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.