United States v WikiLeaks

In poker it is impossible to bluff with all your cards showing. In law it is difficult, but not impossible. Alan Dershowitz, high profile American civil liberties lawyer and Professor of Law at Harvard.

Noam Chomsky is not the kind of man I read or admire. On nearly every political and economic topic he raises, I find his vitriolic far-left, anti-American rants objectionable and his ability to distort the truth renowned . But, I must say that in the matter of the 250,000 cables dumped online by WikiLeaks, the Massachusetts Institute of Technology professor emeritus is right on the money:

Perhaps the most dramatic revelation, or mention, is the bitter hatred of democracy that is revealed both by the US Government - Hillary Clinton, others - and also by the diplomatic service.

It’s a given that one of the major reasons for government secrecy is to protect the government. From its own electorate that is. Chomsky rails against many of the foreign policy objectives of Hillary Clinton in particular, and of the US Government in general, as projects that require collusion with Arab tyrants, achieved best by the United States turning a blind eye and offering a tin ear to their autocracy, human rights abuses and corruption. And who pays the price for this orchestrated denial of wholesale electoral representation? Why the so-called “Arab street”, that’s who.

Politicians in the United States on both sides of the aisle are apoplectic with rage against WikiLeaks. Not only have they forced Wikileaks to move the hosting of its web site from the United States, but on Sunday they managed to tighten the noose further by cutting off the pipe that carries multiple small donations from its legions of supporters, when they leaned on online auction house multinational eBay’s subsidiary Pay Pal to suspend serving WikiLeaks.

While the anger of some lawmakers is genuine, if misplaced, most, such as former presidential nominee Sen. John Kerry (D-MA) are undoubtedly duplicitous. The Senator from Massachusetts claimed that WikiLeaks founder Julian Assange, is guilty of "a reckless action that jeopardizes lives". Funny that. Confronted with an earlier WikiLeaks publication, that principally embarrassed the former Bush administration, the senator was, shall we say, more tempered: "However illegally these documents came to light," he intoned in July, "they raise serious questions about the reality of America's policy toward Pakistan and Afghanistan".

WikiLeaks pummelled Kerry’s reputation by revealing his deceit when simultaneously glad handling American Jewish voters while sucking up to the cashed up Qataris, promising them to do his best to cleanse both the Golan Heights and eastern Jerusalem of Jews.

Other politicians, such as the former Republican Governor of Arkansas, Mike Huckabee, a Fox News Channel talk show host, is clear headed and more honest. While he too seeks legal action, it’s against the source of the leaks he wants to charge, rather than the leaker.

Thankfully, there are other politicians whose motivations are solely concerned with in the public interest. Like a rock in a raging sea stands Rep. Ron Paul.

A free thinking Republican from the 14th Congressional District of Texas Paul is taking a stand as one of Julian Assange’s few defenders in Washington, arguing that the WikiLeaks founder should get the same protections as the media.

Paul said the idea of prosecuting Assange “crosses the line”.

“In a free society we're supposed to know the truth,” Paul said. “In a society where truth becomes treason, then we're in big trouble. And now, people who are revealing the truth are getting into trouble for it.”

“This whole notion that Assange, who's an Australian, that we want to prosecute him for treason. I mean, aren't they jumping to a wild conclusion?” he added. “This is media, isn't it? I mean, why don't we prosecute The New York Times or anybody that releases this?”

Why indeed?

First among those wanting to lynch Assange, United States Attorney-General Eric H. Holder, Jr, said last week that the Department of Justice is examining whether Assange can be charged with a crime for posting hundreds of thousands of leaked government intelligence documents and diplomatic cables.

Charged for breaking what law exactly?

Notwithstanding that nearly half of the 250,000 internal State Department cables were classified as “confidential” or “secret”. Pointedly, none were “top secret”. Lost in the media fog is the fact that Julian Assange’s actions of publishing were not criminal. I repeat, not criminal.

Assuming Assange can be located and fronts a Swedish court to face allegations of sexual misbehaviour, only then can the United States DOJ try to deal with him. To have him forwarded thereafter to the United States, the Swedish authorities, pursuant to the Extradition for Criminal Offences Act (1957:668) must be persuaded that the offences committed were not “military or political”. This makes life difficult for the DOJ as Sweden, like many countries, allows an “out” extradition requests for "political offenses," and Assange is sure to argue that exposing US foreign policy to a wide audience is a political act.

Of course the United Kingdom may choose to extradite him to the United States instead of sending him to Sweden.

In this case, HM Government will take comfort from Article 15 of the US-UK Extradition Treaty, which requires the government to weigh numerous factors in deciding where and when to extradite, based on the gravity of the offenses and assuming the offense in question is punishable in both jurisdictions.

Disclosing state secrets is covered by the United Kingdom’s Official Secrets Act (1989). Article 5 provides for criminal penalties for disclosing state secrets assuming the disclosure is “by a Crown servant or government contractor without lawful authority”. Last I heard, Assange was not in the employ of the US government.

Even better news for Assange is that Article 4 of the Extradition Treaty mirrors the Swedish escape clause in not granting extradition if the offense for which a request is made is “political”.

That said, it will be a Herculaneum effort to extradite Assange for espionage. Holder could try charging Assange with computer crimes or perhaps criminal copyright infringement and seeing if the extradition requests gets up.

On Sunday, Baruch Weiss, a former federal prosecutor and now litigation partner at Washington law firm Arnold & Porter clarified the difficulty for the DOJ: even if Assange arrives shackled in the United States the story isn’t over:

1. WikiLeaks is a “media” player despite what many in Washington would like to believe; and
2. The US government has never successfully prosecuted a media entity for a leak.

President Barack Obama, by his silence on this matter, unmasks that he knows what few in his cabinet and in Congress know: that Julian Assange, by revealing classified information in the manner in which he did, violated no statute. None.

Like Weiss, Hina Shamsi of the American Civil Liberties Union’s National Security Project, asserts that the “government is looking at wheeling out the Espionage Act,” a 93-year-old long-in-the-tooth statute that “prohibits wilfully disclosing information relating to the national defence”. The prosecution must prove, among other things, that a defendant knew that the information he was disclosing was potentially damaging to national security and that he was violating the law.

To counter the DOJ’s argument, Assange will doubtlessly offer copies all around of letters he wrote to the United States ambassador in London and another letter to the United States Department of State inviting suggestions for editing (more commonly called “redactions”) prior to publication and stressing that he has “no wish to harm the national security of the United States”.

His letters were ignored.

The ACLU’s Shamsi, echoing Weiss, is convinced that Holder may want to persuade the courts that WikiLeaks is many things. Anything but “traditional” news media. But this could be difficult. Good luck.

In a US court Assange will doubtlessly seek protection of the First Amendment where he will show that WikiLeaks should be afforded exactly the same freedoms (of the press and of expression) that traditional media enjoy. Since Chief Justice Hughes of the United States Supreme Court in 1938 defined the press as, "every sort of publication which affords a vehicle of information and opinion", it will therefore be very hard for the DOJ to persuade the court that Assange was not “media”. What exactly is he, Secretary Holder? An online hot dog vendor?

In court a case along these lines would surely unfurl yet more secrets. Weiss in the Washington Post opines that if Julian Assange’s attorney is smart, I'll venture he'll call the Secretary of Defence as his first witness. If he’s really smart, he’ll ask the Secretary of State as his second witness.

The ACLU’s Shamsi, in defence of the First Amendment, argues that if newspapers could be held criminally liable for publishing leaked information about government practices, we might never have found out about the CIA's secret prisons or the government spying on innocent Americans. “Prosecuting publishers of classified information threatens investigative journalism.” And of course WikiLeaks is a media organisation publishing and investigating.

In the event that the prosecution will wish to compromise by directing WikiLeaks to be more “responsible”, the defence could cite Miami Herald Publishing Company vs. Tornillo where the Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment and so the government may not force newspapers to publish that which they do not desire to publish.

No public, American or Australian, should have to depend on leaks to the news media and on whistleblowers to know what their government is up to. But in the absence of transparency, what choice do citizens have?

The third President of the United States, Thomas Jefferson, in 1823 said "the only security of all is in a free press. The force of public opinion cannot be resisted when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary, to keep the waters pure."

Today’s crop of self-serving, special interest can rattlers on both sides of the aisle think they know better that the third President. Times have changed, they will argue, and they have nothing to learn from him.

Maybe they are right. After all what could Jefferson possibly teach them? All he did was write the Declaration of Independence.