On Monday, April 29, 2019, 5:48:01 PM PDT, Punk wrote: On Tue, 30 Apr 2019 00:30:53 +0000 (UTC) jim bell wrote:

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....

    Maybe study this as well

 >   https://www.youtube.com/watch?v=L6O6sM2Shok Well, the events of 9/11/2001 clearly occurred within the United States, with co-conspirators present.  Whether OBL, as alleged co-conspirator, would have been susceptible to prosecution, and where, is a different issue.   Differerent statutes, different locations, different actions.   In any case, it will be interesting to see how UK deals with these legal matters. I will copy more of: https://www.thefacultylounge.org/2019/04/some-thoughts-on-the-extradition-of... \ April 15, 2019 Some Observations on the Extradition of Julian Assange On April 11, the Ecuadorian government withdrew its grant of asylum to Julian Assange, who had spent almost seven years living in Ecuador's London embassy. Assange is now in British custody on the relatively minor charge of bail jumping, awaiting potential extradition to the U.S., or possibly Sweden. Extradition, however, is far from a foregone conclusion. The Swedish charges were dropped some years ago, and it is not obvious that they will be reinstated. And extradition to the U.S. will be complicated and questionable under the relevant treaty. Here are some of the considerations, in ascending order of difficulty. THE RULE OF SPECIALTY: As do most extradition treaties, Article 18 of the U.S./U.K. treaty provides that an individual may only be tried in the requesting country for the "offense for which extradition was granted, or a differently denominated offense based on the same facts." As far as is known, the only pending U.S. charge  against Assange is for conspiracy to hack into government computers, which led to the disclosure of documents stolen by Chelsea Manning. If Assange is successfully extradited under this indictment, he could not afterward be tried for other crimes such as the theft of emails from the Democratic National Committee, or the far more serious crime of espionage -- which would require proof of more than simply helping Manning break an encrypted passcode. This creates a dilemma for the Department of Justice, apparently in the face of a June deadline.  If the Department is not ready to unveil the extent of its evidence against Assange (if any), will it be willing to try him only for the relatively lesser offense of unlawful computer intrusion? 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. While it is true that the British government still has discretion to extradite Assange for an extraterritorial offense, that raises political considerations that may cut in favor of Assange. THE POLITICAL OFFENSE EXCEPTION: In keeping with longstanding international traditions, Article 4 provides that "Extradition shall not be granted if the offense for which extradition is requested is a political offense." This provision created considerable tension between the U.S. and the U.K. in 1992, when the Second Circuit invoked the political offense exception to deny an extradition request for an alleged Irish Republican Army bomber. The treaty was subsequently amended to limit the political offense exception to non-violent crimes (by creating exceptions to the exception covering potentially terror-related offenses such as murder, manslaughter, kidnapping, hostage taking, and the use of explosives). So is hacking into U.S government computers a "political" crime? The initial answer will be determined by the British courts, and eventually by the "competent authority of the Requested State," meaning the executive. According to Assange and his supporters, the mission of Wikileaks is to bring greater transparency to government, which certainly sounds political. Jeremy Corbyn, the head of the U.K.'s opposition Labour Party certainly agrees, having tweeted “The extradition of Julian Assange to the U.S. for exposing evidence of atrocities in Iraq and Afghanistan should be opposed by the British government.” Theresa May's Conservative government has been less committal, as seems appropriate at the outset of a judicial proceeding, but Home Secretary Sajid Javid had harsh words for Corbyn, “Whenever someone has a track record of undermining the U.K. and our allies, and the values we stand for, you can almost guarantee that the leadership of the party opposite will support those who intend to do us harm.” For now, let's just say that the political offense exception presents a significant barrier to extradition, which might become insurmountable if the Labour Party takes control of the U.K. government (elections are not scheduled until 2022, but the Brexit mess makes everything unpredictable).  The great irony is that Assange may have spent seven years under virtual house arrest for nothing. If Sweden does not renew its request, and if the political offense exception shields him from extradition to the U.S., then the most he would face is the British bail jumping charge, probably followed by deportation to his native Australia -- penalties much less extensive than the confinement he has already undertaken voluntarily. There are other issues in the Assange case, of course, including his likely First Amendment defense in the event that he is actually extradited to the U.S., and the broader question of press freedom should he be indicted for espionage. But let's leave those for another day. [NOTE: I wrote a series of articles on the political offense exception in the late '80s and early '90s, but I have been away from those issues for a long time. I therefore welcome clarifications, corrections, or additions to the above observations, especially from those more familiar with U.K. law.] [end of quote][Begin Jim Bell's further comments] There is also the issue of a sentence.   Generally, Federal criminal statutes contain a "maximum" sentence, usually an value of 5, 10, or 20 years.  However, that is somewhat archaic.  Actual sentencing is based on a Sentencing Table, see:  https://www.ussc.gov/guidelines/2018-guidelines-manual/2018-chapter-5If convicted, his sentence would be calculated based on a criminal history of "0", as I believe these guidelines do not consider foreign convictions, nor convictions more than 15 years ago, I seem to recall. .  This puts it on "Column I", on the "x" axis of the table.  The "Y" axis considers the "offense level", which is a somewhat complicated calculation involving multiple factors.  The following article describes the matter:   https://www.eff.org/deeplinks/2013/03/41-months-weev-understanding-how-sente... sounds good that the "Rule of Speciality" would likely apply.                Jim Bell

On Mon, Apr 29, 2019 at 09:47:51PM -0300, Punk wrote:

On Tue, 30 Apr 2019 00:30:53 +0000 (UTC) jim bell wrote:

...

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....

Maybe study this as well

https://www.youtube.com/watch?v=L6O6sM2Shok

Indeed - "'Justice', General, that's an interesting word to choose" Over here in the darkness called Australia, a land so far down under the sun shines for barely a week a year, we have this phenomenon you Yankees 'ave prolly never heard of before - Green Idiots. It's that bad, we have ... get this ... an entire political party that revolves around grandstanding, pointscoring, and pretending that the Earth is not greening faster than ever in the last couple thousand years (i.e. all of modern history) - they're called "the Greens". Some fink dey's a bit stoopid, and remind us why we vote for 'em in such large numbers: The Greens - why we vote for 'em http://www.youtube.com/watch?v=WH_MBwQhGgA Pretty sure you don't have anything like these upstandin' folks in the wonderful USA now?

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

I should mention that the term "extraterritoriality" has been employed in two entirely different ways in regards to Julian Assange. One had to do with the fact that Assange spent years in the embassy, though seemingly not within the legal jurisdiction of the U.K.That is NOT the relevant usage, here. The second had to do with the question of whether the American criminal statutes that Assange was being charged with have 'extraterritorial application':   Does American law purport to apply to actions taken by Assange while he was in U.K., and do they represent a chargeable violation of American criminal law. What I found, below,  is that the statutes that Assange was charged with (at that time, anyway) do not appear to have any extraterritorial clauses.  As I showed below, there is a strong presumption against extraterritoriality unless the statute explicitly says otherwise. Also, THIS time I forwarded this material to J. Robinson, a Barrister, based in London, U.K. https://www.doughtystreet.co.uk/barristers/jennifer-robinson                                Jim Bell On Sunday, September 1, 2019, 08:17:20 PM PDT, jim bell wrote: 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

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I posted this 15 months ago. On Mon, Sep 2, 2019 at 7:55 AM, jim bell wrote: This is a pointer to Assange's superseding indictment. https://www.justice.gov/opa/press-release/file/1165556/download Criminal No. 1:18-cr-l 11 (CMH)Count 1: 18 U.S.C.§ 793(g)Conspiracy To Receive National DefenseInformationCounts 2-4:18 U.S.C. § 793(b) and 2Obtaining National Defense InformationCounts 5-8: 18 U.S.C. § 793(c) and 2Obtaining National Defense InformationCounts 9-11: 18 U.S.C. § 793(d) and 2Disclosure of National Defense InformationCounts 12-14: 18 U.S.C. § 793(e) and 2Disclosure of National Defense InformationCounts 15-17: 18 U.S.C. § 793(e)Disclosure of National Defense InformationCount 18: 18 U.S.C. §§ 371 and 1030Conspiracy To Commit Computer Intrusion =================== I still don't see any indication that 18 U.S.C. 793 is extraterritorial:  That is apparently necessary for a prosecution for actions taken outside the U.S. Similarly, I don't see an indication that 18 U.S.C. 371 is extraterritorial. https://www.law.cornell.edu/uscode/text/18/371 Nor do I see that 18 U.S.C. 1030 is extraterritorial. https://www.law.cornell.edu/uscode/text/18/1030 For an example of a law which claims Extraterritorial jurisdiction, see:   https://www.law.cornell.edu/uscode/text/18/1512 "(h)There is extraterritorial Federal jurisdiction over an offense under this section."                     Jim Bell