The Constitutional Rubicon of an Assange Prosecution

Razer g2s at
Tue May 9 10:14:04 PDT 2017

> The Constitutional Rubicon of an Assange Prosecution
> By Elizabeth Goitein
> Tuesday, May 9, 2017
> "If you were tuning in and out of FBI Director James Comey’s hearing
> before the House Intelligence Committee last Wednesday, you probably
> got an earful about Comey’s public statements on Clinton’s use of a
> private e-mail server, and you may have heard his staunch defense of
> Section 702 of FISA. But you might have missed the moment in which
> Comey and Senator Ben Sasse (R-NE) threatened to topple one of the
> longstanding pillars of journalistic freedom.
> That moment came when Sasse asked Comey why Julian Assange has not
> been charged with a crime in connection with WikiLeaks’ publication of
> classified information. (Sasse was at it again during yesterday’s
> hearing on the Russia investigation, quizzing former DNI Clapper about
> Assange’s actions.) After refusing to answer whether charges were
> pending, Comey effectively confirmed that they were: “He hasn’t been
> apprehended because he’s inside the Ecuadorian embassy in London.” He
> also said that “WikiLeaks is an important focus of our attention.”
> No one has ever been prosecuted for publishing classified information
> obtained through a leak. Although some parts of the Espionage Act
> would appear, on their face, to allow prosecution in such cases, Comey
> acknowledged that “the Department of Justice’s view has been [that]
> newsgathering and legitimate news reporting is not covered, is not
> going to be investigated or prosecuted as a criminal act.” The
> Department to date has drawn a clear line between government officials
> who leak classified information, and media outlets that publish it.
> “Our focus is and should be on the leakers, not those [who] are
> obtaining it as part of legitimate newsgathering.”
> One might posit a distinction between those who passively receive
> classified information and those who actively solicit leaks, as
> WikiLeaks is reported to do. (Obama’s Department of Justice flirted
> with that approach: in an affidavit seeking to obtain e-mails between
> Fox reporter James Rosen and a State Department source who was under
> investigation for leaking classified information, the Department
> accused Rosen of conspiring to violate the Espionage Act.) But Comey
> was not making that distinction. Senator Sasse asked him whether
> “American journalists [who] court and solicit [classified]
> information” have violated the law, and Comey responded that the
> Department of Justice would not prosecute such activity.
> So why, in Comey’s mind, is it permissible to bring charges against
> Assange?  He explained his reasoning as follows..."

With links:

> Elizabeth Goitein co-directs the Brennan Center for Justice’s Liberty
> and National Security Program. Before joining the Brennan Center, Ms.
> Goitein served as counsel to Sen. Russ Feingold and as a trial
> attorney in the Federal Programs Branch of the Civil Division of the
> Department of Justice. 

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