Julian Assange defends the First Amendment

[sjw]

Calm, rational, insightful, composed, all while there is a gun being put to his head:

http://www.msnbc.msn.com/id/21134540/vp/40785274#40785274

Shayne

[RagJohn]

I doubt that any of us know enough about the entire issue to have an informed opinion on this.

[Michael Stuart Kelly]

Shayne,

Assange is spot on in several of his comments, especially the one about the wrongness of senior people within the USA calling for his murder.

One thing that bothers me about him, though, is that he is claiming (or strongly implying) his own vestment of the rights protected under the USA government, but he is not a USA citizen. I keep waiting for foreigners who talk about their own claims to USA rights protections to start claiming the right to vote.

Anyway, here he is exercising the USA First Amendment rights in person. He (the real Assange) appears near the end after his caricature character has been running for a while.

I watched this thing only once and don't know if I could get through it again. I'm not a fan of low-brow mocking or rap. Assange is an Aussie and so are the folks who made this thing. So maybe this form of humor hits a nerve over there. I wouldn't find it funny even if I despised O'Reilly (which I don't--quite the contrary). I don't find watch that kind of stuff over here that blasts people I dislike.

The video is called: RAP NEWS 5: News World Order - the war on journalism (ft. Julian Assange)

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Enjoy, if this is your cup of tea...

Michael

[sjw]

Michael, where in the Bill of Rights does it say that these rights apply only to US citizens? Further, would you not say that these rights concern basic natural rights that belong to everyone, regardless of their government?

Shayne

[Michael Stuart Kelly]

Shayne,

The wording of the 14th Amendment is not the best in terms of clarity, but it makes a strong implication that it is dealing with the citizens of the USA, especially seeing as to how it is titled "Citizenship Rights." The preamble also says, "We the People of the United States," not "We the People of other countries."

There has been debate on this by revisionists, who think aliens are granted rights in the 14th Amendment, but I contend that the governing document of the USA was chartered as a governing document for US citizens, not a governing document holding jurisdiction over citizens of other countries. In fact, that is one Pandora's box that is best kept shut--or at least as shut as humanly possible--depending on which President and members of Congress we have in office at any given time.

Michael

[sjw]

The Bill of Rights is not intended to govern citizens, it's intended to govern government. It doesn't assign rights as "gifts" given to citizens, but rather restrains government from violating what the citizens by their nature already have.

A declaration of rights is not a creation of them, nor a donation of them. It is a manifest of the principle by which they exist, followed by a detail of what the rights are; for every civil right has a natural right for its foundation, and it includes the principle of a reciprocal guarantee of those rights from man to man. As, therefore, it is impossible to discover any origin of rights otherwise than in the origin of man, it consequently follows, that rights appertain to man in right of his existence only, and must therefore be equal to every man. --Thomas Paine

Shayne

Edited December 25, 2010 by sjw

[Michael Stuart Kelly]

Shayne,

Which government are you referring to? The one made by "We the People of the United States" or an imaginary one made by "We the People of everywhere"?

Michael

[sjw]

Shayne,

Which government are you referring to? The one made by "We the People of the United States" or an imaginary one made by "We the People of everywhere"?

Michael

It's irrelevant to the issue. A government is an institution of men. If I have no right to break into your house without just cause (i.e., because of your own rights violation), then I can't delegate that non-existent right to government either.

Whether there is or isn't a government, there exist natural inalienable rights, and no man, or group of them, can rightly violate them. That is what the Bill of Rights is about. It's not about gifts to citizens, it's about binding government.

Shayne

Edited December 25, 2010 by sjw

[Brant Gaede]

The Bill of Rights does not amend the Constitution. The amendments follow.

--Brant

[Michael Stuart Kelly]

It's irrelevant to the issue. A government is an institution of men.

Shayne,

I'm confused. I thought you were asking me "where in the Bill of Rights does it say that these rights apply only to US citizens"?

Now you are talking about "a government," which I presume to mean any government--or at least any government that meets criteria you have established for your definition.

If you want to discuss "a government," we can do that.

Michael

[BaalChatzaf]

It's irrelevant to the issue. A government is an institution of men.

Shayne,

I'm confused. I thought you were asking me "where in the Bill of Rights does it say that these rights apply only to US citizens"?

Now you are talking about "a government," which I presume to mean any government--or at least any government that meets criteria you have established for your definition.

If you want to discuss "a government," we can do that.

Michael

The question is where they apply, not to whom they apply. They apply to anyone in the jurisdiction of the United States, be they citizen or not.

Ba'al Chatzaf

[Michael Stuart Kelly]

The question is where they apply, not to whom they apply.

Bob,

Actually, it's both, isn't it?

But back on the idea, you either believe that the USA Constitution is made by and for USA citizens--with provisions (emanating from the power of the USA citizens) for how to deal with foreigners who are within USA territory, or you believe that the USA Constitution is a document that extends citizenship protections to all non-citizens of the earth when they are within the territory.

I hold to the first. I don't think the Founding Fathers were legislating over foreigners and intending to treat them as citizens when they drew up the founding documents.

Michael

[sjw]

It's irrelevant to the issue. A government is an institution of men.

Shayne,

I'm confused. I thought you were asking me "where in the Bill of Rights does it say that these rights apply only to US citizens"?

Now you are talking about "a government," which I presume to mean any government--or at least any government that meets criteria you have established for your definition.

If you want to discuss "a government," we can do that.

Michael

I thought you were implying that Assange doesn't deserve to be protected from the United States government violating his rights because he's not a citizen. My point was then that the US government should never violate anyone's rights, whether citizens or not.

Shayne

[James Heaps-Nelson]

The question is where they apply, not to whom they apply.

Bob,

Actually, it's both, isn't it?

But back on the idea, you either believe that the USA Constitution is made by and for USA citizens--with provisions (emanating from the power of the USA citizens) for how to deal with foreigners who are within USA territory, or you believe that the USA Constitution is a document that extends citizenship protections to all non-citizens of the earth when they are within the territory.

I hold to the first. I don't think the Founding Fathers were legislating over foreigners and intending to treat them as citizens when they drew up the founding documents.

Michael

Michael,

I think that the Declaration of Independence is as much a founding document as the Constitution and it extends inalienable rights to all people. If the US wishes to build a legal case, it needs to build it according to statutory or Constitutional law. If the US wishes to try Julian Assange in a US criminal court then he is afforded all of the rights of a US citizen. If the US government wishes to treat an Australian citizen as subject to extrajudicial sanction, the US government is hypocritical in hoping to extend consular protection to its own citizens.

In fact, the right thing for the US to do is to try Assange in a US criminal court with Constitutional protections. The right thing for Great Britain and Sweden to do, if they have any level of self-respect, given the level of US State department malfeasance, is to refuse to extradite Assange and to tell the US government to go pound sand and clean up its act before trying to assert jurisdiction anywhere else.

Jim

[Michael Stuart Kelly]

In fact, the right thing for the US to do is to try Assange in a US criminal court with Constitutional protections.

James,

How would the USA do that? Letters rogatory with petition for extradition?

Using the logic that foreigners have USA government protected rights, wouldn't the petition to remove him from one country to another by force without a conviction violate his rights?

I don't see this at all as correct logic.

Michael

[James Heaps-Nelson]

In fact, the right thing for the US to do is to try Assange in a US criminal court with Constitutional protections.

James,

How would the USA do that? Letters rogatory with petition for extradition?

Using the logic that foreigners have USA government protected rights, wouldn't the petition to remove him from one country to another by force without a conviction violate his rights?

I don't see this at all as correct logic.

Michael

Not if a country had wide-ranging extradition treaties with the United States. By living in such a country, you are bound by US law in an attenuated sense. The degree to which a foreign government agrees with US jurisdiction over its own citizens in certain matters is the degree to which foreign nationals are subject to US law and afforded US Constitutional protections.

Likewise, if you are a US citizen, you are bound by foreign law to the degree that the US is willing to acknowledge it. In many cases, if a US citizen was found to be stealing or receiving British, French or German classified state documents, he/she could expect to be extradited to those countries for trial.

Jim

Edited December 25, 2010 by James Heaps-Nelson

[Michael Stuart Kelly]

I thought you were implying that Assange doesn't deserve to be protected from the United States government violating his rights because he's not a citizen. My point was then that the US government should never violate anyone's rights, whether citizens or not.

Shayne,

That kind of presumption is why these kinds of discussions are difficult. (I'm not criticizing here. Just noting the difficulty when people have strongly formed views that are also loaded with emotion.)

My objection to Assange is not that he can claim he has universal rights--thus, by extension, he claims his sovereignty as an individual with inalienable rights regardless of which country he's in. My objection is his demeanor in discussing (or implying) his personal protection under USA law according to Amendment this or that or Article this or that when he is on foreign soil. He's not a USA citizen and he has no business trying to publicly frame his legal condition according to USA law as if he were. That's called muddying the waters and I, for one, ain't buying it.

(And I shudder to think what the power mongers in Washington do with this kind of reasoning. I know some are already thinking that they're find with giving him USA government protection over there. That sets a precedent that the USA government has jurisdiction over there. This crap grows.)

Assange did what he did because he thinks the USA government (and other governments) are abusing their power. I'm actually fine with that.

I'm even glad he did it since this kind of purge and exposing the abuses to the light of day is great once in a while. (But, on the other hand, look at the governemts of the world--especially the USA government--now trying to take over the Internet.)

The fact is, Assange did perform an act of hostility against the current administration. In Brazil they say poked at a wildcat with a short stick.

Now he wants to posture and tell the wildcat which can of cat food it can eat--when the wildcat is looking at him as dinner.

I can't take that seriously on a conceptual level. Assange is a foreign actor in this affair. He is not a political American hero in the same sense someone like Muhammad Ali is and I find it wrong that he is trying to pretend he is.

Michael

[Selene]

In fact, the right thing for the US to do is to try Assange in a US criminal court with Constitutional protections.

James,

How would the USA do that? Letters rogatory with petition for extradition?

Using the logic that foreigners have USA government protected rights, wouldn't the petition to remove him from one country to another by force without a conviction violate his rights?

I don't see this at all as correct logic.

Michael

Not if a country had wide-ranging extradition treaties with the United States. By living in such a country, you are bound by US law in an attenuated sense. The degree to which a foreign government agrees with US jurisdiction over its own citizens in certain matters is the degree to which foreign nationals are subject to US law and afforded US Constitutional protections.

Likewise, if you are a US citizen, you are bound by foreign law to the degree that the US is willing to acknowledge it. In many cases, if a US citizen was found to be stealing or receiving British, French or German classified state documents, he/she could expect to be extradited to those countries for trial.

Jim

Jim:

You are correct. Sweden is extraditing him for the alleged "rape," which, unfortunately, seems to have more legs [no pun intended] than I originally thought. Once he is in Swedish jurisdiction, they will hold him pending trial on that charge.

Supposedly, the US will then submit an extradition "demand" to Sweden under the indictment using the Espionage Act of 1918. At that point, Assange will have to be accorded all rights under US Federal Criminal procedure.

If Manley rolls on him, he has a problem. However, I just cannot see an American jury not being, at a minimum, a hung jury.

Another, "surprise" that I heard about this morning, but have not been able to confirm, is that one of the folks at Wikileaks, who is "pissed" at Assange, gave the Norwegian press (?) the 256 digit encryption that released the files that he had in reserve for "negotiation" and protection.

Adam

Post Script: Looks like we would not need those rogatory thingies with Sweden.

Letters rogatory are the customary method of obtaining assistance from abroad in the absence of a treaty or executive agreement. A letter rogatory is a request from a judge in the United States to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country's sovereignty. Prosecutors should assume that the process will take a year or more. Letters rogatory are customarily transmitted via the diplomatic channel, a time-consuming means of transmission. The time involved may be shortened by transmitting a copy of the request through Interpol, or through some other more direct route, but even in urgent cases the request may take over a month to execute. See Paragraph B below (fifth item re translation and transmission).

[Michael Stuart Kelly]

Not if a country had wide-ranging extradition treaties with the United States. By living in such a country, you are bound by US law in an attenuated sense. The degree to which a foreign government agrees with US jurisdiction over its own citizens in certain matters is the degree to which foreign nationals are subject to US law and afforded US Constitutional protections.

Jim,

I translated treaties and such for a little over ten years (35,000 pages of technical and legal stuff--with lots of international law among this). Not once have I seen the structure you mention here.

I am aware of extradition treaties, but they have to have a correspondence in local law, with extradition being ordered by a local court. I don't mean a USA court, either. I know of no country that places its own citizens under the jurisdiction of the USA within its own borders except for situations like Iraq and Afghanistan.

Michael

[Michael Stuart Kelly]

Post Script: Looks like we would not need those rogatory thingies with Sweden.

Letters rogatory are the customary method of obtaining assistance from abroad in the absence of a treaty or executive agreement. A letter rogatory is a request from a judge in the United States to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country's sovereignty.

Adam,

This is correct. I should not have used the term.

It's been a while.

(I actually translated several--the most amusing being a Brazilian who went to Las Vegas, ran up a casino bill of over a million dollars and beat a fast track back to Brazil where gambling is unconstitutional. He did not get extradited, but I don't think he sleeps too soundly either. )

Michael

[Selene]

Post Script: Looks like we would not need those rogatory thingies with Sweden.

Letters rogatory are the customary method of obtaining assistance from abroad in the absence of a treaty or executive agreement. A letter rogatory is a request from a judge in the United States to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country's sovereignty.

Adam,

This is correct. I should not have used the term.

It's been a while.

(I actually translated several--the most amusing being a Brazilian who went to Las Vegas, ran up a casino bill of over a million dollars and beat a fast track back to Brazil where gambling is unconstitutional. He did not get extradited, but I don't think he sleeps too soundly either. )

Michael

Michael:

Hell, I wouldn't sleep well either. And thanks because I had never heard of rogatory letters - hell, for all I knew they were introductions to a New England Rotary lunch meeting!

You have lead a very intriguing life Michael.

Adam

[James Heaps-Nelson]

Not if a country had wide-ranging extradition treaties with the United States. By living in such a country, you are bound by US law in an attenuated sense. The degree to which a foreign government agrees with US jurisdiction over its own citizens in certain matters is the degree to which foreign nationals are subject to US law and afforded US Constitutional protections.

Jim,

I translated treaties and such for a little over ten years (35,000 pages of technical and legal stuff--with lots of international law among this). Not once have I seen the structure you mention here.

I am aware of extradition treaties, but they have to have a correspondence in local law, with extradition being ordered by a local court. I don't mean a USA court, either. I know of no country that places its own citizens under the jurisdiction of the USA within its own borders except for situations like Iraq and Afghanistan.

Michael

Michael, sure. The mechanism for implementation of US law in foreign countries is local law. However, it is highly unlikely that many of those local laws would exist without pressure from the US. The US more aggressively pursues the projection of legal prerogative across borders than almost any other country. So if you were a foreign national and your government passed a bunch of laws to become in compliance with a US negotiated international treaty and you were remanded to the US for trial under those laws, would you really consider yourself under your own country's jurisdiction, especially if the trial were prosecuted in accordance with US criminal procedure?

Jim

[Michael Stuart Kelly]

So if you were a foreign national and your government passed a bunch of laws to become in compliance with a US negotiated international treaty and you were remanded to the US for trial under those laws, would you really consider yourself under your own country's jurisdiction, especially if the trial were prosecuted in accordance with US criminal procedure?

Jim,

I lived in a country for over 30 years that was practically the back yard of the USA. (No longer, but back then it was.) Of course, Brazilians considered themselves under their own country's jurisdiction. Why wouldn't they? As for petitions of extradition, the lawyers of the defendants had to use Brazilian courts and Brazilian laws. Because of the loopholes and peculiarities of Brazilian law, many times the outcomes were contrary to what the USA wanted.

Michael

[Selene]

This just popped into my e-mail...

Is Julian Assange a Journalist?

Opinion Editorial by Jacob Sullum - Dec 24, 2010 6 ratings from readers When it comes to the First Amendment, there is no restriction on who may publish information. Why, then, has Wikileaks been targeted so aggressively by the US government?

Despite Vice President Biden's recent squabbling with Republican senators over the meaning of Christmas, he and Senate Minority Leader Mitch McConnell do agree on something. They both say WikiLeaks founder Julian Assange, who has published thousands of confidential Pentagon and State Department documents on his group's website, is "a high-tech terrorist."

But assuming that President Obama is not ready to drop a bomb on Assange, punishing him for disseminating military records and diplomatic cables will require specifying what crime he committed under U.S. law. That won't be easy, unless the Justice Department is prepared to criminalize something journalists do every day: divulge information that the government wants to keep secret.

Last week, Assange's lawyer claimed a grand jury has been convened in Alexandria, Va., with the aim of indicting him. But under what statute?

The most obvious possibility is the Espionage Act of 1917, which makes it a crime, punishable by up to 10 years in prison, to "receive," "deliver," "transmit" or "communicate" any "information relating to the national defense" that "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."

In spite of the law's sweeping language, it has almost always been applied to government employees who leak information, as opposed to people who receive it and pass it on.

The one exception was the 2005 indictment of two former pro-Israel lobbyists who were accused of receiving and disclosing classified information about U.S. policy toward Iran. Their source, a Pentagon official, was convicted under the Espionage Act, but the case against them fell apart after the judge ruled that the government would have to show they knew their disclosures were unauthorized and might damage national security.

Assange could be prosecuted even under that reading of the law, and so could all the news organizations that ran stories about the WikiLeaks documents. But the government has never used the Espionage Act to prosecute a journalist, which is what Assange claims to be.

His critics disagree. "WikiLeaks is not a news organization," writes Washington Post columnist Marc Thiessen. "It is a criminal enterprise. Its reason for existence is to obtain classified national security information and disseminate it as widely as possible. ... These actions are likely a violation of the Espionage Act, and they arguably constitute material support for terrorism."

There is a circular quality to this argument: Assange is not a journalist because he's a criminal, and he's a criminal because he's not a journalist. But for constitutional purposes, it does not matter whether Marc Thiessen, Attorney General Eric Holder or anyone else considers Assange a journalist.

"Freedom of the press" does not mean the freedom of those individuals who are lucky enough to be officially recognized as members of the Fourth Estate. It means the freedom to use technologies of mass communication, which today include the Internet. This freedom does not amount to much if the government can deny it to someone by questioning his journalistic credentials.

The government could try to avoid First Amendment problems by accusing Assange of conspiring with Pfc. Bradley Manning, the Army intelligence analyst who is charged with leaking the Pentagon and State Department documents.

Such a conspiracy could be a crime under the Espionage Act or the Computer Fraud and Abuse Act, which prohibits disclosure of sensitive national defense or foreign relations information obtained through unauthorized computer access. But so far no evidence has emerged that Assange was any more culpable in the leaks than a reporter who receives confidential information from a government source.

There is another way to stop anger over the WikiLeaks document dumps from turning into an assault on the First Amendment. Assuming the allegations against Manning are true, the government should be asking why its own data security practices are so shoddy that a single low-ranking soldier with computer access was able to divulge such a huge trove of supposedly secret information.

Jacob Sullum is a senior editor at Reason magazine, and his work appears in the new Reason anthology Choice (BenBella Books). Sullum is a graduate of Cornell University, where he majored in economics and psychology. He lives in Northern Virginia with his wife and daughter.

[James Heaps-Nelson]

So if you were a foreign national and your government passed a bunch of laws to become in compliance with a US negotiated international treaty and you were remanded to the US for trial under those laws, would you really consider yourself under your own country's jurisdiction, especially if the trial were prosecuted in accordance with US criminal procedure?

Jim,

I lived in a country for over 30 years that was practically the back yard of the USA. (No longer, but back then it was.) Of course, Brazilians considered themselves under their own country's jurisdiction. Why wouldn't they? As for petitions of extradition, the lawyers of the defendants had to use Brazilian courts and Brazilian laws. Because of the loopholes and peculiarities of Brazilian law, many times the outcomes were contrary to what the USA wanted.

Michael

Michael,

My point is this. I think it is highly likely that Julian Assange will face trial in the US for actions as head of Wikileaks. The US government will use any and all leverage to make sure that happens. I think it would be almost as likely if Assange were currently in Melbourne as if he was in New York. Assange will be tried according to US law. The only thing local law will do is facilitate getting him on a plane to the US.

JIM