I posted this earlier.
----- Forwarded Message ----- From: jim bell To: CypherPunks Sent: Monday, May 6, 2019, 08:58:10 PM PDTSubject: Re: From the Assange indictment: Is there Extraterritoriality present in the Statutes the Indictment references?
https://learnoutlive.com/why-prosecuting-wikileaks-is-a-bad-joke/
[partial quote follows]
Neither Funny Nor Wise
Let me briefly dwell upon why the idea of U.S. Attorney General Eric Holder prosecuting Julian Assange of Wikileaks is a seriously flawed piece of fiction.
First, a couple of short facts out of the way.
- Julian Assange is a citizen of Australia.
- Wikileaks operates from Iceland.
- No one has accused Wikileaks itself of stealing the information.
- No one has explained how this is a crime prosecutable on foreign soil.
- No one has explained adequately how this falls under U.S. jurisdiction.
The Espionage Act for Dummies
The idea behind a prosecution is that the Espionage Act supposedly allows the U.S. government to prosecute people who, to use one example from The Washington Post,
“That language is not only the right thing to do policy-wise but puts the government in a position to prosecute him,” Smith said. Under the Espionage Act, anyone who has “unauthorized possession to information relating to the national defense” and has reason to believe it could harm the United States may be prosecuted if he publishes it or “willfully” retains it when the government has demanded its return, Smith said.
This all makes decent legal sense if applied to someone under the natural jurisdiction of the United States, like a citizen or a resident, or a foreign national on U.S. soil spilling secrets. However, none are the case here.
Thus, first, we have to get into the idea of extraterritorial criminal law, the idea that if evil is spawned beyond the U.S.’ borders, but that the effects occur within the U.S., that the crime is prosecutable and punishable within the U.S., provided, of course, the U.S. physically gets its hands on the person it deems responsible. (Example: Former Panama President Manuel Noriega.)
Second, there’s a little problem with this, namely, proving your case in court. The government’s extraterritorial powers (which were originally intended mainly to punish things like piracy, viewed uncontroversially as a crime against humanity for many centuries until the modern Somali pirate crisis broke that consensus) are still limited by the Constitution, namely, the right to due process. So, the government has to prove that harm was done to U.S. national security, and that would surely require the spilling of more secrets to prove that existing secrets harmed the nation.
Third, while the law itself has been upheld under the U.S. constitution, that does not mean that the First Amendment, guaranteeing freedom of speech, went away. This creates major complications.
It’s easy to prosecute according to the Espionage Act where a) the information is conveyed to a foreign power, not the public, and b) the information is a nature that is clearly related to military secrets and does obvious, self-evident harm to national security. (Take Jonathan Pollard’s efforts to get U.S. Navy communication decryption info to Israel, for which Israeli politicians are still trying to get him pardoned, without success.)
Conveying this information to China would make it clearly espionage. Conveying this information to the American Public muddles the issue considerably.
[end of partial quote]
Jim Bell
On Sunday, May 5, 2019, 10:22:02 AM PDT, jim bell wrote:
This essay, found by doing a google search for ' "assange" "extradition" "extraterritoriality" '
http://www5.austlii.edu.au/au/journals/MelbJIL/2012/5.html
(From 2012)
[partial quote follows]
"In a speech at Princeton University, Justice Michael Kirby discussed judicial reluctance to enforce assertions of extraterritorial jurisdiction[1] and in so doing, observed that: ‘the natural question is asked: Why my court? Why not theirs?’[2]The question points to the crossroads at which international law and domestic law meet: extraterritoriality. Assertions of extraterritorial jurisdiction are becoming increasingly frequent in the 21st century. Many states claim authority to project law beyond their own territorial borders[3] and, as Alejandro Chehtman observes: ‘extraterritoriality is deeply entrenched in the modern practice of legal punishment’.[4] The extent to which states can assert extraterritorial criminal jurisdiction is a pivotal issue, which sits at the ‘very heart of public international law’.[5]"
End of partial quote
Note: I haven't attempted to send a copy of the material I wrote, below, to Julian Assange or any attorney representing him. If any of you are in closer contact than I, I request that this material be sent to them.
Jim Bell
On Monday, April 29, 2019, 5:30:53 PM PDT, jim bell wrote:
From: https://www.justice.gov/opa/press-release/file/1153486/download
15(B) to intentionally access a computer, without authorization and exceeding authorizedaccess, to obtain information from a department and agency of the United States infurtherance of a criminal act in violation of the laws of the United States, that is, aviolation of Title 18, United States Code, Sections 641, 793(c), and 793(e).(In violation of Title 18, United States Code, Sections 371, 1030(a)(l), 1030(a)(2),1030(c)(2)(B)(ii).)
[end of partial quote]
There is a principle of American law, upheld by the Supreme Court, that a Federal law is only supposed to be considered of "extraterritorial" application (applies outside the boundaries of United States territory) if the Congress specifically intended that application, and was signified by including such language within the law itself.https://en.wikipedia.org/wiki/Extraterritorial_jurisdiction
×
"In Morrison v. National Australia Bank, 2010, the Supreme Court held that in interpreting a statute, the "presumption against extraterritoriality" is absolute unless the text of the statute explicitly says otherwise."
"https://www.skadden.com/insights/publications/2016/06/us-supreme-court-conti...
http://www.virginialawreview.org/volumes/content/rjr-nabisco-and-runaway-can...
From that:
"The Supreme Court threw out the lawsuit after invoking the presumption against extraterritoriality. That canon of statutory interpretation instructs judges to assume “that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”[8] In applying the presumption in RJR Nabisco, however, a majority of four Justices[9] rejected multiple indications that Congress intended RICO’s private right of action to extend abroad[10] while raising the bar on what Congress must do to make its extraterritorial expectations clear.[11]" [end of quote]
Understanding the presumption against extraterritoriality: https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1170&context=bjil
Very interesting: https://www.thefacultylounge.org/2019/04/some-thoughts-on-the-extradition-of...
From that:"THE RULE OF DUAL CRIMINALITY: Even if extradition is sought only under the computer intrusion indictment, it will still need to meet the test of dual criminality, found in Article 2, which provides that "An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States." Although computer hacking is no doubt also a crime in the U.K., there is a further wrinkle of territoriality, because Assange's alleged offense was committed outside the United States. Another section of Article 2 provides:If the offense has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstances. If the laws in the Requested State do not provide for the punishment of such conduct committed outside of its territory in similar circumstances, the executive authority of the Requested State, in its discretion, may grant extradition provided that all other requirements of this Treaty are met."
Unlike the U.S., however, Britain apparently takes a strict view of territorial jurisdiction. According to The New York Times, Britain has already denied a U.S. extradition request for computer intrusion, on the grounds that the offense was committed on British soil and would therefore have to be tried in the U.K.
[end of quote]
18 U.S.C. 641 does not appear to explicitly have an extraterritoriality reference. https://www.law.cornell.edu/uscode/text/18/641
18 U.S.C. 793(c), nor the whole 793, does not appear to explicitly have an extraterritoriality reference. https://www.law.cornell.edu/uscode/text/18/793
×
18 U.S.C. 371 does not appear to explicitly have an extraterritoriality reference. https://www.law.cornell.edu/uscode/text/18/371
18 U.S.C. 1030 does not appear to explicitly have an extraterritoriality reference. https://www.law.cornell.edu/uscode/text/18/1030
Jim Bell
