WL Central reports:
Today, Jennifer Robinson, one of the lawyers for Julian Assange, told The Guardian that the US government may be about to press charges against Julian Assange under the Espionage Act. She said that the legal team had heard from “several different US lawyers rumours that an indictment was on its way or had happened already, but we don’t know”. Ms Robinson told ABC News that “Our position of course is that we don’t believe it (the Espionage Act) applies to Mr. Assange and that in any event he’s entitled to First Amendment protection as publisher of Wikileaks and any prosecution under the Espionage Act would in my view be unconstitutional and puts at risk all media organizations in the U.S.”
Rumours about the possibility of Julian Assange having been indicted by a grand jury, whose proceedings are secret, have been circulating for a while. The Christian Science Monitor had a few days ago quoted Stephen Vladeck, an expert in national security law at American University, who said that an empaneled grand jury could have already been considering the case. “We wouldn’t know what they’re doing until the whole thing is concluded,” he said. The Monitor also quoted CNN legal expert Jeffrey Toobin, who said “I would not be at all surprised if there was a sealed arrest warrant currently in existence.”
Prominent civil rights attorney Harvey A. Silverglate, who worked on the Pentagon Papers case, also raised the possibility in an interview with NECN, while also pointing out that prosecution would be extremely difficult, and for many reasons not in the interest of the United States government.
As we previously covered, the legal consensus appears to be that a prosecution under the Espionage Act would be both difficult and dangerous for the United States, notably with regards to First Amendment protections (also see: EFF, ACLU.)
The US Congressional Research Service published on December 6 a report titled “Criminal Prohibitions on the Publication of Classified Defense Information” [PDF]:
This report identifies some criminal statutes that may apply, but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions. (emphasis ours)
The report’s conclusion states: “Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected.”
A new poll finds that only 31% of Americans believe that the publication of secrets is protected by the First Amendment.
This implies that most Americans have unquestioningly swallowed the line that the boundaries that circumscribe freedom for the press are those defined by the US government. The government defines the terms of national security and the press must not challenge those definitions.
In other words, the press should have as much freedom as the government sees fit.
In other words, the press can enjoy the same amount of freedom that a well-trained dog enjoys once it has learned to never strain at its leash.
In other words, most of the Americans who say that America is at war in order to protect our freedom, see that freedom as being akin to the freedom of a domesticated animal.
We know how to bark, how to wag our tails and how to catch treats.