Is Assange now unprosecutable?

[jim bell]

 From: Steve Kinney <admin at pilobilus.net>

On 03/12/2017 11:28 PM, jim bell wrote:
>> That recent leak of America's hacking secrets comes at an opportune
>> time for Assange.  He may have to leave that embassy in London
>> within a few months.  Generally, and unlike MY trial, a Federal
>> criminal defendant gets great leeway to call witnesses for his
>> defense.  Now that he has published the 'keys to the kingdom', I
>> doubt whether it would even be possible to prosecute him.  Imagine
>> all the witnesses he could call just to verify the genuineness of
>> those recent documents!
> 
>> No doubt the person or people who leaked that material to Wikileaks
>> knew this.  Somebody deserves some big congratulations.

>One thing I have never understood:  Prosecute Assange where, for what?
Good question.  I wish I had a clear answer.  The Supreme court decision  https://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States upheld the denial of an injunction which would have prohibited the New York Times newspaper from publishing what became known as the "Pentagon Papers", 
This generally upheld the right of a news organization to publish leaked (or stolen) secret materials.  It is conceivable, however, that if the publishing organization is seen as cooperating too closely with the people who leaked or stole the materials, the decision might be different.  I am just speculating here, but perhaps there might exist an argument that the relationship between Manning and Wikileaks was sufficiently 'close' to provide an exception to this.  
It's hard to know how this kind of case will be dealt with.  While in prison, I had access to a 'LEXIS' law-library computer system, which made it easy to search for lower-court cases which cite the New York Times v. United States decision I cite above.  And, these kinds of cases are extremely rare.  
As a practical matter, I don't think there is any valid basis to prosecute Assange or any Wikileaks staff for Manning's leak.  It would be possible to imagine a hypothetical "cartoon" scenario where Assange held Manning's laptop computer in Iraq, while Manning logged into the system from which he downloaded the diplomatic cables.  But I don't think any such event occurred.  An alternative scenario might be if Manning sent emails to Assange, saying things like 'I have the ability to download hundreds of thousands of U.S. diplomatic cables, and send them to you.  Do you think this would be a good idea?  Should I do that? Say yes and I will!!!'     
×   

>It is alleged that a foreign national on foreign soil has published
>"top secret" U.S. military and diplomatic documents provided
>anonymously by a U.S. national (Chelsea Manning), and/or has published
>proprietary information transferred illegally by U.S. citizens acting
>on U.S. soli (DNC mail, RIP Seth Rich, etc.).  How will a Prosecutor
>assert that a U.S. Court has jurisdiction over a foreign publisher who
>received these materials and published them gratis?  (Excluding
>"specious argument constructed for public consumption, corrupt Judge,
>rubber stamp.")
Generally, there is a well-established legal principle that American Federal laws are not to be considered applicable outside the bounds of the United States (or territories) unless the laws themselves clearly state otherwise.  https://en.wikipedia.org/wiki/Extraterritorial_jurisdiction  How that principle survives in the wake of Afghanistan and Iraq, including Guantanamo, I don't know.  

>Does the U.S. State have sovereign authority over the citizens of
>"other" sovereign nations acting outside U.S. borders?  Maybe I'm just
>being dense here.  Can somebody clue me in?×   

There may be  U.S. laws punishing terrorist attacks against Americans abroad.  Don't recall the details.  https://archives.fbi.gov/archives/news/stories/2008/june/international_060308  ×   


>Also, per Jim's post, I am having a hard time wrapping my head around
>the argument that publishing true and damaging information somehow
>creates a barrier to prosecution.  A public opinion issue or a legal
>one?  Either way I'm not getting it.
Strictly speaking, there may be no explicit 'barrier' to prosecution.  But prosecutions under American law are supposed to be public, and that includes the right of the defense to obtain 'discovery', and to employ public testimony.  That has costs of embarrassment, including potentially revealing a lot of material that the government doesn't want to see exposed.  Remember that the leakers themselves, or people entirely unconnected with the leakers, might get into contact with the Defense team, making lists of very embarrassing lines of questioning that government staff don't want to see addressed.   Such questions can be rudely ignored in press conferences, but in criminal trials, generally the defense is allowed to ask germane questions and compel the answers from witnesses, all under penalty of perjury.  This would be an utterly terrifying situation for the government, particularly since follow-up questions are always available.  
Look at what happened when it became publicly-known that Hillary Clinton was using her own private email server for classified information, rather than a government-provided one.  This tiny piece of information probably ended up changing the outcome of the 2016 election.   http://www.washingtontimes.com/news/2016/oct/12/guccifer-hacker-who-exposed-hillary-clinton-privat/
       Jim Bell


   
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