Balkinization  

Tuesday, January 04, 2011

Why the U.S. Shouldn’t Prosecute Assange–For the U.S.'s Sake, Not His

Marvin Ammori

I decided to write up some thoughts on Wikileaks.

Many of our nation’s landmark free speech decisions are not about heroes–several are about flag-burnersracists, Klansmen, and those with political views outside the mainstream. And yet we measure our commitment to freedom of speech, in part, by our willingness to protect even their rights despite disagreement with what they say, and why they say it.

The story of Wikileaks publishing U.S. diplomatic cables has become the story of Julian Assange: is he a hero or villain, a high-tech terrorist or enemy combatant? Should the U.S., which may have already empanelled a grand jury in Virginia, prosecute him as a criminal under the Espionage Act of 1917 or under the computer fraud and abuse act?

Though I have spent years advocating for Internet freedom, I don’t think Assange is a hero for leaking these diplomatic cables.  According to plausible reports, the leaks have harmed U.S. interests, made the work of U.S. diplomats more difficult, likely endangered lives of allies, and may have set back democracy in Zimbabwe and perhaps elsewhere.  Even some of Assange’s friends at Wikileaks are doubting Assange’s heroism: a few left him to launch a rival site and to writetell-all book.  Whatever the harms of secrecy and over-classification, Assange’s actions have caused tremendous damage.  No wonder polls show nearly 60% of Americans believe the U.S. should arrest Assange and charge him with a crime.

My initial reaction was similar.  I thought that if a case could be made against Assange, one should be made.

But, as time passed, the political and legal downsides of prosecution came into clearer focus, and I am rethinking that initial reaction.  Despite still believing Assange’s actions have been harmful, I have now come to the opposite conclusion—not for the benefit of Assange, but for the benefit of Americans and of the United States.

Prosecuting Assange could do more harm than good for our freedom of the press and would inflict further harm on diplomatic effectiveness.  Despite the appeal of prosecuting Assange, it is not worth the cost.  We will not get the cables back.  We will not deter aspiring Wikileakers, as both our allies and our enemies know.  We will, as Dean Geoffrey Stone has best articulated, likely sacrifice established principles of freedom of the press in doing so.

Here are some thoughts on why we should think twice about prosecuting Assange, categorized by harms to the U.S.’s freedom of the press and then harms to America’s diplomatic effectiveness. And, in advance, I thank the many scholars, policy experts, and friends who took the time to give me thoughts on earlier drafts of this post.




Harms to American Freedom of the Press

1. The balance between information security and freedom of the press generally permits both government secrecy and publication.

Geoffrey Stone, a leading speech scholar at the University of Chicago, recently explained to Congress how the Supreme Court has struck that balance between transparency and press freedom.

Transparency is not an unqualified good. While some information is overclassified, too much transparency has its own problems, as professors Larry Lessigand Tim Wu, among others, have pointed out.  Keeping some information private is sometimes essential for government and diplomacy.  Releasing information can be harmful; for example, releasing the names and addresses of all our covert spies or the world’s critical infrastructures harms US interests.

As Stone explains, the Supreme Court has recognized that government may overstate the harms of publication and underestimate the harms of secrecy.  The judiciary is not well equipped to second-guess this bias on a case-by-case basis.  So the Court struck this balance: government is allowed constitutionally to over-protect information and to secure it, while the press is perhaps over-protected to publish leaked information.  This is an obviously imperfect mechanism, but we live in an imperfect world, and other options are even more imperfect.

As a result, the burden of securing information falls on the government, not the press.  Jack Goldsmith reaches the same conclusion:
It is also important to remember, to paraphrase Justice Stewart in the Pentagon Papers, that the responsibility for these disclosures lies firmly with the institution empowered to keep them secret: the Executive branch.

This is not to blame the Executive branch; it is just to emphasize that securing information is the usual remedy to balance transparency, necessary secrecy, and a free press.  Prosecuting publishers and perceived journalists generally is not.

2. If the government can prosecute Assange for publishing illegally obtained information, then it can prosecute most journalists.

According to standard First Amendment doctrine, the press generally can publish truthful information leaked to the press, even if someone else acted illegally to obtain the information.  The Supreme Court said as much in Bartnicki v. Vopper and the Pentagon Papers case.

Administration officials and congressional staffs often leak information to the press for their own purposes—though they often leak to “friendly” reporters they hope to influence.  If the government could punish journalists for publishing classified information, Bob Woodward would be sitting in solitary confinement for the top-secret leaks in his last book alone.  Perhaps because of these realities, in 2000, President Clinton wisely vetoed a bill that would have criminalized all unauthorized disclosures.

Despite Woodward’s inside track to potentially over-classified information, Assange may be no less a journalist than someone like Woodward.

3. Assange looks more like a 21st Century journalist than a terrorist.

The First Amendment protects a lot of potentially harmful speech, but does not and should not protect all speech. Some speech that encourages criminal behavior—like detailed “how-to” instructions on how to murder people or manuals for mixing homemade explosives—rightfully receive little First Amendment protection. Are Assange’s publications really not journalism, but more like this unprotected speech?

In thinking about this question, I have found Eugene Volokh’s analysis of “crime-facilitating speech” immensely helpful. I will not summarize his 100-page argument, which examines many speech areas. I will simply note that he ends up proposing a standard that, while speech-protective, strikes a balance that captures truly dangerous speech unworthy of protection. For him, this category includes speech, if published, with almost no non-criminal value or leading to plague or atomic explosions. Nobody has made the case that Assange’s speech falls in those categories.

Wikileaks looks less like a hit man manual and more like the journalism of tomorrow (or yesterday). Dozens of traditional and new publications (and TV channels) have experimented with user-generated news content, including uploaded video and stories. Assange has recently been clothing his actions as journalism. Rather than engaging in a document dump, Assange has released less than 1% of the 250,000 cables, and is working with several newspapers (The Guardian, Der Speigel, El Pais, Le Monde, the New York Times) to vet and redact every cable before publishing it.  His practices and those of journalists are converging. As online news models evolve and change, prosecuting Assange may set a precedent for limiting some beneficial experimentation with these new models.

4. If the government can prosecute Assange for “conspiring” with his source, all journalists are conspirators.

According to Justice Department leaks to the New York Times, the Justice Department is considering bringing a case based on Assange conspiring with his source.  As law professor Jack Balkin observes, if Assange conspired, many journalists "conspire" with their sources, sometimes over drinks at the Mayflower Hotel, sometimes by email. Even if the standard for conspiracy is higher than “doing drinks” at a hotel, it would sweep up at least some journalists, who no doubt worked with their sources as closely as Assange did with his source. Such conspiracy claims could burden freedom of association, including anonymous association, which receives constitutional protection.

5. If the First Amendment doesn't protect Wikileaks, it doesn't protect The Economist or Roberto Benigni.

Some argue that Assange has no First Amendment right because he is an Australian non-resident. But, whatever Assange’s rights as speaker, Americans have rights as readers. The Supreme Court has held (in Lamont v. Postmaster General) that Americans, like Wikileaks defender Ron Paul, have free speech rights, including the right to access unprotected international speech.

Taking it one step further, to extradition and arrest, I doubt the U.S. government could arrest executives at publications like The EconomistThe GuardianBBC, and Le Monde, or movie makers like Roberto Benigni, without burdening the speech rights of American citizens.  As a practical reality, if not as a matter of formal doctrine, prosecuting popular foreign speakers burdens American speakers.  Plus, prosecuting Economist.com for something NYTimes.com can publish would arguably violate some of our trade commitments.  And do we want to encourage China to use the same logic of extradition and prosecution against American and European publications, websites, and executives that allegedly violate Chinese law?

6. If the government can pressure private companies to silence Wikileaks, it can silence anyone.
Senator Lieberman’s staff seemed to apply some governmental pressure to Amazon, which found a violation of its broadly worded “terms of service” to remove Wikileaks from Amazon servers. (The administration has not applied similar pressure, to my knowledge.)  Paypal and Mastercard refused to process donations, applying a standard far lower than the standards applying to government.

I agree with those who view these moves as an Internet “tax on dissent.” To put this in perspective, what if Amazon interpreted its terms of service to kick controversial politicians off its servers?  What if Paypal stopped processing payments to controversial newspapers, political blogs, or … Klansmen and flag burners?  What if Mastercard, after receiving calls from a Senator, refused to process donations to the Palin or Romney campaigns, while processing donations for the Obama reelection?  The affected speakers would be harmed and would have no legal means to defend themselves by challenging the government’s attempt to silence them.

The New York Times has raised concerns about these actions: “A handful of big banks could potentially bar any organization they disliked from the payments system, essentially cutting them off from the world economy.”

U.S. administration officials should not help set a dangerous precedent of enlisting private parties to kick the legs out from political opponents.  Again, what would we think if the Chinese government engaged in similar activity with their financial intermediaries and their disfavored sites?


Harms to American Diplomacy

1. We will possibly fail to convict Assange, while handing autocrats an argument to justify politically motivated prosecutions.

It doesn’t really matter if the (dedicated, brilliant) lawyers at the Department of Justice come up with a compelling case that has eluded law professors like Jack BalkinJack Goldsmith, Geoffrey Stone, and Steve Vladeck.

As these professors and others have noted, the legal case faces several potential hurdles: First Amendment issues, Espionage Act issues, conspiracy law issues, and extradition law issues for “political” crimes.

If the lawyers at Justice build a credible case, what follows will be a highly controversial and politically charged extradition proceeding that will draw out negative consequences for our foreign policy and international credibility—regardless of the ultimate outcome.

And then, at the end of this controversial process, after months or years, Assange comes to trial in a U.S. court.  Then, even in a best-case scenario, the case might fail for any of a dozen reasons.  Even if a conviction is achieved, at what cost?  And to what end?  Will a single piece of data be recovered?  Will the martyrdom of Assange deter others from following in his footsteps? The long-term impact of this effort will likely come out badly for our nation, no matter what the outcome of the legal proceeding.

2. We will look weak and hypocritical, affecting our moral standing abroad and at home. Could we really tell autocrats in other countries that they shouldn’t prosecute journalists or political critics? Perceptions will be a key factor.  Prosecuting Assange would validate an international perception, whether accurate, among allies and foes alike that America operates on a double standard—a perception the Obama administration has taken great pains to reverse.  The decline in credibility triggered by apparently validating that perception will ripple across our international relations. As Clay Shirky notes, autocrats will certainly use our actions to justify political prosecutions.

Conclusion
I could be wrong; this controversy does not have easy answers.

I end up, with Assange, where I do with racists and Klansmen. Despite the damage he has caused, the costs to our nation of prosecuting his speech outweigh the benefits. I hope our nation’s lawyers consider the merits of this position in determining how best to respond to Assange and Cablegate.

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