Congressional Research Service Notes That There Are Serious Challenges To Charging Assange

from the ain't-so-easy dept

While a lot of the rhetoric from the US government — concerning Wikileaks and Julian Assange and whether or not any law was violated — has been overwrought and full of hyperbole, it appears that the Congressional Research Service (which tends to do a damn good job most of the time) has put out a nice simple report detailing the specific legal issues and laws that might apply here (pdf), and more or less summarizes that the US government would be breaking new ground in charging Assange, and may have difficulties in succeeding. While the report notes you could probably stretch the law to cover what Wikileaks did, it warns:

[The] statutes described in the previous section 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…..

The report does note that there has been at least one case it’s aware of where a foreign national was charged under the Espionage Act for activities done outside of the US. But, it is quite rare, and beyond a single district court ruling saying this okay, the history and language of the Espionage Act suggest it was not designed for this purpose.

The report also delves into the hurdles to having Assange extradited to the US (something the US is apparently already discussing with the Swedish government), pointing out that no current US treaty “lists espionage as an extraditable offense.”

But the biggest hurdle is noted towards the end of the report, in highlighting the rather serious Constitutional issues associated with attempting to try Assange for anything in the US, with a lot of focus on the ruling in the Pentagon Papers case:

Where First Amendment rights are implicated, it is the government’s burden to show that its interest is sufficiently compelling to justify enforcement. Whether the government has a compelling need to punish disclosures of classified information turns on whether the disclosure has the potential of causing damage to the national defense or foreign relations of the United States. Actual damage need not be proved, but potential damage must be more than merely speculative and incidental. On the other hand, the Court has stated that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” And it has described the constitutional purpose behind the guarantee of press freedom as the protection of “the free discussion of governmental affairs.”

[…]

[If] national security interests were not sufficient to outweigh the First Amendment principles implicated in the prior restraint of pure speech related to the public interest, as in the Pentagon Papers case, it is difficult to discern an obvious rationale for finding that punishing that same speech after it has already been disseminated nevertheless tilts the balance in favor of the government’s interest in protecting sensitive information.

The publication of truthful information that is lawfully acquired enjoys considerable First Amendment protection. The Court has not resolved the question “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well.” (The Pentagon Papers Court did not consider whether the newspapers’ receipt of the classified document was in itself unlawful, although it appeared to accept that the documents had been unlawfully taken from the government by their source).

The Court has established that “routine newsgathering” is presumptively lawful acquisition, the fruits of which may be published without fear of government retribution.

There are definitely plenty of loopholes whereby the government can try to file charges against Assange, but in reading through the document it would likely be a pretty tough sell. You can read through the entire document after the jump.

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Comments on “Congressional Research Service Notes That There Are Serious Challenges To Charging Assange”

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62 Comments
Chris Rhodes (profile) says:

Re: Re: No Worries

Oddly enough, I just read this. The guy was extradited from the UK to the US and found guilty of “conspiracy to obstruct justice” (even though he was acquitted of actually obstructing justice).

Never underestimate the ability of the US to come up with a trumped-up charge that will get foreign governments to roll over for them.

Hulser (profile) says:

Re: Re: Re: No Worries

you’ll note that that was not what was said, and, in fact, what was said does not even imply a belief one way or another on that matter

I beg to differ. The tone of Mr Rhodes’ post most certainly does imply a belief that the US is somehow unique in this regard. The point of my post was to highlight the double standard which is applied to the US. If there was some way to tell the percentage of “trumped up charges” there were around the world, I think that you’d find that the US would be nearer the bottom of the list. China? Iran? North Korea? Myanmar?

For the record, I think that any case where a law is applied incorrectly for political purposes is wrong, no matter if it’s the US or someone else.

justbiteme (profile) says:

Re: No Worries

Freedom of speech is fine and Constitutionally Protected, but when someone dies or ends up in a court room all bets are off. Assange has this “I’ve got to expose everything” attitude, at times that’s good, but be realistic, there are some things we as the “Private Citizens” are better off not knowing. When someone exposes something countries use for National Defense and Security, your bound to P.O. someone. Well, Assange did that “He P.O.’d America” and now it’s time to pay for his crime. Assange and his idealistic groupies all need to be apprehended and tried and punished for TREASON. If you don’t like what I wrote “just bite me”.

Pixelation says:

While I question the necessity of releasing some of the information, such as what the US considers important for security, I don’t question the right of Wikileaks to release it. I would guess there are foreign governments that had most of this information anyway.
If the US prosecutes Assange I certainly hope they fail. The Press need to rip the attacks on him/ Wikileaks apart.

Anonymous Coward says:

What has been described above is not really even relevant.

The real issue is The U S Deceleration of Independence and other countries Decelerations of Independence.
http://en.wikipedia.org/wiki/United_States_Declaration_of_Independence
http://en.wikipedia.org/wiki/Declaration_of_independence

All of the documents are based on the idea that the group declaring independence is not subject to the original countries any longer.

There is a corollary to the above belief and that is if the group declaring independence is not subject to the home country’s rule any longer then the home country is not subject to the rules of the group declaring independence.

That means that not only did UK law not apply to the US after independence but that US law did not apply to the UK and that citizens of the US were no longer represented in the British Parliament. Too often the latter portion of that declaration is forgotten.

This changes the question entirely. How can the US try a foreign news paper with treason with out becoming an imperial power? Where violation of US law by non US citizens outside the US is considered o crime in the US.

Worse than that if the US can declare a non US citizen a criminal for actions outside the US then the foreign powers can declare US citizens in violation of their laws for actions guaranteed by the US Constitution in the US.

To put this is prospective assume that the USSR (as a nitrous bad opponent of the US) declared that the US President violated their laws, captured same, and imprisoned him for 20 years. That is what the US did to the President of Panama. The US would sent in the marines. Panama being smaller did not have that right. Credibility of might equals right. And that is where this is headed.

Mike Masnick (profile) says:

Re: Re:

The real issue is The U S Deceleration of Independence and other countries Decelerations of Independence.

I just wanted to say that “Deceleration of Independence” would make a great band name.

But, since I assume you’re talking about the Declaration of Independence, um, that’s meaningless here. That has nothing to do with treaties concerning extradition or respecting one anothers’ laws.

Tor (profile) says:

“The report also delves into the hurdles to having Assange extradited to the US (something the US is apparently already discussing with the Swedish government)”

For what it’s worth the swedish minister of foreign affairs has officially denied (article is in Swedish) any such discussions pointing out that “we have an independent judical system that acts on its own accord in accordance with the law and does not have contacts with swedish political instances”.

Now it’s of course difficult to know whether that’s true or not, but I would venture to guess that the political price of being exposed having such discussions would be quite high since I think the public support for Wikileaks is strong in Sweden and the government has recently tried hard to not upset the public opinion in issues regarding the right to personal privacy and transparency, ever since the public outcry after the wiretapping laws it was responsible for two years ago.

Tor (profile) says:

Re: Re: Re:

Why would the judicial branch of the Swedish government be aware of discussions between the executive branches of the US and Swedish government?

I strongly doubt that unless it would be information used as evidence in a trial, but I’m not a lawyer or anything so it’s only based on my understanding of it.

If the government finds it obvious that there is not enough reason to grant an extradiction request it can deny it immediately. If it doesn’t the case it tried by the supreme court. Even if the supreme court would not find any legal reasons to deny an extradiction the government may still (after the trial) deny extradiction. According to the Swedish Government’s page about extradiction “Extradition is permitted, provided that the act for which extradition is requested is equivalent to a crime that is punishable under Swedish law by imprisonment for at least one year.”

hmm says:

well we know

Well since we now know the US government happily sells children as sex slaves (apparently its OK as long as it doesn’t happen to register US citizens!) I think we can’t trust them on basically anything.

I wouldn’t put it past them given the current info to arrange for Assange to have “an accident” during transfer to sweden. (Planes crash every day).

Then they can trot out the fake regret that he won’t face (non-existant) charges via the US………..

Hulser (profile) says:

Re: well we know

Well since we now know the US government happily sells children as sex slaves

We do? When making such a grave accusation, it’s helpful to not assume that people know what you’re talking about and provide some kind of support for your position. (And please don’t tell me to just google it. You’re making the accusation; it’s up to you to support it. I may find a million hits on a search, but I don’t know which one justfies your specific accusation without you saying which one.)

Anonymous Coward says:

Re: Re: well we know

http://wikileaks.ch/cable/2009/06/09KABUL1651.html

http://www.guardian.co.uk/world/2010/dec/02/foreign-contractors-hired-dancing-boys

http://www.chicagotribune.com/chi-0512270176dec27,0,6797771.story

“Bush declared zero tolerance for involvement in human trafficking by federal employees and contractors in a National Security Presidential Directive he signed in December 2002 after media reports detailing the alleged involvement of DynCorp employees in buying women and girls as sex slaves in Bosnia during the U.S. military’s deployment there in the late 1990s.”

Ten years later and Dyncorp are still doing it. Seriously, Americans, why do you still vote for the same bunch of criminals?

Anonymous Coward says:

There are a few issues here. Assange is very likely to be charged not with stealing the secret documents directly, but rather a “conspiracy to obtain through theft” or similar. In simple terms, while Assange didn’t steal the documents directly (someone else did, I think he was arrested already), Assange is key to the process, because they guy would not have stolen the documents without having an outlet for them.

Considering that Wikileaks is one of those organizations where money just sort of disappears (very little tracking or responsilbity, considering that many donations were not made to them directly), there may also be a money trail in the game here. We don’t have all the evidence at hand.

Let’s just say the research people appear to have jumped the gun, and more than little.

Dark Helmet (profile) says:

Re: Re: Re:

“Ellsberg wouldn’t have stolen the Pentagon Papers if the New York Times wouldn’t publish have been willing to provide “an outlet for them”. NYT was key to the process.”

And he’s even more wrong than that, since apparently the original leaker tried to get them out to main stream press before going to Wikileaks.

In other words, try again….

Anonymous Coward says:

I’m very disturbed that they are talking about “outweighing” first amendment priciples. It shows how corrupt our courts really are. The line is “Shall make no law”. There is no “outweighing” unless you think the constitution is toilet paper (which is what the vast majority of judges and politicians appear to think)

Christopher Weigel (profile) says:

Re: Re:

So apparently you have no problem with me doing the following?

1) Making statements to the effect that you enjoy conjugal visits with local livestock
2) Walking into the local airport and yelling “I’ve got a bomb!” (not actually having a bomb, just claiming to have one)
3) Inciting riots
4) Shouting “Fire!” in a crowded building
5) Telling you, in highly graphic terms, that I am going to kill you
6) Blackmailing you with, say, an affair I claim to have seen you having (regardless of the truth of the statement)

All of these, by the mindset your statement seems to be espousing, are free speech (at least insofar as they are actions that can be completed using speech alone). And yet all have been declared to be against the law, in the greater interests of society as a whole.

That’s the key – Certain types of speech are and can be restricted if doing so is in the interest of the citizenry as a whole. Without the ability to do so, I think “Anarchy” is the best way to describe the result.

Anonymous Coward says:

Re: Re: Re:

4) Shouting “Fire!” in a crowded building

Schenck was decided wrongly. The decision is a disgrace to America. I would say that it ought to be overruled.

Would say… Despite Scalia’s opinion as recently as R.A.V. v. St. Paul (1992) ?which cited Schenck? there seems little doubt that Schenck would be decided differently today. The case probably wouldn’t even reach the Supreme Court. An honest and faithful prosecutor wouldn’t even charge Charles Shenck ?today.

Abrams got a dissent from Holmes back in 1919.

Sean T Henry (profile) says:

Re: Re: Re:

My response to the following.

1) Making statements to the effect that you enjoy conjugal visits with local livestock
*But I love it when I make your mom squeel.

2) Walking into the local airport and yelling “I’ve got a bomb!” (not actually having a bomb, just claiming to have one)
*great reason to get your ass kicked

3) Inciting riots
*they put on a great show

4) Shouting “Fire!” in a crowded building
*thanks for letting us know since the alarms did not work

5) Telling you, in highly graphic terms, that I am going to kill you
*bring it

6) Blackmailing you with, say, an affair I claim to have seen you having (regardless of the truth of the statement)
*show me the proof and I will let you keep your balls.

kafantaris (profile) says:

Worldwide Payment Systems are no one?s Tools to Shape Foreign Policy.

“PAYMENT SYSTEMS ARE THE HEARTBEAT OF ALL COMMERCE AND NO ONE SHOULD EVER INTERFERE WITH THEM.”
======================
The State Department should not have pressured Amazon, Paypal, Visa, and Mastercard to turn away WikiLeaks. Aside from the futility of such a move (the cat is now out of the bag), it significantly affects everyday businesses around the world which rely on established ways to get paid. The last thing they need during this holiday season is to be embroiled in politics.
As things stand now, those offended by Paypal might not use it, or its partner ebay. Those offended by Amazon, might not order the kindle. Those offended by Visa and Mastercard might use cash or checks. Worse, they may not buy much for Christmas – – even forego that planed trip, or dinner at that nice new restaurant.
And all for naught.
To be sure, the State Department is recoiling from its decision. Yet, in fear of losing face, it is paralyzed and not likely to change course. It has, however, put away the club, and as such Amazon, Paypal, Visa and Mastercard should quickly reverse course.
And the State Department might be the first to be relieved from such open defiance.

ignorant_s says:

Intent

The government lacks sufficient proof of an intent element to prosecute Assange under the Espionage Act to overcome the First Amendment protections for the publication of unlawfully obtained information. It would be a bad precedent to set.

Assange was selective in his releasing of the information, and he and his partners considered each document released to “reduce the risk to individuals” in light of the US’s letter informing him that such a release could put people at risk.

Rather, our legislators and law enforcement officers will rely on the corporations they serve to restrain Assange and Wikileaks, because they are constrained by the Constitution in their ability to silence them. Again, this is exactly what they fear, the lack of an ability to restrain, because it may ultimately serve to diminish their power. We now have the information we need to make an informed decision as to how we chose to be governed and who we are governed by. Assange is reinforcing our civil rights from abroad.

Hulser (profile) says:

Investigation?

The US Justice Department keeps on saying that they’re investigating whether they’re going to charge Assange. Could it be any more apparent that they’re not investigating anything, but just poring all of the existing laws to see if they can’t find anything they can use to prosecute him? That’s not investigation. You investigate facts, not pretense. What facts would they be investigating? All of the relevent facts are surely already known.

Hulser (profile) says:

Re: Re:

@hulser

FYI: TechDirt has a Reply feature that will associate your comment to the associated post thus grouping all related posts together.

probably this
http://www.techdirt.com/articles/20101208/00221812176/so-wikileaks-is-evil-releasing-documents -dyncorp-gets-pass-pimping-young-boys-to-afghan-cops.shtml

Not to downplay the gravity of the allegations or the point Mike was trying to make, but even if you take all of the suspected activities as true, it’s a far cry from “the US government happily sells children as sex slaves”. With a crime this heinous, you don’t need hyperbole.

FMHilton (profile) says:

From what I can tell, Assange did not steal the documents, instead he was given them by other parties. Where does the espionage part fall here? He was not the person who took them-he merely received them.
That Wikileaks offered the documents to other parties (the NY Times) for publication, and yet nobody can try the NY Times for publishing them, due to the famous “Pentagon Papers” case law that established their right to do so.
Lastly, I know our government has illegally kidnapped and jailed innocent foreign nationals on false pretenses, so that they would even be considering doing this is not a surprise. That they’re considering legal methods to do it with is rather surprising. Normally, they just go grab someone and have it done. No fuss, no muss, unless the prisoner actually gets to court.
Unfortunately, our courts have upheld the right of the CIA to use rendition as a perfect way to jail someone under the filmiest of excuses.
It’s time the State Department and the government just drop the ruckus and just go away. This doesn’t serve any purpose except to make Wikileaks even more famous and in demand. Assange can be replaced there-and I’m sure they’re not working in a vacuum without him.

Anonymous Coward says:

Re: Pentagon Papers

yet nobody can try the NY Times for publishing them, due to the famous “Pentagon Papers” case…

Dude,

Please ?at the very least? read the Supreme Court’s opinion in the Pentagon Papers case: NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971).

It’s a significant piece of American history. Great school board only knows why you weren’t forced to read the opinion in your high school civics class…

The Pentagon Papers case only decided the issue of ?prior restraint?.

In the Pentagon Papers case, the court struck down a preliminary injunction which had barred publication. And even that decison was fairly narrow. The decison left open the possibility that some prior restraints might be justifiable on national security grounds (as Near had suggested).

That’s all the case really stands for.

FMHilton (profile) says:

From what I can tell, Assange did not steal the documents, instead he was given them by other parties. Where does the espionage part fall here? He was not the person who took them-he merely received them.
That Wikileaks offered the documents to other parties (the NY Times) for publication, and yet nobody can try the NY Times for publishing them, due to the famous “Pentagon Papers” case law that established their right to do so.
Lastly, I know our government has illegally kidnapped and jailed innocent foreign nationals on false pretenses, so that they would even be considering doing this is not a surprise. That they’re considering legal methods to do it with is rather surprising. Normally, they just go grab someone and have it done. No fuss, no muss, unless the prisoner actually gets to court.
Unfortunately, our courts have upheld the right of the CIA to use rendition as a perfect way to jail someone under the filmiest of excuses.
It’s time the State Department and the government just drop the ruckus and just go away. This doesn’t serve any purpose except to make Wikileaks even more famous and in demand. Assange can be replaced there-and I’m sure they’re not working in a vacuum without him.

AJ says:

I don't get it....

I really don’t understand how we are going to prosecute someone that is not American, was not on U.S. soil when commiting the act, and arguably didn’t actually break any current U.S. laws.

Is this not setting a very bad example? Isn’t this exactly the opposite of how were telling the Iran’s and North Korea’s of the world to act?

I could see North Korea or Iran declaring one of our politicians a criminal and sending out kill/capture squads, and when we protested, what would we say? If it’s the U.S. it’s ok, but you can’t do that? Are we really that arrogant?

TeleTips Network (profile) says:

tough to convict, but easily detained

Although the research cited by the articles details how difficult it will be to convict Mr. Assange, a conviction need not necessarily be the desired outcome.

By simply charging him and successfully extraditing him to the US, he may be held incommunicado for a painfully long time. Just ask any of the inmates still held at Guantanamo.

A conviction is not necessary to establish a powerful deterrent to future whistle-blowers and publishers. The chilling effect on free speech is the desired outcome.

Anonymous Coward says:

Trial?

What trial? They don’t need any laws or trials or anything like that. They can just pick him up and throw him in Gitmo for the rest of his life.

Or, if that’s not good enough, a federal court ruled recently that the President can order anybody, including even US citizens, assassinated by the military and there’s nothing anyone, even the courts, can do about it.

So what’s all this worry about the difficulty of prosecuting Assange in court?

G Thompson (profile) says:

What struck me as interesting about this CRS report wasn’t the report itself (though it was fascinating reading) it was that CRS was unable to meaningfully analyse for Congress (the significance of the newest releases because of a self-defeating security policy that prohibited CRS access to the leaked documents.

Blocking Access to Wikileaks May Harm CRS, Analysts Say

I think this quote says it all ‘In fact, if CRS is ?Congress?s brain,? then the new access restrictions could mean a partial lobotomy.’

I could be horrible here and say that since the US congress acts like it has half a lobotomy already, this must mean that it was brainless at the time… but I wont 😉

Darryl says:

speculative and incidental - - not if you see what he has released..

potential damage must be more than merely speculative and incidental. On the other hand, the Court has stated that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.”

He released a list of names of actives agents in the field, working in Afgainistan. that list will of no double been seen by Al Quada, or some sympathetic group, and those people who’s names where publised, by wikileaks.

Are at substantial risk, its also easy to argue, that he is “providing aid, and support to the enemy”.

Releasing names of active agents, or people just working with the US, is far more that “speculative and incidental”.

All that now has to happen is that one of those people Wikileaks listed, will turn up dead, and what do you think will happen then ?

Do you think those people listed, think that it was “speculative and incidental” that they got a bullet through the head ? (if they are lucky)..

What about the soldier who leaked the documents to Assange, where is he now Mike ??? what conditions is he living under ? can you tell everyone ? or is that a bit embarrasing..

You dont think that young soldiers life is new officially SCREWED ? he got a destroyed life, and assange gets a million dollars a year for his ‘act’..

there are any number of laws and statues that the US could use to get him back to the states, and to answer for his acts..

But NO, he does not have the guts to stand by his convictions, he will run and hide, He might even decide it is better to do some time for rape, than to face the music in the US :).

He is avoiding the US like the plague, yet he hides behind US laws, and the US constitution to justify his actions..

He cant have it both ways, he will get his cumupence, dont you worry about that :).. its just a matter of time.. you dont burn a heap of world leaders, but peoples lives at risk and live a happy retirement..

lets see, if im right or wrong,, Any bets ?? I’ll give you odds 🙂

He only has himself to blame, he could of possibly got away with it, until he released that list of names.

He even worked out he screwed up big time, and censored the list, ‘redacted’, it.. but as you well know, its too late once its released..

that is how downfall.. that makes him a terrorist.. that means all sorts of anti-terror laws, you’re Pres Bush gave you are all applicable….

Darryl says:

Mike, Good legal advice, im sure it will 'get him off'.. :)

50 U.S.C 421 provides for the protection of information concerning the identity of convert intelligence agents.
It generally covers persons authorized to know the identity of such agents, but can also apply to a person who learns of the identity of a covert agent through a “pattern of activities intended to identify and expose convert agents” and discloses the identity to any individual not authorized asses to classified information, with the reason to believe that such activities would impair U.S foreign intelligence efforts.

This crime is subject to a fine or imprisonment for a term of not more than three years.

To be convinced, a violator must have knowledge that the information identifies a convert agent whose identity the United States is taking affirmative measures to conceal.

So if you publish a list of names specifically intended to

identify and expose convert agents..

And when you publish a list of 100 active, covert agents, you DO identify then AND you EXPOSE them..
And you get 3 years in prison for each instance, 100 names, 300 years Give or take..

How would you go about building an argument, that would explain to a court, how assange did not intensionally identify and expose that agents, that you know he exposed and named ??

What would you explain to the jury,,, or would you claim he has first amendment rights, even though he is not a US citizen, and he is not in the US ?

That would make him an enemy combatant, and you know where they go,, dont you ?? think waterboarding, and posing naked for guard dogs !!!..

DodgyBob says:

I, for one, would be happier if the US government were expending the same effort in bringing to justice that US company which prostituted small boys in Afghanistan, and the state department officials that tried to cover it up (along with a bucketload of other possible violations committed by US citizens). Beside that, Assange’s supposed crimes pale into insignificance.

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