The Julian Assange Charges: Quash them in a US Court!

A new legal strategy from a US constitutional lawyer

[Image: a composite by the author of (left to right) Alexander Mercouris, Julian Assange (from 2010) and Bruce Afran.]

Published 2023-04-27

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Introduction

USA constitutional lawyer Bruce Afran authored an article for Consortium News which approaches Mr. Assange's legal predicament from the perspective of US law and particularly US constitutional law.

While listening to the 2 hour video of CN Live!'s interview of Mr. Afran and Mr. Mercouris (see Sources) I learnt something perhaps worth sharing. The question "Do US 1st Amendment protections apply to Julian Assange" falls afoul of what a philosopher may term a category error. The question itself is very poorly framed, and this is revealed by examining the 1st Amendment itself. As always, I quote from the Legal Information Institute of Cornell University's Law School, because the site is so good.

The US Constitution's 1st Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

So, to what or who does the 1st Amendment apply? To the Congress. It speaks of people regarding assembly and petitioning for redress, and of the 'press'. But the limitation is on Congress and laws it shall not make.

Thus, the 1st Amendment does not apply to Julian Assange, but it does apply to the Espionage Act and the Computer Fraud and Abuse Act under which he is charged.

Two Constitutional Attacks

Mr. Afran's article raises fundamental objections to the charges against Mr. Assange based on a combination of the 1st Amendment, 5th Amendment and the concept of extra-territoriality (applying national law outside the territorial boundaries of the nation). One core objection he raises is based on current constitutional legal understanding of the 5th Amendment, which reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Lets pull out the part to which Mr. Afran is referring and condense it:

No person shall be deprived of life, liberty or property without due process of law.

As with the 1st Amendment, who or what is constrained?

Who or what can deprive a person of life, liberty or property? That would seem to be the Executive Branch of government using law from the Congress which is constitutionally valid in cases submitted the courts of the Judiciary. So, there are potential restraints on all of the branches of government. And, these restrictions are universally applicable to any 'person', irrespective of nationality, place of resident etc..

The phrase "without due process" requires that a person can know before committing an act that it is potentially illegal. Mr. Afran uses the phrase "fair notice". Because the Espionage Act is so broadly worded it is not possible to know whether some action is illegal or not, and thus one has not been given this fair notice. Thus, the Act falls afoul of being unconstitutional for it denies this aspect of due process. In his article, Mr. Afran expresses the idea of “fair notice” which follows from the “due process” clause of the 5th Amendment as follows:

In the strict constitutional world that governs America’s criminal courts, Congress must give reasonable and intelligible “notice” so that the ordinary person will understand just what conduct will violate the law.

During the discussion Mr. Afran raises the Collateral Murder video. After its publication, the US Government stated that there was no problem for the actions depicted are within the Rules of Engagement, which are the legal limitations applied to the soldiers depicted. In response, Wikileaks published the Rules of Engagement to show that the soldiers did violated these restrictions. Wikileaks was then accused of violating the Espionage Act because this publication (in legalese, but not a quote) leads to an advantage to a foreign nation or an injury to the USA, and the Rules of Engagement or foreign advantage or injury are "relating to the national defence".

Bruce continues, because the Espionage Act is so broad it applies to many things which are considered normal activities of journalists, and thus it is a law which abridges the freedom of the press thus contravening the 1st Amendment. So, there are two fundamental constitutional attacks on these charges using the Espionage Act.

Extra-Territoriality

There is no specificity in the Espionage Act which declares a mechanism by which it has applicability outside of USA territory. Mr. Afran cites an example of USA law which does enable extra-territoriality, that of corruption and/or bribery of foreign officials. The mechanism to apply the extra-territoriality is that the funds must pass through or originate from, or end up with a USA registered bank, company or individual. No specific mechanism is declared in the Espionage Act which provides for extra-territoriality and Mr. Assange is neither a USA citizen, nor was in the USA when the alleged violations of the Espionage Act occurred.

In his article Mr. Afran quotes US Supreme Court judgements to document that extra-territorial application of US cannot be assumed, but must be explicitly worded:

the Supreme Court has long noted the presumption against extra-territorial reach of American laws unless there is “clearly expressed congressional intent” and has held that Congress must “unmistakably instruct” it has intended a law to reach people outside of the country

These and many other interesting points of both US law and UK legal doctrine are raised during the extended discussion. However, the most interesting point for this author is a novel approach to having the charges against Assange withdrawn or dismissed.

Quash the Charges

There is a US legal doctrine that someone who is fleeing the law has lost any right to seek to employ the courts to contest the validity of indictments laid against them. This, argues Mr. Afran, does not apply to Mr. Assange. He had not been in the USA for over 7 years at the time of being charged. Since then he's been denied any freedom of movement. So, he wasn't fleeing because he wasn't in the USA and he's been unable to flee anyway because he's essentially been under house arrest, the equivalent thereof in the Equadorian Embassy in London or incarcerated ever since. Thus, Mr. Assange is at liberty to contest the legality of the charges laid in a US court.

Thus, with appropriately skilled legal representation Julian can lodge an attempt to quash the charges based on the above described constitutional and extra-territorial grounds, amongst other potential grounds. Bruce Afran describes some of these other grounds in his article, including the the spying on Assange also violates the 5th Amendment’s “due process” clause. It would seem that with that skilled representation the chances of success are reasonable. As we shall see below, reasonable is quite good enough.

Getting into the Weeds

Bruce Afran mentions that the charges against Julian Assange are novel. By this he means that all previous cases of charges under the Espionage Act have been against government employees who have signed an agreement to care for classified information appropriately. We saw this used heavily against whistleblowers under the Obama administration (9 persons charged, when only two or three previous cases existed since 1917 when the Act was passed). The charges against Assange are the first time that the Act has been used against a third party and especially one who is an editor/publisher/journalist, i.e a member of the press.

This is important for two reasons. Firstly, rulings on any case which asserts that the charges fail to pass constitutional muster will set precident. Secondly, courts at the Appellate and Supreme level are almost forced to accept appeals because of the constitutional nature of the challenges and the novelty of the case.

Keep this in mind as we wander through what a old computer scientist would call a flow-diagram: what happens if this case to quash the charges based on their constitutional or extra-territorial failure is submitted to a Federal Court?

Now, IANAL (I am not a lawyer), but I presume that the court would invite the Government (the Department of Justice) to defend their charges and so a discussion of the constitutionality and the validity of the extra-territoriality of the charges would ensue. This in itself would raise the prominence of the case, and have a flow-on effect in London.

For a political case, public visibility is very important. Given the amount of work already done internationally and in the USA by Assange's supporters and family, further visibility would be of assistance. Mr. Afran asserts that the case is political because of the select prosecution. The government is not prosecuting the New York Times, or the New York Post, or Cryptome.org or many other organisations which have published the exact same materials. They are going after a single person who is less able to defend themself and which will cause less outrage than if the government charged the New York Times or all potential offenders under its jurisdiction.

The Legal Escalator, or an Inescapable Elevating Conundrum

Let's game what would happen in the courts.

Suppose the case is submitted at a Federal Court.

• If the government wins, then Assange's team appeal. As mentioned, the Appellate court pretty much has to accept the appeal. The visibility of Assange’s persecution is further raised.

• If Assange's team wins then the government either needs to drop the charges or appeal.

Either result is good for Assange. Visibility is raised, and as we shall see the government starts to back itself into a corner.

At the Appellate court the same conundrum meets the government.

• If the government wins, Assange's team appeal to the Supreme Court.

• If Assange wins, the government drops the charges or has to appeal to the supreme court.

If Assange's team win in the Supreme Court all manner of nasty things happen for the government. Minimally they have to drop the charges and could be accused of malicious prosecution. Damages may be sought etc.. This would not be a good look.

Much more serious is that this entire practice of charging third persons under the Espionage Act may be prohibited, and thus the threat is removed for journalists everywhere. (And this is why major publication and journalist unions everywhere should be supporting this case if it is begun.) The worst case for the governemtn is that the entire Act is deemed unconsitutional and cannot be used until it is re-drafted.

As an aside, some US representatives have already drafted an amendment to the Espionage Act which carves out exceptions for journalists. The admendment does not however address the extra-territoriality issue, to my knowledge.

Of course, the government may win all the way, but takes serious risks doing so. In any case, the visibility will become blinding.

Mr. Mercouris on The Duran coined a phrase the "Sanctions Escalator" when referring to the USA Government's use of economic sanctions against non-compliant governments. The case exemplar is the Russian Federation having now received 11 sanctions packages from the USA’s vassal the EU.

A submission of a case attacking the charges as outlined puts the USA government on a "Legal Escalator" which may end up at the Supreme Court while Assange remains in Europe. The government may see the preservation of the use of the threat of the Espionage Act as more important than revenge against Assange. This is the choice they will be forced to make.

Your author believes that a similar strategy, though not necessarily constitutional, could be applied to the CFAA charge. The weakness of that charge is that the government has no way to identify Assange in the chat logs, though Chelsea (formerly Bradley) Manning has admitted to being the remote identity. Additionally, the provision of a local administrator’s login account via cracking the accounts password would NOT have provided access to classified information, which Manning already had with his/her account. An expert witness at Magistrate’s trial also testified that it was impossible to crack the account based on the technology used by Microsoft at the time. Also, the character witness to accuse Assange of being a hacker, that of Sigi Thordanson, has recounted his testimony and been shown to be a serial liar, fraudster and a convicted paedophile. The CFAA charge of conspiracy to commit computer intrusion is extremely weak.

There is also a flow-on effect of the entire USA legal process in the UK. Any win by Assange’s team is devastating to the extradition request. Even with continuous losses it puts the English/British Judiciary under quit a lot of pressure. One surely cannot extradite someone based on charges the constitutionality of which is being contested in the nation which issued them!

Why someone did not earlier think of applying this pressure to the USA government, I know not. But, as they say, better late than never.

The Power of the Constitution

Mr. Afran makes several respectful recommendations to Julian's legal team about how various aspects of the ideas he has presented could be incorporated into their legal strategies. But, from where I'm looking, the attempt to quash the charges is likely to be faster than the tangled web of legal processes in which Julian is caught in the UK and then possibly the EU. They can, of course, work rather nicely in parallel.

It is here where Mr. Mercouris makes a few rather excellent points. The UK has no concept of a "Bill of Rights". Individual civil liberties are established under different statues and by way of a history of rulings in common law, or precedence. Similarly, the ideas of civil liberties or human rights were grafted onto the institutions established two core treaties which are the constitutional foundation of the European Union.

The case of the USA is very different. These first ten amendments, commonly referred to as the “Bill or Rights” are foundational. They are part of the initial body of law. They are part of the constitution, which overrides, where applicable, any law. And, it is possible for Mr. Assange to use the power of the US Constitution while he is still outside of USA territory.

Its not all good news, for the USA Government will certainly attempt to delay by any means possible. But, as I say, just lodging the challenge raises the case visibility, and as just about everybody agrees this is a political case and visibility is an excellent ally in political cases. And, it doesn't matter what happens in the courts, the USA Government is put on the "Legal Escalator".

I hope that the Assange family's legal team take heed of this potentially very useful legal strategy, as described by Mr. Bruce Afran and published by Consortium News.

Sources

1st Amendment Authorized Assange’s Possession of Classified Data, Bruce Afran, Consortium News, 2023-04-19

WATCH: CN Live! — ‘Assange v. the Espionage Act’, Lauria and Vos interview Bruce Afran and Alexander Mercouris, CN Live!, 2023-04-25

Related recent news/interview:

U.S. Actually Criticizes Russia For Jailing Journalists!, Aaron interviews Kevin Gozstola (who has just released his book on the Assange saga), Jimmy Dore Show, 2023-04-28

And, because it is "Dan Ellberg Week", here he is with Julian Assange at the Frontline Club in the UK in 2010

WikiLeaks- Julian Assange and Daniel Ellsberg in conversation, the title says it all, Frontline Club's youtube channel, uploaded 2012-08-08

Culture

As with some of my other Assange articles, an Australian song from the 1980s is selected, which is certain to have been heard by a young Julian.

Hoodoo Gurus - What's My Scene, Hoodoo Gurus (the lead single from their 1987 album Blow Your Cool!), their youtube channel, uploaded 2018-12-20

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