U.S. AG Shouldn't Attempt Prosecution of WikiLeaks' Assange

By Wayne Rash  |  Posted 2010-12-13

U.S. AG Shouldn't Attempt Prosecution of WikiLeaks' Assange

The latest revelation in the never-ending WikiLeaks scandal is a claim by the lawyer for the organization's founder, Julian Assange, that the U.S. Attorney General has empanelled a secret grand jury in the Federal Court in Alexandria, Va., to investigate the disclosure of thousands of secret U.S. diplomatic messages on the WikiLeaks Web site. 

The lawyer, Mark Stephens, made his claim in an interview with David Frost on the Al-Jazeera television network.  

So first, it's important to clear up some things. Grand juries that investigate allegations of espionage usually are convened in secret. They frequently meet in Alexandria because that particular court is known for moving fast and it has the advantage of being only a few Metro stops from the Department of Justice in Washington, DC. So even if Stephens is simply speculating, he knows enough about these things to have those facts right, even if he really has no actual knowledge of the existence of an alleged grand jury, which he almost certainly does not. 

But any alleged grand jury is, for the moment, beside the point. Assange is outside U.S. jurisdiction and even if a grand jury thinks he should be tried, the United States will have a tough time getting him into a court to stand trial. Even if the DOJ somehow manages it, they shouldn't. 

One of the most basic beliefs in the U.S. Constitution is that there must be freedom of the press for the democracy to survive. This tenet, which made its way into the Constitution as the First Amendment, came directly from the Virginia Constitution and as such predates the republic. It is a basic part of what preserves freedom in the United States. 

This right to a free press is directed specifically at the U.S. government. It was designed to prevent the government from blocking the publication of embarrassing material, among other things. This was a clear decision when Daniel Ellsberg provided documents to The New York Times and The Washington Post during the Vietnam war. The papers took turns publishing the documents to stay a step ahead of injunctions that would attempt an already unconstitutional effort at prior restraint. 

Ultimately, Ellsberg was charged with crimes resulting from the release of the information that became known as the Pentagon Papers. The U.S. government conducted its investigations of Ellsberg in such an egregiously illegal manner that the case was thrown out. Supreme Court Justice Hugo Black said, "Only a free and unrestrained press can effectively expose deception in government," when he reversed injunctions against the newspapers for their publication of the documents. 

Now comes WikiLeaks and Assange. There are some significant differences involved. First, the U.S. Constitution only guarantees the rights of Americans. Assange is an Australian living in a variety of places in Europe. Right now he's in England, in jail. Second, WikiLeaks isn't exactly The New York Times nor The Washington Post. In addition, from every report I've seen, Assange doesn't conduct himself as a journalist, there's no real reporting going on-simply the release of illegally obtained documents. 

Prosecute the Truly Responsible Parties


I should also note that from every indication I've seen, Assange is an arrogant and perhaps narcissistic person not fit for polite company. But that's beside the point.

What's not beside the point is that the publication of documents that are embarrassing to the State Department is a form of protected expression in the United States. If it's protected here, it seems hypocritical to take action against it elsewhere. Besides, if Assange is eventually dragged into a U.S. court, wouldn't the First Amendment apply to him then? 

So instead of wasting time and a steadily diminishing supply of taxpayers' dollars on chasing someone who is engaged in an activity that would be legal in the United States, why not spend the time and money on the actual criminals and the people who enabled them? 

We already know who actually stole the documents. That man is Army PFC Bradley Manning who knowingly took the information from communications he knew to be secret. He intentionally broke both the law and the oath he took when he joined the military. He had no way of knowing that the documents he sent to Assange would turn out to be relatively innocuous. He instead used his personal pique as a reason to betray the trust placed in him. 

Likewise, Manning's superiors who clearly were derelict in their duty to properly supervise him, to meet existing regulations on the use of computers on secure networks and who looked the other way when he popped a writable CD into a computer on a secure network need to be held accountable. The military has a clear chain of command, and thus a clear chain of responsibility in issues like this. Yet nothing seems to be happening to make sure that this doesn't happen again. 

Assuming that the DOJ can manage to avoid doing something stupid as they did in the Ellsberg case, trying Manning should be a no-brainer. He clearly, and admittedly, performed a treasonous act. His superiors enabled that act and should be hunted down and tried along with him. Their neglect opened the door for this release of classified information and they should pay for that neglect. 

But going after WikiLeaks and Assange for this is both pointless and an offense against the spirit if not the word of the Constitution. Attorney General Eric Holder should go after the real criminals and stop trying to kill the inconvenience of a free press. 

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