National Law Journal: Jason Ching: Journalism WikiLeaks Style
Jason Ching surveys the prospects of a prosecution by the United States Government against Julian Assange, as a response to its recent document releases. The article is detailed, and considers U.S. law in detail, touching also on the case against Bradley Manning. Ching is not altogether favourable to Wikileaks, nor does he conclude that Wikileaks will avoid all legal liability, but his conclusion is that Wikileaks' proximity to the news and publishing industry is such that it will avoid the more drastic of the prosecutory efforts currently underway.
In summary, let's sweep away the tendentious arguments that Assange should not be extradited to the United States or that it is a violation of due process or other constitutional rights to prosecute him. Any fair analysis of the Espionage Act shows that he is chargeable, and yet any fair analysis of the political reality indicates that he is untouchable. The administration is faced with an impossible dilemma — WikiLeaks is joined at the hip with The New York Times et al., and its unofficial policy against charging news organizations protects them all. WikiLeaks, whether acting out of magnanimity or cleverness, cut the major news sources into the deal and in return gained functional immunity from prosecution for espionage.
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Correct conclusion, poor analysis
Ching's analysis shouldn't be taken too seriously, IMHO.
It's clear that he has done little real investigation into the facts of the matter (he misidentifies Manning's duty station as Afghanistan, appears to have concluded without evidence that Manning passed information to Assange--if he did so--via "intermediaries," etc.).
He also blithely assumes that Manning will be prosecuted under the Espionage Act when, in fact, all proceedings against Bradley, to date, are in military jurisdiction and pursuant to the provisions of the UCMJ, not the USC.
Ching makes a careful showing that Assange is likely guilty of violation of the Espionage Act, which is true. The Act is sufficiently broad that all of us who have participated in collection, distribution, discussion and retention of the subject materials could easily be found guilty. However, in his discussion of the reasons Assange likely won't be charged under that Act, Ching focuses on prosecutorial discretion, without once mentioning that there is a grave conflict between attempting to apply its provisions to anyone in Assange's position (or the media outlets', or ours) and the provisions and traditions of First Amendment practice in U.S. law. Even with the Roberts court, there is serious doubt that the Espionage Act, in such application, could survive appellate review.
Finally, in his discussion of the prospects for charging Assange under one of our many conspiracy statutes, Ching fails to note--although countless others, lawyers and journalists, have already done so--that collaborating with and encouraging sources to provide material ("conspiracy") is exactly what journalists (well, good ones) do every day. That course is, therefore, as fraught with danger for our whole legal, social and political system as is the Espionage Act path.
Counselor Ching probably reaches the right conclusion: Assange/WikiLeaks are likely beyond the reach of the laws that have been cited in all of the cries for their heads, but he should really prepare his brief more carefully.
None of this, of course, precludes the possibility that the government/establishment, in the blind rage of a wounded beast, will take vengeful action against Assange/WL regardless of the flimsy legal basis or the worldwide adverse consequences.
Just saw this. Thanks for
Just saw this. Thanks for this excellent comment, Doug.