First Amendment authorized Julian Assange possession of Classified Data, April 19, 2023, Constitutional attorney Bruce Afran explains, Daniel Ellsberg precedent
First Amendment authorized Julian Assange possession of Classified Data, April 19, 2023, Constitutional attorney Bruce Afran explains, Daniel Ellsberg precedent
From Consortium News.
“1st Amendment Authorized Assange’s Possession of Classified Data
The Espionage Act, as it is applied to the WikiLeaks publisher or any other journalist, also violates basic norms of due process, argues Bruce Afran.
Last week marked four years of WikiLeaks publisher Julian Assange being held at Britain’s Belmarsh Prison while he awaits the outcome of his fight to block extradition to the United States.
While the U.S. government is also charging Assange with conspiracy to commit computer intrusion, the core of its case is that Assange violated the 1917 Espionage Act by “possessing” and releasing “defense” material that caused “injury” to the United States or gave “advantage” to other nations, a boundless and limitless standard that can turn virtually any journalist or blogger into a criminal defendant.
No other direction, definition or limitation appears in this law that is now being applied to Assange.
As the government uses it against Assange, the Espionage Act would criminalize any media organization that receives or publishes “defense information” that embarrasses the government. This unlimited grasp of the Espionage Act is awe-inspiring in its capacity to criminalize journalistic endeavors.
Faced with such limitless horizon for prosecution, it would be impossible for any journalist or internet publication to know when their writing will lead to prosecution, a legal posture that will chill or destroy virtually all sensitive journalism.
Assange is being prosecuted, at least in part, as retaliation for speech. The government charges that WikiLeaks published U.S. “rules of engagement” in Iraq but WikiLeaks says it released these only after the U.S. defended the “Collateral Murder” video by claiming the killings were within the laws of war and the rules of engagement.
All this was of intense public interest and well within the bounds of journalism. To use the undefined contours of the Espionage Act to prosecute Assange in this way certainly smacks of retaliation for protected First Amendment activity.
The Espionage Act’s unconstrained language allows precisely what it has been used historically to achieve: the prosecution of dissidents for speech.
The US Constitution & Assange
Assange’s case raises troubling questions about whether the Espionage Act breaches both the First and Fifth Amendments of the U.S. Constitution as it is applied to Assange.
An argument can be made that when Assange’s lawyers file a motion to dismiss the indictment the case should be thrown out on both grounds by District Judge Claude M. Hilton, who has been assigned Assange’s case in the Eastern District of Virginia.
In the most open-ended terms, the Espionage Act says any “person” with “unauthorized possession” of “information relating to the national defense…” that “could be used to the injury of the United States or to the advantage of any foreign nation…” is guilty of a crime.
All that is required to prosecute is that the defendant possesses defense information without authorization and/or “communicated, delivered or transmitted” such information to any other person — the very work of daily journalism.
But what does the Espionage Act mean by “unauthorized possession?” To any journalist the First Amendment itself is authority to possess and to publish.
What serious member of the press would not feel “authorized” under the First Amendment to publish defense information such as the “Collateral Murder” video as evidence of American war crimes? Nevertheless, they could face prosecution, as Assange does, under the Espionage Act.
In other words, it can be argued that the First Amendment, which prohibits the government from making any law “abridging the freedom of speech, or of the press” authorized Assange to possess and communicate the information leaked to him by Army intelligence analyst Chelsea Manning.
The Espionage Act unconstitutionally criminalizes that routine of journalism. It ignores that the First Amendment by itself carves out an exception for a journalist possessing and informing the public about state secrets that reveal government crimes and corruption.
The phrase “relating to the national defense” is also so broad that publication of any government document that exposes military abuses could lead to prosecution. Nor does any clearer meaning attach to “injury to the United States” or “advantage of any foreign nation,” standards that could lead to conviction for publication of any government document touching on military or foreign policy.
Assange’s indictment should be quashed on the ground that the Espionage Act’s breathtaking overreach is an existential threat to First Amendment freedoms. For U.S. courts to do otherwise is to undermine due process and impose a vast threat to the First Amendment’s guarantees of a free press.”
“Like Pentagon Papers whistleblower Daniel Ellsberg 40 years earlier, Assange has been the subject of illegal surveillance, according to testimony in Madrid against the founder of the Spanish company UC Global. The firm was hired by the C.I.A. to spy 24/7 on Assange inside the embassy, eventually in real time, according to the testimony.
The C.I.A. also planned to kidnap or assassinate Assange in the embassy, witnesses in the case said. Their testimony was read at Assange’s extradition hearing in London in September 2020. The C.I.A. plan was later confirmed by former U.S. officials in a Yahoo! News report in September 2021.
There is precedent for throwing out a case when evidence emerges of eavesdropping on privileged conversations between a client and a lawyer, as happened with Assange and his attorneys.
In 1973, facing an almost identical scenario, U.S. District Judge William Byrne dismissed all charges against Ellsberg and fellow whistleblower Anthony Russo because of the government’s admission of illegal surveillance, wiretapping and break-in of Ellsberg’s psychiatrist’s office.
Calling it an “an unprecedented series of actions” that “offend “a sense of justice,” Byrne said he was forced to dismiss all charges because the “conduct of the government has placed the case in such a posture that it precludes the fair dispassionate resolution of these issues by a jury.”
Placing Assange’s lawyers and other visitors under surveillance at a time when the government was considering criminal charges against Assange (or had already indicted him) is equally a breach of due process and offensive to a sense of justice.
That such surveillance took place abroad hardly mitigates the harm. As long as the government believed it could prosecute Assange, it was required to adhere to basic due process and a sense of fundamental fairness.
Whether Assange broke U.S. law is one thing, but the disregard of due process is never within the power of the government and should require dismissal of the case against Assange as it did Ellsberg and Russo four decades ago.’