Publishing official documents that may put lives at risk is possibly a crime in Britain. But it is not a crime in the United States, especially not during a period when war has not been declared by Congress.
Hence, federal prosecution claims that Julian Assange put lives at risk are irrelevant as a matter of U.S. Constitutional law. In addition, the press in virtually every free country puts the lives of unconvicted (hence innocent) suspects and victims at risk by publishing details that might be used by malevolent persons. Such is the price of press freedom.
There is on the books a law that makes it a crime to publicly expose the name of a covert CIA or U.S. intelligence operative. But, there must have been a deliberate decision to do so. If a CIA operative's name is disclosed amid a cache of documents, it is difficult to say that someone made a specific decision to unmask that operative. In addition, the law's constitutionality is highly suspect.
The First Amendment reads,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.Congress made the CIA law abridging speech and press after Philip Agee, a former CIA employee, wrote a book that exposed a CIA officer's name. That officer was murdered subsequent to publication and it was assumed that Agee's book was the primary cause, though a moment's thought about the subtleties and chicaneries of the intelligence underworld should cast at least some doubt on that assumption.
Assange's superseding indictment (the first one laughably claimed he was a terrorist) cites federal statute 18:793 of the Espionage Act, which begins, "(a) Whoever, for the purpose of obtaining information 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..."
What exactly does "intent or reason to believe" that the information will bring "injury" to the United States or give "advantage" to a foreign nation mean? In the case of a spy passing information to an enemy government during wartime, there is little ambiguity. It's hard to say the same about a citizen journalist or public-spirited activist.
Even if "injury" occurred, how can one possibly assume that a citizen-journalist intended to harm anyone, even if it is said after the fact that some people were killed as a result of publication? A spy intends injury. Can that easily be said of a public-spirited publisher? The whole point of WikiLeaks was to restore democracy by letting the common people see what their governments do in the dark. Now, you may say that that is a foolish and irrational idea, but having a silly idea does not make a person evil. (In fact, the treatment of Assange can be fairly compared to the diabolical suppressions of free speech during the Dark Ages. Assange is the real witch hunt victim.)
In any event, in a political situation, "injury" and "advantage" tend to be in the minds of the beholders. Many citizens of the United States believe that their republic was strengthened by the WikiLeaks revelations. Just because public officials hold the opposite opinion does not make their opinion intrinsically valid. What nations gained advantages that could be easily defined and measured as a result of the disclosures? In fact, the diplomatic cable disclosures helped fuel the Arab Spring, kindling the hopes of many for democracy of the sort enjoyed in America and Britain.
The disclosure that got the most attention was that the United States military had suppressed evidence of an atrocity carried out in the heat of combat in Iraq. The journalist Seymour Hersh was hailed when he exposed the My Lai massacre by going onto U.S. military bases in order to begin collecting information that surely would injure the reputation of the United States during another undeclared war and that would benefit the Communists by bolstering their propaganda. Yet no one thought to use the Espionage Act against him. For one thing, injuring the reputation of the government was not sufficient reason to prosecute.
From the title of the video published by WikiLeaks, Collateral Murder, I have an opinion that Assange, like many a person who has never been in combat, did not comprehend the stress that men and women experience in a firefight. I felt that he had not been sufficiently compassionate toward the helicopter crew members, who doubtless suffered great remorse for many years after the event.
Yet, I did not blame Assange. His was a typical civilian response. And I certainly believed that the public had benefited from seeing what happens when presidents order the beginning of hostilities as if their own lives don't depend on it -- which they don't.
The most important point is that the Espionage Act statute leaves it to public officials to decide when a disclosure of the truth "injures" the United States. Further, the act permits prosecutors to read the minds of journalists and activists to discern whether they intended such injury. And, there is absolutely no doubt that the act, especially when applied to journalists and citizens who are not clearly working as enemy spies, is in direct collision with the First Amendment, which takes precedence. In spite of Mike Pompeo's bombastic claims, federal prosecutors have never alleged that Assange is a witting spy for the Kremlin or any other government.
So there is no basis for a U.S. prosecution -- which is why Chelsea Manning is being held by federal prosecutors in a federal pen. The feds are trying to force her to talk: to turn against Assange and say something incriminating. Except for a brief period of release, Manning has been held for about a year, a draconian maneuver that discloses the desperation of prosecutors to turn Manning so that they can get a real criminal case against Assange. If prosecutors were confident of their current case, they would almost certainly have freed Manning months ago.
Prosecution claims that Assange is disqualified from First Amendment protection because he is not a U.S. citizen are disingenuous. The amendment says "no law" can abridge free speech and press. It says nothing about citizenship. By the prosecution's reasoning, it would be fair to say that, because Assange is not a U.S. citizen, the Espionage Act does not apply to him.
Time to end the witch hunts and restore democracy both in Britain and America.
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