The U.S. Attorney General plans to prosecute Wikileaks founder Julian Assange for leaking classified information, but he faces an issue: there’s no statute that explicitly forbids what Wikileaks has done. Prosecutors may try another tack, such as bringing espionage charges, but there are murky legal issues there too. As Assange is taken into custody on rape charges in Sweden, we explore what’s at stake for the U.S.

Guests

  • Stephen Vladeck Professor of Constitutional Law and Federal Jurisdiction, American University's Washington College of Law

Transcript

  • 13:06:41

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, a new look at addiction, we talk with a British researcher about the impact of drugs and alcohol on society. But first, the legal case against Wikileaks. Wikileaks founder, Julian Assange, has been arrested in the U.K. and may be extradited to Sweden on rape charges. But the legal showdown everyone is anticipating is whether and how the U.S. government will prosecute Assange for the release of hundreds of thousands of classified documents.

  • 13:07:27

    MR. KOJO NNAMDIThe U.S. Attorney General has launched a criminal investigation, but there is no statute making it illegal to reveal classified information and prosecution under espionage charges raises difficult questions about free speech, freedom of the press and government secrecy, especially since the media, even those now screaming for blood, have long relied on these protections built into our system.

  • 13:07:52

    MR. KOJO NNAMDIWe'll explore the complicated legal issues and what's at stake. Joining us in studio is Stephen Vladeck. He's a professor of constitutional law and federal jurisdiction at American University's Washington College of Law. Stephen Vladeck, thank you for joining us.

  • 13:08:09

    MR. STEPHEN VLADECKThank you, Kojo.

  • 13:08:09

    NNAMDIAnd I know a lot of you have questions and opinions about this. You can start calling now at 800-433-8850 or by going to our website, kojoshow.org, sending us an e-mail to kojo@wamu.org or a tweet at kojoshow. Stephen, as we speak, Julian Assange, the founder Wikileaks, is in police custody in the U.K. He's been denied bail. He's facing possible extradition to Sweden on sex crimes, but everyone seems sure that the real legal showdown will come from Washington. The U.S. has yet to request extradition, but assuming that it did, the first threshold question would involve extradition law, not national security or first amendment questions.

  • 13:08:53

    VLADECKThat's right. And I think you know the charges that he's currently facing in Sweden are, in some ways, a useful stall tactic for the administration because it gives the Obama administration, you know, Attorney General Holder a little more time to decide what exactly they want to do. The charges in Sweden may hold up, they may not. But until that's resolved, I think there's room for the administration to figure out what to do.

  • 13:09:17

    VLADECKIf it decides that they want to go after Assange here, extradition will be complicated. I mean, the U.S./U.K. extradition treaty has an exception for what the treaty calls political offences and I think Julian Assange would certainly claim that the offences under which he'd be tried here are indeed political offences. So I think it's a long time and long road of legal maneuvering before Julian Assange ends up in a U.S. courtroom.

  • 13:09:41

    NNAMDIThe agreement with the U.K. does not allow for people to be handed over for purely political reasons?

  • 13:09:48

    VLADECKThat's right. And I think the question would become, you know, if you had an argument in a British court, whether the U.S. seeking Assange's extradition because of espionage is in fact a political offence or not. And one can only imagine what that kind of legal argument would look like in a London courtroom.

  • 13:10:05

    NNAMDIDo you think it is a political offence or not? You can call us at 800-433-8850. Or do you see it as some kind of criminal offence? Do you, in fact, see it as espionage or a political offence? 800-433-8850 is the number to call. One of the main laws in question is a 93-year-old statute called the Espionage Act. It was written in 1917 in the midst of the first World War and many experts have said it's become really an outdated law. What does it actually say, Stephen Vladeck?

  • 13:10:38

    VLADECKWell, it's a very sweeping statute and partly because it was written 93 years ago, it doesn't draw many of the distinctions that we might expect a more modern, sort of more carefully written statute to draw. The statute, for example, makes virtually no distinction between the person who actually steals the information from the government and the downstream folks who redistribute it, including Julian Assange.

  • 13:11:00

    VLADECKThat raises a really hard question. At what point does it stop? You know, if Julian Assange is liable under the Espionage Act, why isn't The New York Times? Why aren't the readers of The New York Times who download the cables off their computers? Now, I think the answer is politically the government would never go after those folks. But that's a political argument, not a legal one and I think that's part of why this case is so fraught with legal and political difficulties.

  • 13:11:21

    NNAMDIThere's a bigger question here and you just implicitly raised it and it comes down to whether or exactly where Assange did anything wrong. The consensus among some journalists and certainly politicians and pundits seems to be that he acted, well, recklessly and that he put lives in danger and that he is pursuing a vendetta against the United States.

  • 13:11:42

    VLADECKAnd he may have. I mean, I think you know, but in that sense, he did it the same way that The New York Times was alleged to have done so when they published details on the warrantless wiretapping program in 2005. When The New York Times and The Washington Post, you know, published the Pentagon papers in the 1970s. So, you know, I don't know that we can say for sure that Assange didn't do something that was wrong. But I don't know that it's so much worse than things that in the past we have, I think, concluded as a society should not be prosecuted. And I think that's why this case is so difficult.

  • 13:12:13

    NNAMDIAnd I guess wrong is really a moral judgment here because when one looks back at the Pentagon papers, for instance, the judgment about whether or not that was wrong has -- depends a lot on exactly where you find yourself on the political spectrum.

  • 13:12:27

    VLADECKWell, where you stand has a lot to do with where you sit, right? And so I think a large part of the problem, in this case, is that folks look at many of these cables and say, well, wait a second. I don't understand why this information was classified. But that's sort of, you know, a circular argument. You shouldn't -- if the whole theory of the statute is that you cannot disclose classified information, you know, the notion that Julian Assange thinks it shouldn't be classified, I think, is not exactly a legal argument that's going to work.

  • 13:12:51

    NNAMDIThis is potentially troubling legal ground especially for the media. Journalists, even those now screaming for blood as we mentioned earlier, have long relied on these very protections built into our system.

  • 13:13:02

    VLADECKThat's right. And I think, you know, that's why this case is such a tricky one because for the government to go after Assange would be precedent-setting. In the 93-year history of the Espionage Act, there's one case on record, one where the government went after anyone other than the first party who stole the information. And that case was five years ago and it collapsed. And part of why is because of this concern that once you go one step past the leaker or the spy, where does it stop?

  • 13:13:29

    NNAMDIWe're going to get an opportunity to talk about that case in a second because I think Toureq in Spring Fields, Virginia's, question will lead us to it. Toureq, you're on the air. Go ahead, please.

  • 13:13:39

    TOUREQGood afternoon gentleman. Hi Kojo. You notice something (word?) since Wikileaks...

  • 13:13:48

    NNAMDIUh, Toureq? I can't hear you anymore,. You -- go ahead.

  • 13:13:52

    TOUREQDo you hear me?

  • 13:13:52

    NNAMDIYes, we hear you now.

  • 13:13:52

    TOUREQOh, okay. Everything is -- since the Wikileaks released, we read it and we hear it, it's about Iran. Everything is about Iran. Everybody is against Iran, about Iran nuclear. We never hear anything about Israel. We never hear anything about a recent attack in Gaza, in Beirut, which is Wikileaks talking about the last three years or four years.

  • 13:14:14

    NNAMDIWell, I've got to tell you it depends on which media you are reading, Toureq. If you go to the website, allafrica.com for instance, you will find everything that was said about an African country in Wikileaks. If you go to other places like the Guardian, itself, newspaper you can put in key words and find out whatever you want to find. If you want to talk about what you see the American mainstream media is focusing on, and that may be Iran, that's one thing. But there is no lack of access to finding out what's going on in the other places.

  • 13:14:54

    NNAMDIBut since you raised the issue of Israel, it gives me the opportunity to ask Stephen Vladeck about that other case, because, as you mentioned, Stephen, in the history of the Espionage Act, the U.S. has only tried to prosecute one case involving a middleman and that case has to do with the American Israel Public Affairs Committee, AIPAC. Could you explain?

  • 13:15:01

    VLADECKSure. So this was a case that was brought in 2005 actually here in the Washington area. It was brought in the Eastern District of Virginia and the charge by the government was that these two lobbyists for AIPAC had basically facilitated the disclosure of classified information from a government employee to the Israeli government. And these two AIPAC lobbyists, Rosen and Weissman, were prosecuted under the Espionage Act.

  • 13:15:27

    VLADECKThe district court was very concerned about the first amendment issue and about the notion that passing on information that has already been stolen from the government is, in some ways, just a form of speech. And so to alleviate that concern, it read into the statute a heightened showing requirement that the government has to show that the defendants knew more about the illegality of what they were doing than the typical case.

  • 13:15:57

    VLADECKOnce that standard was basically agreed to by the court of appeals, the government dropped the case. They said we couldn't meet this higher burden. And so the one example of an Espionage Act prosecution of a third party ended really in failure from the government's perspective, proving yet again that the Espionage Act is, for lack of a better term, a haze of uncertainty.

  • 13:16:10

    NNAMDIThis is why the Attorney General Eric Holder and others may need more time than they can get to look at exactly how to pursue this. Toureq, thank you very much for your call. Before this whole controversy, Stephen Vladeck, many researchers and journalists and open government activists complain of a culture of secrecy emerging in U.S. national security and diplomacy, that there was too much of a tendency to over-classify and make information out of bounds that shouldn't be out of bounds. What happens when you have information that is classified, but shouldn't be? Is there a danger that this whole story will end up undermining open government?

  • 13:16:46

    VLADECKIt might. I mean, I think those concerns have been well-documented and I should say they're not partisan. I mean, I think we've heard this from folks all along the political spectrum that we have a tendency to over-classify. Part of the problem, Kojo, is, I think, there aren't enough mechanisms in the law right now to check over-classification. There are very few opportunities for government employees to basically complain that information or programs that they are involved in are classified when they shouldn't be. And the consequences for complaining when you're wrong can be very deleterious to an employee's career. More importantly, there's no defense whatsoever to a public disclosure of information that you think is wrongly classified simply because you thought it was wrongly classified.

  • 13:17:28

    VLADECKAs long as it is, you know, as long as it is stamped Top Secret, it doesn't matter if it's, you know, what President Obama had for lunch yesterday. You know you're going to be liable under the Espionage Act for disclosing it.

  • 13:17:38

    NNAMDI800-433-8850 is the number to call. Do you think that Julian Assange should be prosecuted in the United States and if so, how would you suggest that it be done? 800-433-8850. Here is Vince in Fredericksburg, Va. Vince, you're on the air. Go ahead, please.

  • 13:17:55

    VINCEOh, hi Kojo.

  • 13:17:57

    NNAMDIHi Vince, go ahead.

  • 13:18:00

    VINCEOh, my question, well, my comment is why do we have to have a -- that the governments have secrets to begin with really?

  • 13:18:11

    NNAMDIWell, I suspect that the answer would be that it has a lot to do with national security, but you have opened the very important window or door. And that is, Stephen Vladeck, many of the problems with the Espionage Act come down to history and chronology. When it was passed back in 1917, there was no strong precedent in U.S. history for strong first amendment rights of the press. There was no real regime for classifying documents.

  • 13:18:39

    VLADECKYeah, I mean, you know, what we think of as the strong first amendment today is actually a modern development and it begins, at the earliest, really at the end of World War I after the Espionage Act is enacted. So the Espionage Act itself was written during a period when we didn't think so highly of our right to express ourselves publicly. But more to the point, the Espionage Act was written before we even had terminology to describe what the government does when it keeps secrets.

  • 13:19:05

    VLADECKYou know, the first executive orders dealing with classification are promulgated during World War II by President Roosevelt and then by President Truman. And so I think, you know, part of the issue here is that we may be able to find common ground that the way to build a nuclear reactor or the way to, you know, miniaturize a warhead on a missile are things that can be kept secret. But there's so much room at the margins.

  • 13:19:29

    NNAMDISo when this act was written in 1917, there was no such thing as a classified document?

  • 13:19:34

    VLADECKThat's right. And the act doesn't use the phrase classified information because it didn't exist. Indeed, the Espionage Act, as initially written, refers repeatedly to information pertaining to the national defense, which courts have since construed to mean classified information. But it's not even necessarily clear that that's what was meant by the drafters of the statute. Indeed, the Wikileaks case is another sort of variation on that. Is a diplomatic cable related to the national security if it's really simply a statement that the Interior Minister of Afghanistan is corrupt or a particular political situation is difficult? Is everything about National Security? Because if everything is, then I suspect nothing is.

  • 13:20:15

    NNAMDIIf you look at what the Obama administration has said about Assange, there are a lot of references to stolen information, not as many references to leaded documents and that distinction, apparently, is not a mistake.

  • 13:20:30

    VLADECKThat's right. I mean, so one of the many ways in which the Espionage Act is tricky is it distinguishes between documents and information. And believe it or not, there is a higher showing required to prove that someone violated the Espionage Act for retransmitting information, then for retransmitting a document. And that begs the question, in this digital age, what is the difference between information, the intangible thing, and documents that although they're tangible, you know, they're tangible in the way that we forward e-mails to each other.

  • 13:21:00

    NNAMDIOn to Sue in Silver Spring, Md. Sue, you're on the air. Go ahead, please.

  • 13:21:06

    SUEHi, good morning. Thank you. Well, I'm concerned about Senator Lieberman's role in this whole drama where he pressured Amazon.com to take Wikileaks off their server and then Paypal has now refused to process donations to Wikileaks. And to me, the role of the government is not to censor what information we're allowed to see on the internet and I'm really disturbed by what Senator Lieberman has done.

  • 13:21:33

    NNAMDIIn addition to which, MasterCard and others are no longer taking -- accepting donations for Wikileaks. But what's next? You say, Stephen Vladeck, there were already under the radar decisions or discussions going on before this story about reforming the Espionage Act.

  • 13:21:49

    VLADECKWell, I think, what's -- if there's one thing that's unfortunate about the story, there were discussions underway on Capital Hill about modernizing the Espionage Act, about constraining its scope, about clarifying who it applies to and in what situations. Unfortunately, my suspicion is that the reaction we'll get now will be an overreaction. And instead of trying to circumscribe the scope of the statute, we're going to see more pushes by folks like Senator Lieberman, by the new majority in the house, to clarify that the Espionage Act does apply as expansively as it could be read to. And I think that would be unfortunate if that is, you know, the net result of all of this.

  • 13:22:27

    NNAMDIUnfortunate, especially for those of us in media?

  • 13:22:30

    VLADECKPossibly. I mean, I dare say that the drafters would try to find a way to carve out the media, but, you know, Kojo, I don't know how you write a bill that distinguishes between folks on the radio, between the New York Times...

  • 13:22:43

    NNAMDIBloggers?

  • 13:22:44

    VLADECK...and between bloggers. You know, and at the end of the day, that's really what Julian Assange is. He is a, you know, very famous, very, you know, resourceful blogger. And I think that distinction is one that is going to be very difficult to draw in the statute and that's why legislative reform, at this point, could be very problematic.

  • 13:23:03

    NNAMDISue, thank you very much for you call. We move on now to Charlie in Baltimore, Md. Charlie, you're on the air. Go ahead, please.

  • 13:23:10

    CHARLIEThanks so much for taking my call. But what I wonder is why they're pursuing this -- the whole espionage thing when it's so cloudy, when there seems to be established case law in the case of, for instance, music that is downloaded illegally. Here we have information and cables that are clearly the property of the United States of America. Despite Mr. Assange's assertions that they should belong to the people, they do, in fact, belong to the United States of America and he is profiting from distributing stolen material.

  • 13:23:47

    NNAMDIStephen Vladeck?

  • 13:23:49

    VLADECKWell, I think that's a great point. I think the issue there is we come back to the distinction between the person who actually steals the information. In this case, Private Bradley Manning and those who are the sort of downstream disseminators of the information. So in the pirated music example, you know, it's the person who illegally downloads the music who is on the hook. Here there's no question that Private Manning is in very deep trouble and could be, you know, sent away for a very long time.

  • 13:24:15

    VLADECKIt's harder, I think, to go after someone who only receives the documents downstream for theft or for conversion of property -- is actually the other charge that the government has traditionally used in these kinds of espionage cases, when there's no real proof that Manning was enticed to do this by Assange, that Assange put Manning up to it. You know, if he's only the sort of beneficiary after the fact, I think that may help to explain, Charlie, why you haven't seen this push towards these statutes instead of espionage.

  • 13:24:45

    NNAMDICharlie, thank you very much for your call. And finally this, can the fact that Mr. Assange seemingly solicited the leaking of information be instrumental in prosecuting him, i.e., acting as an accomplice to a crime?

  • 13:24:58

    VLADECKI mean, this goes back, I think, to Charlie's question, you know. There is this civil war era statute, if we want to get into even older statutes, about the conversion of government property that we actually used in the 1980s to go after someone who sold information about a new Soviet aircraft carrier to Jane's Defense Weekly. And the whole theory there was exactly this, was that there was, basically, a solicitation for the conversion of government property. I think the issue here is -- it's not that case because here Assange is more like Jane's Defense Weekly than like the actual defendant in that case, United States versus Morrison.

  • 13:25:34

    VLADECKAnd so, you know, it's a much clearer case, at least textually, to go after Assange under the Espionage Act than to try to say he was an accomplice or he solicited some other crime without clearer proof that there was actually some preexisting relationship between him and Bradley Manning.

  • 13:25:49

    NNAMDIStephen Vladeck is a professor of constitutional law and federal jurisdiction at American University's Washington College of Law. Thank you for joining us.

  • 13:25:56

    VLADECKThank you, Kojo.

  • 13:25:57

    NNAMDIWe're going to take a short break. When we come back, the social effects of alcohol addiction. A new study in the British Medical Journal, Lancet, says it is worse than heroin or cocaine. I'm Kojo Nnamdi.

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