFILL: They weren’t electronic documents, so it wasn’t as many. But does that make a difference in how we gauge this?
JEFFREY SMITH: I think there are a lot of differences.
First of all, the Pentagon papers case, as it went before the Supreme Court, was a prior-restraint case. That is to say, the government was trying to prevent The New York Times from publishing it, rather than prosecute Ellsberg for disclosing it.
And, even in that case, a majority of justices on the Supreme Court said, admittedly not central to the decision, but said that prosecution of journalists might be possible in some circumstances. Justice Douglas dissented.
But I think this may be a case — I think he has no real hope to call himself a journalist. He even solicits people on his Web site for them to submit classified documents or secrets. So, in some respects, he’s inducing others to violate the law. And I don’t think the courts would look favorably on that.
ABBE LOWELL: Gwen, the thing is that, up until now, these have been very selective cases with very selective disclosures…
GWEN IFILL: Right.
ABBE LOWELL: … whether or not it’s a single potential document or whether or not it’s a single specific disclosure, not hundreds of thousands, and not done in this fashion.
So, therefore, the WikiLeaks case is going to be the test at the outer limits of how far the First Amendment may protect. And what are those words in that very old statute, the Espionage Act, going to mean, when they were written in the wake of World War I for a phenomenon of maps and ledgers and diagrams, and being applied in 2010 to terabytes of information?
GWEN IFILL: Well, and also to kind of a post-terror environment, or which…
JEFFREY SMITH: Yes.
GWEN IFILL: But I’m curious, one little detail, which is, he’s not a U.S. citizen. How liable is he under these laws?
JEFFREY SMITH: Well, there’s one case in which an East German citizen was convicted under the statutes.
I don’t think — he undoubtedly would raise the question of extraterritorial application, but I don’t think his citizenship makes any difference. It will have had an impact on the United States. And I think the courts won’t give him any slack on that issue.
ABBE LOWELL: And he, if he wants to, will raise the defense of whatever he gets out of the First Amendment which would be applicable to him in the United States, even if he wasn’t a U.S. citizen. So, it will cut both ways.
But, because he is not in the United States, there’s the extra issue of whether he can be extradited. And that’s a whole different set of obstacles for the U.S. to get. And, anyway, it’s just not that simple, that he’s done something and we’re going to have him here the day after tomorrow to face charges.
GWEN IFILL: Nothing is terribly simple in this case.
What — what about the idea that he has stolen government property, that he is in possession and is disseminating something that belongs to somebody else?
JEFFREY SMITH: I think there’s a relatively minor dimension of this. It may be a case — a charge brought against him, but the much more serious is the espionage harm to the national security.
And I think that I’m — frankly, I’m hopeful that the government is able to obtain jurisdiction over him and successfully prosecute him.
ABBE LOWELL: I think that’s what the attorney general was referring to, in part.
GWEN IFILL: Yes.
ABBE LOWELL: I mean, I — it’s an easier, in some ways, case to make than to sort through the First Amendment protection of the Espionage Act’s application to the media.
And the wrinkle there is that he’s not the one who stole the information, at least as far as what is being reported.
GWEN IFILL: Private Bradley Manning is alleged to have — the Army private — to have done it.
ABBE LOWELL: That’s right. So, as to whether or not the normal theft of government information can be applied to him is yet another complication. Now, it is a serious crime. And it can be charged and punished as a felony. And it’s always easier to go after the easier statute than it is to do the other.
So, if you’re looking at — to what the federal government could do, they will look at the Espionage Act. They will look at the theft of government information or government material. And we will see if there’s even a more creative one that the attorney general had in mind.
GWEN IFILL: What is the difference, theoretically, between what Julian Assange did in this case and what newspapers did in publishing the information he gave them, The New York Times, The Guardian in London?
JEFFREY SMITH: I think it’s a fundamental difference. What Assange did was solicit this young private, assuming that’s — he’s the source of it, to give him the secrets. And then he just put it out or is proposing to put it out.
What the newspapers have done, in my judgment, is constitutionally protected. They looked at the material. They talked to the U.S. government. They asked the U.S. government what harm would result. They made certain redactions in the documents. They did other reporting surrounding the cables to see how it fit in the broader picture of what’s going on.
And I think that’s fundamentally different than what Assange did.
GWEN IFILL: And…
ABBE LOWELL: And from a…
GWEN IFILL: Go ahead.
ABBE LOWELL: … First Amendment point of view, Gwen, though, not so fast.
GWEN IFILL: Well, that’s what I was going to ask. Is there a broader definition of the First Amendment protection here that could be applied?
ABBE LOWELL: You know, Jeff is correct that, in terms of conduct, depending on what conduct is found, whether or not he did solicit the private or not, for example, would be a very big difference.
JEFFREY SMITH: Yes.
ABBE LOWELL: But — but, putting that aside, let’s just say that you are comparing apples to apples, and the apples were what he discloses to the public and what the other media disclosed. If it’s the same cables with the same redactions, if it’s the same kind of information, that will not distinguish his conduct well from what the other, let’s say, more traditional media does.
And I will tell you, whether or not it changes the charge will be a very big part of his defense, to show that those two acts are the same.
GWEN IFILL: It sounds very much like, at least from a legal sense, this story is just beginning.
JEFFREY SMITH: Yes.
GWEN IFILL: Jeff Smith and Abbe Lowell, thank you both very much.
JEFFREY SMITH: You’re very welcome.
To be clear, the piece is full of opinion, legal and otherwise, but I think it nonetheless provides a good look at the considerations on the table and, in part at least, some of the perspectives likely being considered at various levels of the U.S. government. It is quite interesting that this case may be “tested under the auspices of a 1917 criminal statute called the Espionage Act”. Clearly those who drafted the Act had no capacity to envisage some of the practical realities at the heart of this case. That said, I think the principles of the Act are what are at play in this case, and so it is probably a red herring to point to a lack of congruence between a 1917 Act and technological innovation.