Defending Assange

Now that Julian Assange has been arrested in the U.K., his fight for the moment is to prevent extradition to Sweden, which wants to arrest him for questioning about allegations of sexual misconduct.  But given the comparative laxity of any punitive measures Sweden might impose even in the worst case scenario, a more troubling concern is the possibility of extradition to the United States for criminal prosecution for espionage.

If that happens,  however, he might have a pretty good shot at winning.

The Espionage Act of 1917, 18 USC §§792-799, is what he’d have to deal with (there are reports that the DOJ is already preparing these charges).  Here are the parts that are most likely to apply:

§793(c) gets you up to 10 years in prison for receiving anything pertaining to U.S. national defense, if you did it while having “reason to believe” that it was illegally obtained, and that it would be used either to the injury of the U.S. or to the advantage of another country.

§793(e) gets you up to 10 years in prison if you’re in possession of such stuff, and you have “reason to believe” that it “could be used” either to the injury of the U.S. or to the advantage of another country, and you go ahead and disseminate it or cause it to be disseminated.

Well, wait, you say.  Those sound pretty much exactly like what Assange freely admits to having done.  A private in the U.S. Army apparently downloaded a whole bunch of confidential documents, and provided them to Wikileaks.  Assange ordered the documents to be released, publicized what he was doing, and publicized that it would likely injure the United States.  Forget all of Assange’s bluster about the harm being minimal.  His actions seem to hit all the statutory elements.  So how can he win?

As several have now pointed out, including Gabriel Schoenfeld in the WSJ (link behind paywall), Assange’s actions may be protected by First Amendment freedom of the press.  Wikileaks is a kind of journalism, as it is in the business of acquiring information the public doesn’t already know, and reporting that information.  It’s sort of (but not quite) like the New York Times publishing the Pentagon Papers, which the United States Supreme Court ruled 6-3 it could do because there was no imminent grave harm that would justify a prior restraint such as an order to stop the presses.

Some, like Schoenfeld, say Wikileaks is not really like the Times, because the Times is trying to inform the public rather than harm the government’s ability to carry out its policies.  But that’s frankly hogwash.  Anyone with half a brain understands that, if the Times got its hands on stuff that would obstruct policies its editorial board disapproves of (which includes most of the U.S.’s foreign policy), they’d publish it in a heartbeat.  See, e.g., the Pentagon Papers.  Or the Washington Post and the whole Valerie Plame ordeal.  Cf the Times’ reporting on the Climategate emails (“The documents appear to have been acquired illegally and contain all manner of private information and statements that were never intended for the public eye, so they won’t be posted here”).

A 5-justice majority in the Pentagon Papers case did say in dicta that, if the Times went ahead and published the materials, they might well be liable for prosecution under the Espionage Act.  The actual ruling only has to do with prior restraint, however, and does not reach the issue of whether the First Amendment trumps the Espionage Act here.

That said, any difference between the NYT and the Washington Post and Wikileaks is only a matter of degree, and not a substantive difference.  All three publish secrets willingly, even when they have reason to believe that the published secrets may harm the U.S. in some way or be to the advantage of another country.  It happens all the time, and nobody gets prosecuted for it.

If Wikileaks winds up resulting in criminal prosecution here — where nothing “Top Secret” was released, and the government chose not to do anything when explicitly given the chance to identify documents that might endanger people if released, and where the U.S. isn’t really harmed (since every diplomat knows these kinds of things get said, and so while mildly embarrassing it’s not likely to damage relations with other countries, any whom might be next) — Assange is going to have a good argument that he knew it wouldn’t be so bad, and so he had no reason to believe that it could be used to injure the U.S. or put it at any real disadvantage.  That blows the mens rea element out of the water.

On top of that, you can bet your sweet bippy that the U.S. press corps will pile on with all kinds of amici filings to make it go away.  Because they do realize there’s not a whole lot different between what they do and what Wikileaks did.  And if there’s precedent for criminalizing Wikileaks’ only slightly more extreme behavior today, that precedent could easily be applied tomorrow to their own conduct.

Throw some top-notch lawyers in the mix, representing Assange and the press and the various interest groups, and Assange’s chances look better by the minute.

We don’t approve of what Wikileaks did.  It was potentially dangerous, and certainly malicious.  But as things stand, it’s a fair bet that Assange would win if the DOJ goes after him.