The (Weak) Case Against Assange

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From the protected confines of an English manor belonging to Vaughn Smith, founder of the Frontline Club, Julian Assange said today that he fears extradition to the U.S. It’s not clear why. Bradley Manning, the U.S. Army private who allegedly gave to WikiLeaks the bulk of the materials that have caused such outrage in the U.S., is being held on charges of theft and espionage. It is very hard to see how Assange could be convicted if he were similarly charged.

There has only been one case of the espionage act being used to successfully prosecute someone who claimed to be a journalist for publishing secrets. In 1985 a federal court in Virginia convicted a Navy intelligence analyst named Samuel Morison of stealing a variety of secret documents regarding Soviet armed forces and leaking them to the British publication Jane’s Defence Weekly. Morison had an ambiguous relationship with Jane’s that had been sanctioned by the Navy, and he was paid for work that he did for Jane’s as a moonlighter.

Morison, and his defenders, including Time Inc., argued that his association with Jane’s provided him first amendment protection against prosecution under the espionage act. Both the district court and the appeals court, which heard the case three years later, carefully differentiated between his role as an “editor” for Jane’s, and his day job as an intelligence analyst for the Navy. The entire conviction, and its affirmation in the fourth circuit court of appeals, rested on the fact that Morison was the person responsible for the leak: that he had taken the documents and given them to Jane’s despite having signed a pledge not leak classified information, and that he had been employed by the Navy at the time of the leak and the publication.

In other words, the conviction was based entirely on Morison being the leaker, not the publisher. Throughout both the circuit opinion and the original conviction, the U.S. courts made clear that the ruiling would be very different in the case of a publisher rather than a leaker. Which means in the WikiLeaks case, Bradley Manning has plenty to worry about, but Assange probably doesn’t.

On the other hand, a confrontation with the U.S. would certainly boost his support. Then again, so might publicly worrying about what he claims is a “secret” and “illegal investigation”by the U.S. that could lead to extradition.

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