Search results for "Assange"

Goldsmith: Don’t Try to Try Assange

Jack Goldsmith argues that it would be a mistake for the United States to try and prosecute Wikileaks’ Julian Assange.

The government should fully investigate how this major breach of national security occurred. But prosecuting Assange would be a mistake.

The first problem with going after Assange is that the effort is likely to fail. Extraditing Assange from England (where he is now) or Sweden (where he may go to face charges of sexual assault) would not be easy, especially since Assange’s actions might be deemed a “political offense,” for which exceptions are made to extradition obligations.

Even if the U.S. government surmounts this hurdle, a criminal conviction is not assured. The most relevant law, the Espionage Act, is famously overbroad and thus an uncertain basis for prosecution. This is one reason the government has never successfully prosecuted a member of the media for soliciting or publishing classified information. Nor has the government ever successfully prosecuted a non-media organization for solicitation or receipt of classified information.

A failed attempt to prosecute Assange would be worse than not prosecuting him. It would make the United States look even more ineffectual than it does as a result of the leaks.

Goldsmith goes on to explain that a successful prosecution of Assange — however unlikely — could threaten press freedoms. It’s one thing to go after individuals who leak government secrets, but quite another to prosecute those who obtain such secrets and then distribute them further. Journalists solicit and distribute classified information all the time, but they should not be prosecuted for it (an argument I’ve made as well). Leaks of sensitive information can certainly harm national security, but they can also expose government wrong-doing. Federal efforts are better spent ferreting out and prosecuting leakers than going after the journalists, bloggers and [...]

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Will Julian Assange Protect His Book with DMCA Takedown Notices?

Julian Assange is writing a book — and expecting to make somewhere between $1 and $2 million from it.  But his royalties will depend on something he claims to abhor – using government authority to control the distribution of information.

Because if a believer in the free distribution of information were to copy Assange’s book and post it on a U.S. website, Assange or his publisher could insist that the website owner take the infringing copy down immediately under threat of action in US courts.  Failure to take down the book would subject the website to massive damages under the Digital Millennium Copyright Act. (This post assumes that Assange won’t do what I did with Skating on Stilts — make the book freely downloadable under Creative Commons license — but I’m betting that he and his publishers are too greedy to do that.  Oh, sorry, I mean he needs to “recover his legal fees.”)

Now you’ll have to admit that there’s some irony in this.  Assange’s Wikileaks got the equivalent of a takedown notice from  the US government, and he gave them the finger.  In fact that conflict is what makes his book worth the royalties that he’s going to get.  But now he and his publisher are going to rely on United States law to do for them exactly what he refused to do for the United States.  Except this time the takedown notice will protect not lives, but Assange’s income and his publisher’s profits.

Speaking of his publisher, when it signed Assange to the book deal, Canongate Books was giddy with enthusiasm for how he was changing the world:  “WikiLeaks has helped redefine our idea of investigative journalism and our understanding of how information should be disseminated,” its spokesperson said.

All righty, then.  Now [...]

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Extradition, Espionage Prosecutions, etc., for Assange Discussed at Opinio Juris

Kevin Jon Heller, Roger Alford, Julian Ku, and Peter Spiro – who represent a wide range of political and legal views – offer up analyses of legal questions surrounding Wikileaks and Assange over at the international law blog Opinio Juris.  The posts at OJ are thoughtful and legally informed, and the comments are well worth reading as well.  They cover such questions as whether Assange could be prosecuted under the Espionage Act, extradition questions, and somewhat overlooked question of whether the US government policy of collecting biometric and other stuff re the UN violates the US-UN treaty.  Among other things.  The comments are well worth looking at, too. Go to OJ and scroll through the last week of entries.  Add those to Co-Conspirator David’s post here on Interpol, and you have a pretty good handle on somewhat overlooked legal issues arising from Wikileaks.  Also, not a lot of attention has been paid to the Espionage Act, but my Washington College of Law colleague Steve Vladeck has two of the relatively few articles on it, here and here. [...]

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Arrest warrant for Julian Assange

Several days ago, Sweden issued an arrest warrant against Julian Assange for rape. Today, that warrant went global, thanks to the International Criminal Police Organization (Interpol).

While some in the media have reported that Interpol itself issued an arrest warrant, that claim is not precisely accurate. Interpol, which is based in Lyon, France, has no law enforcement powers, and thus cannot issue warrants. Rather, Interpol’s purpose is to share information among different national police agencies, subject to whatever restrictions the originating agency wishes to impose. (For example, the United States does not allow Iran, Cuba, Sudan, or Syria to access fingerprints which it has provided to Interpol.) Interpol also provides expert forensic or investigative services, such  as bomb scene analysis, when requested by police agencies.

Regarding Assange, Interpol today issued a  “Red Notice.” According to the Red Notice, the warrant was issued by the International Public Prosecution Office in Gothenburg, Sweden.

As I detail in the monograph I am writing on Interpol, when a nation (here, Sweden) requests Interpol to issue a Red Notice,  the nation affirms that there is, in that nation, a valid arrest warrant or court order for that person, and that the nation will seek extradition of the person if he is apprehended. Before Interpol publishes the Red Notice, Interpol staff review the application to ensure that there really is a validly-issued arrest warrant or court order, and that publication of the Red Notice would not drag Interpol into political, military, religious, or racial issues, which are forbidden by Article 3 of Interpol’s Constitution.

Countries make their own decisions about how to treat a Red Notice. Some countries treat a Red Notice as an actionable request for an arrest; the United States does not.  In 2008, Interpol published 3,126 Red Notices.

Interpol cautions that [...]

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Obama’s War on Journalism Continues

Or, well, maybe not. From the Washington Post:

The Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange for publishing classified documents because government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists, according to U.S. officials. . . .

The Obama administration has charged government employees and contractors who leak classified information — such as former National Security Agency contractor Edward Snowden and former Army intelligence analyst Bradley Manning — with violations of the Espionage Act. But officials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

Justice officials said they looked hard at Assange but realized that they have what they described as a “New York Times problem.” If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper, according to the officials, who spoke on the condition of anonymity to discuss internal deliberations.

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A Few Words About “Friend of the Court”

Floyd Abrams was invited to say a few words about his latest book Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013). His comments are set forth below.

When one tries to determine which of his articles, speeches, testimony, letters, reviews and the like over a 45-year period are worth publishing in book form, the choices are not easy. It’s not that there are so many imperishable morsels; passing the ugly question of whether anything is worth publishing, there remains the far more prosaic issue of which issues remain live ones, and which positions are worth rearguing.

I had, for example, been dubious about whether to include my 2005 testimony before the Senate Committee on the Judiciary in favor of adopting a federal shield law for journalists and more dubious still about including a 1979 speech (the oldest offering in the book) about the same subject. But I thought the issue, rather quiescent in the past few years, could well resurface in the years to come — and then came the Department of Justice with its breathtakingly subpoenas to the telephone companies that serve Associated Press. I cannot offer thanks, but I am appreciative.

So, too, with privacy issues. The conflicting claims of disclosure and privacy have led to far less litigation than I had expected. I decided, nonetheless, to include a speech I gave that is quite critical of the most celebrated and cited law review article ever written, the classic Brandeis-Warren paean to privacy published in the Harvard Law Review in 1890. The renewed discussion, after the terrorist explosions at the Boston Marathon this year, about the amount of cameras that film so many of our activities, has led to renewed discussion of various aspects of privacy and I am pleased [...]

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Floyd Abrams & the First Amendment: The Risks of Liberty

Here is the last installment before Mr. Abrams’s post. Thanks to Eugene for having me and thanks to all for the comments (critical ones included) from your readers. RC

“Our approach under the First Amendment has wisely, I think, generally been to risk suffering the harm that speech may do in order to avoid the greater harm that suppression of speech has often caused.” That line is vintage Floyd Abrams. So, too, is the following one: “The oldest reality about the First Amendment is this: Hardly anyone really believes that we should protect the speech of those with whom we differ.” In other words, protecting free speech can be risky and can mean protecting the expression of those who offend us.

As a First Amendment lawyer, Floyd Abrams has time and again urged courts to take risks and tolerate offensive expression. Consider, for example, his views on WikiLeaks and Julian Assange. On the one hand, he has been openly critical of “WikiLeaks’ persistent recklessness” in making public documents that could likely threaten lives or actually impair national security. Hence, he argued, the press should exercise a measure of critical judgment about what to print or not print. That is the judgment call of a responsible press.

Of course, such a press prerogative should not be confused with any carte blanche right of the government to censor speech absent compelling reasons. Or as Abrams put it: “None of this means that if WikiLeaks or Mr. Assange were brought to trial in this country that they would have no basis for claiming First Amendment protection. They would and should.”

If owing to his brand of absolutism Floyd Abrams is seen in some quarters as a First Amendment voluptuary (to invoke one of Professor Bickel’s favorite jabs), then his hardy criticisms of WikiLeaks [...]

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Petraeus and the Internal Culture of the CIA

The Wall Street Journal’s Siobhan Gorman has an interesting profile today of Michael Morell, a veteran CIA insider (31 years in) who is tapped to help guide the new director, David Petraeus, as he steps out of the uniform and into the suit, through the maze of internal CIA culture. (It might be behind the subscriber wall.)

In a rare interview, Mr. Morell, a longtime agency power with a nearly nonexistent public profile, emphasized the importance of humility for an agency stained by intelligence misses over 9/11 and weapons in Iraq and controversy over interrogation techniques and rendition. “We end up having bits of information that have a multitude of possible explanations,” he says. “You’ve got to be really humble about the business we’re in.” Some agency veterans say Mr. Morell may be too much of an insider. He has never worked anywhere else, and might miss areas where the CIA’s culture or management are due for a change, they point out.

Gen. Petraeus, the agency’s fifth director in eight years, is the four-star general who led allied troops in Afghanistan, steeped in a culture that confers authority with the insignia on an officer’s uniform. Mr. Morell rose in an agency averse to hierarchy and hostile to leaders who don’t assimilate.

Petraeus has indicated in various ways that a high priority for him is the intelligence and analysis side of the CIA, in which Petraeus has had experience as an outside military consumer of the CIA’s intelligence product. I would hope, however, that he not neglect the forward-looking legal-policy architecture of the CIA’s role in operations. These include drone operations and special operations, and I’d suggest there are two basic issues that can’t be ignored. One is the increasing integration of military and civilian intelligence operations: what is the legal [...]

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A Hard Line on Leaks

Politico has an interesting story on the Obama Administration’s aggressive legal efforts against government leakers.

In just over two years since President Barack Obama took office, prosecutors have filed criminal charges in five separate cases involving unauthorized distribution of classified national security information to the media. And the government is now mulling what would be the most high-profile case of them all – prosecuting WikiLeaks founder Julian Assange.

That’s a sharp break from recent history, when the U.S. government brought such cases on three occasions in roughly 40 years.

The story makes the “gotcha” point that these efforts are in tension with the Administration’s promise of greater openness and transparency. Yet it’s not entirely clear if the increase is due to a change in policy.

It’s hard to say how much of the campaign to punish leakers stems from the current administration’s desire to make it a priority and how much stems simply from the glacial-paced investigation of cases left over from Bush’s term. Two of the five prosecutions brought since Obama took office pertain to alleged leaks that sprung under his predecessor. . . .

despite talk of a scorched-earth campaign against leakers, there have been no charges filed in connection with some of the most significant secrets revealed during the past decade — including disclosures to The New York Times about the Bush-era effort to intercept some phone calls and e-mails without warrants.

The lack of charges over the warrantless wiretapping leak, which hit the front page of the Times in December 2005, is particularly notable since former Justice Department attorney Thomas Tamm told Newsweek more than two years ago that he was a key source for the story.

Anti-leak efforts can be overdone, particularly when rank-and-file government workers are prosecuted while political appointees may engage in selective [...]

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UNICEF harms children

International Adoption: The Human Rights Position is an article in Global Policy by Harvard Law Professor Elizabeth Bartholet. A response article from Paulo Barrozo of Boston College Law School amplifies some of her points.

In brief: UNICEF has been at the forefront of pressuring national governments to set up so many hurdles as to make international adoption rare and extremely time-consuming. The result is that children languish in miserable, hellish orphanages for years. During the critical early months and years in which interaction with loving parents is essential to a child’s normal brain development, the children are neglected and left in squalor.

According to Bartholet, all this is a violation of international treaties about the rights of children, which one might expect UNICEF, of all entities, to be especially scrupulous about obeying. Besides, you don’t need to be an international lawyer to see the flaws of policy that leaves children in terrible orphanages, or as menial servants and de facto slaves in “the community,” rather than in loving homes.

In a 2007 article, I discussed UNICEF’s record in propagandizing for Palestinian terrorism, and its collaboration with the North Korean dictatorship and with the Saddam Hussein regime.

So in short, if you want to give to a charity which does not spend any money on harming children, UNICEF is a poor choice. Unfortunately, UNICEF has a ready supply of funds from good-hearted, uninformed people. American schoolchildren “trick or treat for UNICEF” without realizing that some of the money they raise will be spent on terrorist training camps, or on lobbying to keep children trapped in horrible orphanages. If you followed David Post’s advice to watch the outstanding soccer game between Madrid and Barcelona, you saw that the Barcelona players had “UNICEF” on their jerseys. Some transatlantic airlines, including Aer Lingus, [...]

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Speaking of Wikileaks

According to State Department legal advisor and former Yale Law School dean Harold Koh, the Wikileaks document dumps “place at risk the lives of countless innocent individuals – from journalists to human rights activists and bloggers to soldiers to individuals providing information.” The harm to U.S. diplomatic and military interests is said to be quite large. I’m glad Koh is sending Julian Assange of Wikileaks a stern letter of reprimand, that will show him! Who said the Obama Administration wasn’t tough enough to protect American interests? [...]

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Can the Wikileaks Founder Be Prosecuted for Espionage by the US?

Julian Ku says the answer is yes, under US domestic statutes … if the US can catch him.  The “him” in question is Julian Assange, an Australian living in Sweden.  (The Swedish prosecutor has withdrawn its unrelated rape charge against Assange in apparent embarrassment, and Assange in turn has accused the prosecutor of possibly having been led into a dirty tricks campaign by the Pentagon.)

But what of US charges of espionage?  Adam Entous and Evan Perez report at the WSJ of the US government considering such charges .  At Opinio Juris, Ku analyzes the US domestic statute and concludes that the obstacle is not bringing charges under the statute, which does not preclude espionage chargers against a foreign person outside the United States, but instead having physical custody over a defendant.  After quoting relevant parts of the Espionage Act:

[T]here is an intent issue here (Did Assange obtain the info for the purpose of or with reason to believe it would be used to injure the U.S.?), but I actually don’t think that would be a problem.  Wikileaks’ lawyer seems to think that the real problem is Assange’s nationality and the fact that Wikileaks does not have a presence in the U.S.  But this is not a problem at all.

The Espionage Act has long been held to apply to foreign nationals who commits acts while abroad (see U.S. v. Zehe, 601 F.Supp. 196 (D. Mass 1985).).  The only problem seems to be actually capturing Assange.  It is worth noting, of course, that abducting Assange, even in violation of the sovereignty of a country where the U.S. has an extradition treaty, would not prevent a U.S. court from trying him. (See U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)).  And finally, Wikileaks may or may not have a

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