FacebookTwitterGoogle+RedditEmail

Invoking the Espionage Act Against Assange

by JENNIFER VAN BERGEN

There have been some suggestions in the press that Wikileaks founder could and should be prosecuted under the Espionage Act. While this law has been on the books for almost 100 years and no court has ever declared any part of it unconstitutional, either facially or as applied, it is a troubling law that falls into the same category as the material support of terrorism laws, conspiracy law, and RICO — all prosecutorial favorites because they are far easier to obtain convictions with than other kinds of laws.

These laws are all troubling for similar reasons. They criminalize behavior that could as easily be viewed as First Amendment-protected behavior: speech, association, and freedom of the press.

There are rumors that the Department of Justice has been trying to press Bradley Manning to testify that Wikileaks founder, Julian Assange, conspired with him to release tens of thousands of Iraq war-related doucments and U.S. Department of State cables via Wikileaks.

Conspiracy law has a long history and is a powerful prosecutorial tool that has troubled many lawyers and judges. A conspiracy is an agreement, express or implied, to commit a crime. Under federal law, there must be an overt act for someone to be convicted as a co-conspirator, but the accused need not have participated in the crime itself; he needs only to have agreed to participate.

Judge Learned Hand once described conspiracy as the “darling of the modern prosecutor’s nursery. (Harrison v. U.S. (2d Cir., 1925)). More recently, a legal scholar noted: “The difficulty in demonstrating an agreement [in conspiracy] has proven to be the prosecutor’s greatest advantage because ‘in their zeal to emphasize that the agreement need not be proved directly, the courts sometimes neglect to say that it need be proved at all.'” (Joshua Dressler, Understanding Criminal Law (1995), p. 398, quoting “Developments in the Law – Criminal Conspiracy,” vol. 72, Harvard Law Review, p. 933 (1959)).

Conspiracy laws “have frequently been used to deter the exercise of various civil rights and civil liberties, such as freedom of association and freedom of speech, as in many of the World War I espionage prosecutions.” (Jethro Lieberman, A Practical Companion to the Constitution (1999), p. 117.) According to this commentator, had conspiracy “been invented in the twentieth century, the courts might well have voided it for violating due process. But because of its ancient lineage and because it has proved so powerful a device for securing convictions in criminal cases, the courts have consistently refused to find a constitutional flaw in its central feature.”

Conspiracy law rides the narrow edge of legal legitimacy. When it is combined with other constitutionally suspect laws, concerns increase about the constitutional and moral legitimacy of the prosecution. Legally illegitimate prosecutions undermine the rule of law and the legitimacy of the DOJ, and consequently of the Executive. Initially, Attorney General Eric Holder was said to be looking to prosecute Assange under the Espionage Act. More recently, he signaled that his office was looking at other statutes.

Section (c) of the Espionage Act (18 U.S.C. ? 793) makes it a felony punishable for up to 10 years when a person “receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document” … “respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.” Conspiracy to engage in any action found to violate the Act receives the same punishment.

The Espionage Act has a long, troubling history. It has been used all too often to quell speech and association of political undesirables, which has raised repeated doubts of its constitutionality, but it has never been found unconstitutional. The landmark case of Schenk v. U.S. (1919) was an Espionage Act case where the so-called “clear and present danger” test was articulated. That test was modified some 50 years later in Brandenburg v. Ohio (1969) to the “imminent lawless action” test. Other cases (namely, New York Times Co. v. United States, and United States v. The Progressive, Inc.) have raised doubts about the Act’s constitutionality, but it remains on the books, still and once again raising the specter of illegitimate prosecutions to the discredit of the DOJ and the Executive. Recently, the Electronic Frontier Foundation (EFF) noted they “agree with other legal commentators who have warned that a prosecution of Assange, much less of other readers or publishers of the cables, would face serious First Amendment hurdles, and would be “extremely dangerous” to free speech rights.” (EFF links to a report by the Congressional Research Service which is important reading for anyone interested in understanding these laws.)

In addition to the specter of constitutionally problematic laws and illegitimate prosecutions, one must ask, as a preliminary question, why the DOJ must search for a law with which to prosecute Assange. Why is our government openly admitting to trying to find a law under which to prosecute someone they disfavor? Isn’t there something wrong with that picture? Isn’t it supposed to be the other way around? The government is supposed to use the laws to prosecute those who have broken them, not sua sponte (spontaneously, of their own accord) come up with something to fit an act of which they don’t approve. On that note, why is Congress considering passing a new law so prosecutors can go after publishers? Doesn’t the Constitution (Art. 1, para. 10) prohibit ex post facto laws – laws passed after the occurrence of a fact or commission of an act which retrospectively change the legal consequences of such facts or acts? We’re not supposed to go around punishing people for things that aren’t legally prohibited. And wouldn’t prosecuting publishers be a horrendous invasion of the First Amendment freedom of the press?

In June of this year, the Supreme Court made a ruling which should give us pause when we consider the Wikileaks situation. The court ruled that a law which prohibits providing “material support” to foreign terrorist organizations was constitutional, even where the “support” was peace training. The court ruled that “even well-intentioned aid to terrorist organizations is likely to backfire.”

It has been one of our founding principles that intent matters when it comes to criminal liability. Now suddenly the Supreme Court is saying intent doesn’t matter. If that is the case, any of us could be brought up on charges of terrorism or espionage. Increasingly in the past ten years, bad new laws have been promulgated and bad old laws have been dusted off and used to prosecute more and more people for legitimate speech and association. This is why we have a Constitution. We should look to it.

JENNIFER VAN BERGEN, J.D., M.S.I.E., is the founder of the 12th Generation Institute, and author of THE TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage Press, 2004) and Archetypes for Writers: Using the Power of Your Subconscious (Michael Weise Productions, 2007). She is currently working under contract with Bucknell University Press on a biography of Leonora Sansay, an early American novelist who was involved in the Aaron Burr Conspiracy, and on a screenplay about the conspiracy. She can be reached at jennifer.vanbergen@gmail.com.

 

 

 

More articles by:

CounterPunch Magazine

minimag-edit

August 31, 2016
NEVE GORDON - NICOLA PERUGINI
Human Shields as Preemptive Legal Defense for Killing Civilians
Jim Kavanagh
Turkey Invades Syria, America Spins The Bottle
Dave Lindorff
Ukraine and the Dumbed-Down New York Times Columnist
Pepe Escobar
Brazil’s Dilma Rousseff, a Woman of Honor, Confronts Senate of Scoundrels
Jeff Mackler
Playing the Lesser Evil Game to the Hilt
Steve Horn
Dakota Access Pipeline Tribal Liaison Formerly Worked For Agency Issuing Permit
Patrick Cockburn
Has Turkey Overplayed Its Hand in Syria?
John Chuckman
Why Hillary is the Perfect Person to Secure Obama’s Legacy
Manuel E. Yepe
The New Cold War Between the US and China
Stephen Cooper
Ending California’s Machinery of Death
Stacy Keltner - Ashley McFarland
Women, Party Politics, and the Power of the Naked Body
Hiroyuki Hamada - Ikuko Isa
A Letter from Takae, Okinawa
Aidan O'Brien
How Did Syria and the Rest Do in the Olympics?
David Swanson
Arms Dealing Is Subject of Hollywood Comedy
Jesse Jackson
The Politics of Bigotry: Trump and the Black Voter
August 30, 2016
Russell Mokhiber
Matt Funiciello and the Giant Sucking Sound Coming Off Lake Champlain
Mike Whitney
Three Cheers for Kaepernick: Is Sitting During the National Anthem an Acceptable Form of Protest?
Alice Bach
Sorrow and Grace in Palestine
Sam Husseini
Why We Should All Remain Seated: the Anti-Muslim Origins of “The Star-Spangled Banner”
Richard Moser
Transformative Movement Culture and the Inside/Outside Strategy: Do We Want to Win the Argument or Build the Movement?
Nozomi Hayase
Pathology, Incorporated: the Facade of American Democracy
David Swanson
Fredric Jameson’s War Machine
Jan Oberg
How Did the West Survive a Much Stronger Soviet Union and Warsaw Pact?
Linda Gunter
The Racism of the Nagasaki and Hiroshima Bombings
Dmitry Kovalevich
In Ukraine: Independence From the People
Omar Kassem
Turkey Breaks Out in Jarablus as Fear and Loathing Grip Europe
George Wuerthner
A Birthday Gift to the National Parks: the Maine Woods National Monument
Logan Glitterbomb
Indigenous Property Rights and the Dakota Access Pipeline
National Lawyers Guild
Solidarity with Standing Rock Sioux Tribe against Dakota Access Pipeline
Paul Messersmith-Glavin
100 in Anarchist Years
August 29, 2016
Eric Draitser
Hillary and the Clinton Foundation: Exemplars of America’s Political Rot
Patrick Timmons
Dildos on Campus, Gun in the Library: the New York Times and the Texas Gun War
Jack Rasmus
Bernie Sanders ‘OR’ Revolution: a Statement or a Question?
Richard Moser
Strategic Choreography and Inside/Outside Organizers
Nigel Clarke
President Obama’s “Now Watch This Drive” Moment
Robert Fisk
Iraq’s Willing Executioners
Wahid Azal
The Banality of Evil and the Ivory Tower Masterminds of the 1953 Coup d’Etat in Iran
Farzana Versey
Romancing the Activist
Frances Madeson
Meet the Geronimos: Apache Leader’s Descendants Talk About Living With the Legacy
Nauman Sadiq
The War on Terror and the Carter Doctrine
Lawrence Wittner
Does the Democratic Party Have a Progressive Platform–and Does It Matter?
Marjorie Cohn
Death to the Death Penalty in California
Winslow Myers
Asking the Right Questions
Rivera Sun
The Sane Candidate: Which Representatives Will End the Endless Wars?
Linn Washington Jr.
Philadelphia District Attorney Hammered for Hypocrisy
FacebookTwitterGoogle+RedditEmail