There's been lots of talk about US authorities prosecuting Julian Assange of WikiLeaks, but it has posed a big question: Assange did all his leaking while remaining outside of the United States, so is it constitutional to extend America's criminal laws to activities beyond its shores?Charging Julian Assange could be unconstitutional
The due process clause rules out prosecuting WikiLeaks' founder – a non-US citizen – for extraterritorial offences
It's well established that the due process clause places limits on such sweeping assertions of power. For example, when foreign monopolies manipulate prices overseas, it's not enough to show that they have hurt American consumers. Courts insist on evidence that they had fair notice that American anti-trust laws would govern their activity.
Up to now, these constitutional requirements have been developed most elaborately in anti-trust and other areas, which involve civil damages, not criminal punishment. But due process is even more important in criminal procedure, where the Constitution has always held America to more demanding standards.
This basic point has been missed because cases like WikiLeaks are relative novelties. During the first two centuries of the American republic, the justice department only prosecuted extraterritorially for crimes involving recognition that American law was in play – offences that involved direct dealing with the American government or crimes like piracy that were universally condemned by all nations. It was only in the 1980s, and especially since 11 September 2001, that the United States has increasingly used the criminal law as a weapon abroad.
As a consequence, courts are only beginning to grapple with the fair notice problem. In 2003, for instance, the second circuit considered whether due process allowed the United States to prosecute Ramzi Yousef, a non-citizen, for hijacking a Phillippines airliner en route to Japan. The court allowed the proceeding to go forward: given that Yousef's hijacking was a test run for a similar attack he planned for the United States, he should have "reasonably anticipate[d] being haled into court in this country".
But, on the surface at least, Assange could not be charged under a similar rationale. He does not seem to be planning to enter the United States anytime soon. His actions undoubtedly damaged the interests of the United States, but this is true of countless foreigners who release information about America in foreign countries. Surely, it would be unconstitutional for American criminal law to threaten prosecution against every foreigner in the world who denounces the United States?
The Espionage Act of 1917 is the most frequently cited authority for a criminal prosecution. In its 90-year history, it has only once been used against a foreign citizen for an extraterritorial violation. That was in 1985. The case involved Alfred Zehe, who had transmitted classified information about US anti-submarine warfare to the East German government. In defending himself in court, Zehe did not raise any constitutional objections, and so the district judge did not consider them in convicting him. Since Zehe didn't appeal, no higher court has ever ruled on the crucial due process questions.
But that doesn't mean that the justice department should proceed as if the due process clause didn't exist. Unless it can uncover clear and convincing evidence that Assange could reasonably foresee liability under American law, it should not give way to the passions of the moment and launch a criminal prosecution.
http://www.guardian.co.uk/commentisfree/cifamerica/2010/dec/10/julian-assange-wikileaks?INTCMP=SRCH
Julian Assange cast as common enemy as US left and right unite
Growing clamour sees Republicans and Democrats demanding action against WikiLeaks founder
The outcry against Julian Assange, the founder of WikiLeaks, is intensifying in the US, drawing a rare degree of consensus from politicians and pundits who have collectively cast him in the role of a common enemy.
In the past few days the calls for action against Assange have grown steadily louder and more shrill, with leading Republicans labelling him a terrorist, and top liberal Democratic politicians, albeit in more moderate language, also calling for his prosecution.
The highly unusual bipartisan hounding of Assange has led some free speech campaigning groups to warn of a "chilling effect," in which the threats of legal action are already having an impact on the open spirit of the internet.
The most extreme attacks have come from prominent Republicans including Sarah Palin, who has likened Assange to an al-Qaida operative; Mitch McConnell, the Republican leader in the Senate, who called him a "hi-tech terrorist"; and Newt Gingrich, who called him an information terrorist and said he should be arrested as an "enemy combatant" .
Assange was also attacked by leading Democrats such as Dianne Feinstein, who said he should be charged under the US espionage act, and John Kerry, who has called for the law to be changed to allow a prosecution of the WikiLeaks website.
Gabriel Schoenfeld, a senior fellow at the Hudson Institute in Washington and author of Necessary Secrets, said the cross-party baying put the Obama administration in a difficult place. "There is a huge amount of pressure on them to do something about WikiLeaks."
This week Joe Lieberman, the independent senator who has long been an opponent of WikiLeaks, widened the net when he accused the New York Times of an "act of bad citizenship" by publishing versions of the US embassy cables and called on the justice department to hold a "very intensive inquiry" into whether the paper had committed a crime.
Schoenfeld and other experts on the US first amendment think it highly unlikely that a prosecution will be brought against the New York Times – no news outlet has ever been charged under the espionage act and the supreme court ruled out such an action against the same newspaper over the leak of the Pentagon Papers in 1971.
The Times is keeping its head down for the moment, saying only that "We believe that our decision to publish was responsible journalism, legal, and important to a democratic society". It has also published a long explanation of why it went ahead with the embassy leaks.
So far key Obama administration figures have adopted a more temperate tone than much of the swirling debate around them. Robert Gates, the defence secretary, has called the embassy cables "moderate" in their seriousness and said arguments that they had damaged national security were "fairly significantly overwrought".
The secretary of state, Hillary Clinton, has played a double game, threatening to take "aggressive steps" against disseminators of the cables while emphasising the positive worth of an open internet.
Eric Holder, the US attorney general, who will have the final decision on whether to prosecute, has said he will do everything he can to hold WikiLeaks accountable, but has not specified what that would mean.
"Whether or not new laws are passed to further curb freedom of speech, there is already a chilling effect," said Steve Rendall of the media watchdog Fair.
There is already evidence that some people who were willing to donate to WikiLeaks in support of the site's freedom of information work have now stopped doing so for fear of being arrested as terrorist funders .
Bloggers pointed out that if Feinstein's desire to wield the espionage act against WikiLeaks were followed through, it would have a powerful deadening effect on mainstream media outlets' efforts to report on national security matters.
However, some at the coal face of internet publishing say that they are unfazed by the current furore. John Young, whose website cryptome.org has published about 60,000 classified and non-classified documents over the past 14 years, believes the storm will pass.
"This is just typical arm-waving and yelling. If anything, this will just further wind people up to oppose authority and send in more documents."
http://www.guardian.co.uk/media/2010/dec/08/julian-assange-cast-enemy-us?INTCMP=SRCH
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