Is Julian Assange another Pentagon Papers case?

Guest Post by Alan Dershowitz

Image result for julian assange daniel ellsberg

Before WikiLeaks founder Julian Assange gained asylum in the Ecuadorian Embassy in London in 2012, he and his British legal team asked me to fly to London to provide legal advice about United States law relating to espionage and press freedom. I cannot disclose what advice I gave them, but I can say that I believed then, and still believe now, that there is no constitutional difference between WikiLeaks and The New York Times.

If The New York Times, in 1971, could lawfully publish the Pentagon Papers, knowing that it included classified documents stolen by Rand Corporation military analyst Daniel Ellsberg from our government, then WikiLeaks was entitled, under the First Amendment, to publish classified material that Assange knew was stolen by former Army intelligence analyst Chelsea Manning from our government.

So if prosecutors were to charge Assange with espionage or any other crime for merely publishing the Manning material, this would be another Pentagon Papers case with the same likely outcome. Many people misunderstand the actual Supreme Court ruling in the 1971 case. It did not say that the newspapers that were planning to publish the Pentagon Papers could not be prosecuted if they published classified material. It only said they could not be restrained — that is, stopped in advance — from publishing them. They did publish, and they were not prosecuted.

The same result would probably follow if Assange were prosecuted for publishing classified material on WikiLeaks, though there is no guarantee that prosecutors might not try to distinguish the two cases on the grounds that The New York Times is a more responsible media outlet than WikiLeaks. But the First Amendment does not recognize degrees of responsibility. Indeed, when the First Amendment was written, our nation was plagued with irresponsible scandal sheets and broadsides. No one ever described political pamphleteers Thomas Paine or James Callender as responsible journalists.

It is likely, therefore, that a prosecution of Assange for merely publishing classified material would fail. Moreover, Great Britain might be unwilling to extradite Assange for such a “political” crime. That is why prosecutors have chosen to charge him with a different crime: conspiracy to help Manning break into a government computer to steal classified material. Such a crime, if proven beyond a reasonable doubt, would have a far weaker claim to constitutional protection. The courts have ruled that journalists may not break the law in an effort to obtain material whose disclosure would be protected by the First Amendment.

The problem with the current effort is that, while it might be legally strong, it seems on the face of the indictment to be factually weak. It alleges that “Assange encouraged Manning to provide information and records” from government agencies. It alleges that “Manning provided Assange with part of a password” and that “Assange requested more information.” But it goes on to say that although Assange had “been trying to crack the password,” he had “no luck so far.” Not the strongest set of facts!

The first question is whether a legal theory based on such inchoate facts will be sufficient for an extradition request to be granted. Even if it is, a grant of extradition could be appealed through several layers of courts, which would take a long time. The second question is what would happen to Assange while these appeals proceeded. If he were locked up, he might well waive extradition in the hope of winning his case in the United States. The third question is whether American prosecutors might amend the indictment to make it legally and factually stronger and, if they did, whether they would do so before or after he was extradited.

The last question is whether Manning will testify against Assange. It is not clear whether prosecutors really need her testimony or whether they can make the case based on emails and other documents, but her testimony surely would be helpful if she were to corroborate or expand on the paper trail. President Obama commuted her sentence in 2017 and she was freed from prison, but she was jailed last month for refusing to testify against Assange before a grand jury. She could be given immunity from further prosecution and compelled to testify. But if she refused, would they keep her in prison?

There are lots of moving parts to this process, all of which make its outcome and timetable unpredictable.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.

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Donkey Balls
Donkey Balls

All we have to do is ask our resident expert. He goes by the name of Gilberts.

NoThanksIJustAte
NoThanksIJustAte

“Is Julian Assange another Pentagon Papers case?”

Nah. He’s just yet ANOTHER reason for blowing up Parliament.

Iska Waran
Iska Waran

What if Manning were to meet Assange in person and promise not to testify against Assange – but only if Assange boned Manning? I smell TV movie.

gatsby1219
gatsby1219

I heard JA has the flight list to orgy island….

Pequiste
Pequiste

VIdeos! We must have videos!

gatsby1219
gatsby1219

FYI, Manning is not a “her”, if anything it’s an “it”.

B.S in V.C.
B.S in V.C.

I refer to it as Bradley Manning in a dress, Bruce Jenner in a dress etc. etc. That’s as close as they will ever get me to using thier proper gender pronouns

Trapped in Portlandia
Trapped in Portlandia

Dershowitz is talking like the Rule of Law still exists in this country.

yahsure
yahsure

Nice police state with any whistleblowers getting the bone. Now asylum in embassies is dead also.

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