The Quagmire of Wikileaks
The Justice Department and Pentagon are conducting a criminal investigation to determine whether WikiLeaks founder Julian Assange violated criminal laws in releasing government documents. Personally, I am more than appalled that this little insignificant vermin would have the gall to act in such a manner. If it were up to me, I would kidnap his rotten little butt, put him on a airplane, take him to my garage, beat him to pulp and then put on a plane back to his own country to live out his life in a wheel chair. But that is a personal opinion and not necessarily legal.
Charges under the federal Espionage Act are complex and the legal issues are complex. To simplify the matter the first question is whether there is a “Corpus delicti”. In criminal law, this is defined as the facts of a crime or the body of facts that show that a crime has been committed. In this case, the questions include: (1)How can the United States enforce its laws against a person who was probably not physically present in the country when the dastardly deed was done. He was not a citizen, not a resident and was not even here! (2) Prosecutions involving leaked classified information are difficult because the Espionage Act is a 1917 statute that preceded numerous Supreme Court cases that expanded First Amendment protections. (3) The United States government also would have to persuade another country to turn over Assange, who is outside the United States. Aside from the First Amendment issues, in order to further explain the issue, an example would be that when I was a kid, I hated asparagus. My mom never made me eat it because it made me gag (Bless her heart). However, does Mrs. Nelson, a neighbor who lives across the street have the right to walk into our house and make me eat it, or drag me to her house and make me eat it – I SHOULD THINK NOT! Another revolting example is kiddie porn. It is very illegal to own or keep it here in California. If I owned some and a police officer showed up from Paris, France and said: “We are arresting you and taking you back to Paris for trial”, California courts would say: “He might be a nasty little S.O.B., but he is OUR nasty little S.O.B!! We will try him and then send him to jail – so take your narrow little butt back to Paris before we kick it off the face of the planet!”
In this case the subject is information. Is information that exists within the United States protectable? If it exists physically on a piece of paper or a pile of papers and one, personally invades a location within the United States to copy or retrieve the information, you have a “Corpus delicti” because we have the right to say what acts are right or wrong when they are committed within our borders. If the information is on a computer, and one personally invade a location within the United States to copy or retrieve the information, the same analysis applies.
From the information available in the press, it is hard to know how Julian Assange obtained the information. Since he was not in this country, however, we can narrow it down to a number of possibilities: (1) Someone handed it to him physically, or (2) Someone gave him the passwords so that he could access it on the internet, or (3) Assange and/or people that he employed came up with some high powered, mumbo jumbo program that allowed him to hack into encrypted information on the net. In each case, he was not here. Should any of those facts be provable, what laws of this country did he violate? How is that the United States has the right to control what anyone does if they are not citizens of the U.S., are not residents of the U.S. and are not present in the U.S?
Some of you may recall the Movie called “Absence of Malice” which starred the late Paul Newman and Sally Field who played a news reporter. One scene was where Field’s character was interviewing a federal prosecutor who conveniently left the room leaving a file invitingly open on his desk expecting Field’s character to read it. The deputy prosecutor purposely “Leaked” the information by dangling it in front of inquisitive eyes. The bad actor there was the deputy prosecutor. As the character played by Wilford Brimley deftly pointed out, once the press (or anyone for that matter) is presented with information, regardless of how they receive it, they are generally allowed to repeat it and generally, there is not a damn thing anyone can do about it. Although the Justice Department has taken the position that media organizations could be prosecuted for printing leaked classified information under the Espionage Act, that prospect is unlikely because of official aversion to running afoul of the First Amendment. While a former CIA general counsel, said that he is confident that the Justice Department is figuring out how to prosecute Assange, I have my doubts. Smith explains that under the Espionage Act, anyone who has "unauthorized possession to information relating to the national defense" and has reason to believe it could harm the United States may be prosecuted if he publishes it or "willfully" retains it when the government has demanded its return. BUT, who the hell is the United States government to people like Assange. He might be a nasty little vermin (he is wanted in Sweden on suspicion of rape and sexual harassment), but he is not ours and he owes absolutely no duty of loyalty to the United States.
The real culprit here is the government and/or the employees thereof. In the event that this information is so important in determining the future policy of the United States and must be kept secret, why is it being leaked or given to this little creep. In the alternative, why is such information being placed on the net. Doesn’t the government know about hackers??? If you put any information on the world wide net, you might as well put it on “Facebook”. I will admit that I have little regard for the person who last held the position of President of the United States before Mr. Obama, but I did have a great deal of respect for the abilities and experience regarding foreign policy of George Bush the senior. I think he would say that government has not been prudent in our handling of such important information so as to let a person like Assange gain access thereto. He cannot be shamed – but shame on us.
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