A Conspiracy Indictment For Wikileaks?

All over the news this morning (Wired, NYT): The Justice Department wants to go after Assange for conspiracy to encourage Bradley Manning to disclose classified information, rather than for publishing that information.

Apparently this is felt to be clever: prosecution for publishing secrets has a long and celebrated history of failure in the US. Such a prosecution would face nearly insurmountable First Amendment case law, and would also immediately mobilize the US media against it. Prosecution for conspiracy, on the other hand, offers much flexibility in the sort of admissible evidence and legal theory, and doesn’t wave the same sort of red cape at First Amendment defenders. It’s brilliant.

Except it’s stupid.

Let’s think about this for a second. The legal theory here is that it is illegal, for a citizen of a foreign country living abroad, to conspire with a US citizen to furnish classified information to unauthorized recipients, and that anyone engaging in such a conspiracy may be extradited to the US for prosecution. Can you think of anyone else that this theory sweeps up in its net?

I can: the heads of intelligence services of most major nations (certainly of China, Russia, Israel, France, India…), as well as hundreds of thousands of their subordinates, and possibly a few of their political masters. All of these people have “conspired” (the word is used advisedly, in its original sense, not in comically vague sense of American legal jargon) to obtain classified information from the US, and most of them are at it now.

So what are we saying? Is Vladimir Putin a criminal under American law? He ran the USSR’s KGB, after all, and its Russian successor agency, which answers to him, is known to have successfully run high-level American agents. Shouldn’t a grand jury at least look at him?

And, if we’re going to take this theory seriously, couldn’t other nations legitimately employ the same theory against us? Shouldn’t the US Director of National Intelligence fear being taken into custody whenever he travels abroad to any nation where he might get hit by an extradition request from, say, China? Sauce for the goose is sauce for the gander, after all. It can’t only be illegal under International law to spy on the United States.

But if it’s not an extraditable offence for foreigners to spy on us, then what is the difference here? Why is Assange liable? What did he do that’s any different?

That’s right! He published the stolen information!

That’s the difference. The whole difference. If Assange had taken that document drop and read it all, but not shared it with the media (or even not garnered as much publicity for it), would he be in the legal trouble he’s in now? I doubt it. Even if he’d shopped it to a few unaligned governments on the QT, and the U.S. government knew about it, a veil of secrecy would cover the whole thing. No Interpol, no International arrest warrant issued on charges mysteriously reheated after being dropped, no DOJ investigation, no conspiracy charge in prospect. If he ever happened to travel to the US he’d get what was coming to him, but otherwise he’d be fine.

The DOJ’s theory is incoherent. If this isn’t an effort to suppress political speech, they should be after heads of foreign intelligence agencies, maybe heads of state. Since they aren’t, and because they are preparing to drop from a great height on a guy whose only distinction from his fellow foreign spies is that he shared what he obtained with the media, this is ipso facto a First Amendment case. Good luck distinguishing it from the Pentagon Papers. Unless DOJ comes to its senses (or, less likely, Obama locates his spine) I think the kind of lawyers who will break through walls for a chance to represent Assange will make a very unlucky US Attorney look like an idiot in a trial that will rivet the world’s attention.

The theatrical aspect of this action merely heaps injury upon insult. Assange isn’t Wikileaks. Taking him down doesn’t shut down Wikileaks. The US’s heavy-handed response to the latest document dump is, if anything, empowering Wikileaks, bringing them more attention, more passionate support, more money, and, probably, more leaks. At the same time it is plunging International public regard for the US back to levels last seen at the nadir of the Bush administration — a public-relations disaster worse than the original security breach. The same blind, narrow-minded stupidity that leads book-burners to furnish publicity to the authors that they hate is causing the US government to pave the way for its next embarassment, and to train a new generation of world citizens to detest it. How pathetic.

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