US Prosecutors Have a Sealed Indictment On Assange, Say Leaked Files

beaverdownunder writes with news from The Age that "Leaked e-mails from private U.S. intelligence agency Stratfor indicate that American prosecutors have had a sealed, secret indictment drawn up against Julian Assange as early as January, 2011." From the article: "The news that U.S. prosecutors drew up a secret indictment against Mr. Assange more than 12 months ago comes as the WikiLeaks founder awaits a British Supreme Court decision on his appeal against extradition to Sweden to be questioned in relation to sexual assault allegations. Mr. Assange, who has not been charged with any offence in Sweden, fears extradition to Stockholm will open the way for his extradition to the U.S. on possible espionage or conspiracy charges over WikiLeaks' publication of hundreds of thousands of leaked classified U.S. reports."

Comments

I still don't get it

[zero.kalvin]

He did not steal the files! He is not an american citizen! And when he did obtain the files, he was not on American soil! And he is not bound by any law prohibiting the distribution of these files, and certainly not under any NDA. So the question is what kind of justice mokery they came up with ?

Re:I still don't get it

[FriendlyLurker]

Dont let facts, or the law, get in the way of a good revenge hanging.

it is impossible to invent theories to indict them [Assange/Wikileaks] without simultaneously criminalizing much of investigative journalism

The emperor reacts violently when without clothes.

Re:I still don't get it

[Anonymous Coward]

Nope.

Re:I still don't get it

[Hatta]

Criminalizing investigative journalism is exactly what they intend to do.

Re:I still don't get it

[Dhalka226]

And he is not bound by any law prohibiting the distribution of these files

I don't think that issue is as clear as you do. There's little stopping Congress from passing a law granting themselves some sort of worldwide jurisdiction (assuming the law would be otherwise valid). The better question is whether any of the rest of the world would care. If they refuse to extradite, the point is moot.

In this particular case, I see little reason not to extradite. His actions would be illegal pretty much everywhere, which is one major factor to the extradition process. Prosecutors could simply assure they will not seek the death penalty (assuming it's even possible; it depends what he would be charged under) to defuse another. Though it's debatable on a philosophical level, the vast majority of these nations also recognize our legal system as fair and capable of a fair trial, defusing another. If the US really does have a sealed indictment, it's already declared that he has, in fact, engaged in behavior that can be reasonably construed as breaking US law insofar as being deserving of bringing him to trial. I see no reason for other nations to second guess that declaration as a matter of policy, which means they would be making exceptions for Assange and quite frankly opening themselves up to problems in the future in terms of equal protection within their jurisdictions.

How did they get the indictment? I don't know. We haven't seen it, obviously, assuming it even exists. We don't know what it's for, so it's hard to even speculate. I've seen some interesting theories with regard to the Espionage Act. Quoting a law professor's interpretation of the act, it "prohibits the willful communication, delivery, or transmission to 'any person not entitled to receive it' of 'any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.'" That certainly seems to apply, at least superficially enough to bring to trial. Assange's propensity for running his mouth and making comments about how he hopes to bring governments down makes it awfully hard to backtrack on his intent as well. You can probably manage jurisdiction pretty easily since the information was originally hosted on, and thus disseminated from, Amazon servers -- Amazon being an American company and the servers likely, at least in part, on American soil. And that's just one way. (The whole article is interesting if you want to read it. You can see each parties' biases shine through, but they all bring up a lot of good points that would be raised at trial.)

I'm not making any judgments about the case itself, by the way. I'm simply saying that whether or not he should be brought to trial or should be extradited is not nearly so simple an issue. In fact he probably should be; I think the burdens on that end have been met. The better questions are whether he should be prosecuted and if he is, if he should be convicted.

If it goes to trial, there are a ton of huge issues. First Amendment protections; the definition of journalists; the requirement of intent; application of not only the law but First Amendment protection itself to foreign nationals (on foreign soil); the very definitions of espionage themselves. I think he has a lot of damn good defenses -- probably more than enough to generate reasonable doubt. I simply believe they should be adjudicated in the United States if you United States makes those allegations. The other burdens to extradition are met in my mind.

Re:I still don't get it

[Anonymous Coward]

Should Terry Jones be extradited to Afghanistan for burning the Quran?
Any arab would say that burning a Quran should be illegal pretty much everywhere.

Re:I still don't get it

[Hatta]

Your argument, however, is nonsensical. Being a US citizen doesn't mean you're allowed to go to Germany and break their laws

I bolded the relevant point. Extraditing Assange to the US for breaking US law is like extraditing one of use to Germany for Holocaust denial. You don't have to like the act or the actor to understand that such an extradition would be unjust.

Re:I still don't get it

[Anonymous Coward]

Your argument fails. To continue your German theme, if you are in the USA and you buy some Nazi memorabilia, you have probably committed a crime in Germany but you have not committed any crime in the USA. You are not a criminal for buying the items, even if you subsequently go to Germany, because when you bought them you were not subject to German law. Even if you bought the items from a German you are free and clear (although the German guy may not be).

A person cannot be expected to know the law in all 200 or so countries and abide by them all. Much as many USA folks seem to believe otherwise, US law is not enforceable worldwide.

Re:I still don't get it

[Hatta]

You're right. Manning did aid the enemy. Anyone who cares about freedom of information, exposing war crimes, and holding the powerful responsible for their atrocities is now an enemy of the United States. If that's treason, thank god for treason.

Re:I still don't get it

[starcraftsicko]

That's awful shortsighted.

Manning worked for the US military and eventually made it his purpose to subvert it. He entered the military voluntarily - the US does not have a draft and Manning was not part of a social class that had no options. He abused his position, broke his oath, and acted to place materials whose secrecy he was supposed to protect... into the hands of enemies (and friends, frenemies, neutrals, and basically anyone who cared to look). Frankly, he deserves what he gets.

There is a larger debate that should be had about how much of that information really should be secret, and if so from who, and then for how long. Even if we assume that Manning was doing 'the right thing by [caring] about freedom of information, exposing war crimes, and holding the powerful responsible for their atrocities , his acts are those of a vigilante. Thus, his methods subvert his cause.

If he did what he did and blindly uploaded to wikileaks... well then that's the end of it. He's a naive fool who thought his cause of the week was worth the risk. Maybe he still feels that way?

If, OTOH, he asked wikileaks for help... if JA helped him decide what to steal; how to steal it; how to cover his thefts, etc... if JA persuaded Manning to do as he did... well then he may well have participated in a crime (conspiracy; accessory; theft of data; unauthorized access) at a US military installation. Why would we want to support this?

Investigative journalism is worthy of our protection. We need to ask and obtain answers to difficult questions. The "press" (at least in the US) really does have the right to ask the questions and to publish the answers. Determining what to ask, who to ask, and what to publish is the critical role of the 'investigative journalist'. So long as the journalist is simply asking questions and getting answers, they deserve our protection.

If the "journalist" stops asking questions and starts directing... [for lack of a better term, literally] agents to steal that data, we DO need to reassess their role. I'm not sure if JA crossed that line, but it seems reasonable that we should ask. Who watches the watchers, etc...

Re:I still don't get it

[TheCarp]

Why would we want to support it? Because fuck them. They have been stealing our money for years now, and mortgaging the country down the drain all to support a few overly wealthy people's financial interests and personal pipe dreams.

The moment he sent those files was the first REAL service he did for the american people, when he became a whistle blower and started sending out their secrets so we could see what they have been doing behind our backs while they steal our resources to do it.

Bradley Manning is a true American Hero. One of the very very few amongst a legion of slaves who do little more than what they are told while they pat themselves on the back for guarding freedom.

I hope they give him the Nobel Peace Prize, he is far more deserving than that war monger Obama.

Re:I still don't get it

[gambino21]

He abused his position, broke his oath

There is also a case that could be made that he had a moral and legal obligation under international law (to which the US is subject), to expose the crimes he saw.

There is a larger debate that should be had about how much of that information really should be secret, and if so from who, and then for how long.

I think this question is already answered that most, if not all, of the information leaked by Manning should not have been secret. From what I've seen the information falls into basically two categories, either it's innocuous, or it reveals immoral and often criminal behaviour. Neither of these should have been kept secret.

Even if we assume that Manning was doing 'the right thing by [caring] about freedom of information, exposing war crimes, and holding the powerful responsible for their atrocities , his acts are those of a vigilante. Thus, his methods subvert his cause.

Calling him a vigilante is quite a stretch since he didn't really punish anyone other than exposing what they were doing.

If he did what he did and blindly uploaded to wikileaks... well then that's the end of it. He's a naive fool who thought his cause of the week was worth the risk. Maybe he still feels that way?

I would hope that preventing war crimes and exposing government wrongdoing is more than just his "cause of the week". Maybe you believe the things he exposed were just not that serious? In my opinion killing civilians should be taken very seriously, and it should be punished appropriately instead of covered up.

Re:Where Does It Claim to Be Under US Law?

[zero.kalvin]

As far as I remember, Australia did look into this matter and they found out that he can't be prosecuted. Now if what you say is true, then this shit is getting out of hand. I mean how far they are willing to go with this? At one point they will transform him into a living 'martyr' and then they would have accomplished nothing by bringing him down. You do not eliminate your enemies by taking them down this way, you eliminate them by making them irrelevant.

Re:Not surprised

[Anonymous Coward]

He wouldn't be easier to extradite from Sweden than Great Britain. The EU has specific rules and regulations regarding extradition to a third-party non-EU state, and there is absolutely nothing (legal) that Sweden can do to extradite Assange to the US without first getting the consent of the UK's justice minister.

The only way that Assange could be extradited to the US is:
1) Sweden and the UK BOTH agree to honor an extradition request, through their justice ministers & courts, and that extradition is held up by the EU central courts;
2) Sweden decides to jeopardize its standing and decades of goodwill in the EU, as well as facing probable legal and economic sanctions, and hands over Assange without obeying the relevant EU laws to which it is a signatory

In case 1, why would the US wait for him to be extradited to Sweden, instead of just requesting extradition from the UK? They have to get the UK justice minister's approval either way, why add Sweden's system to the mix?

In case 2, this is so unlikely to happen that you might as well be worrying about a Martian invasion, as well.

The only people who think the Sweden extradition is some sort of grand conspiracy for the US to get its hands on Assange are... well, Assange, and a like-minded bunch of credulous simpletons (see the link provided by GameboyRMH for examples of like-minded simpletons.)

Re:Give him a journalism award

[betterunixthanunix]

I don't think of Watergate when I think of these leaks; instead, this is what comes to mind:

https://en.wikipedia.org/wiki/Pentagon_papers

We have been in this situation before, only we were less fascist back then.

Re:Follow the rules...

[dkleinsc]

Who are the tax payers who do? Can I get a list?

Well, the sad thing is that when US citizen Anwar Al-Awlaki was killed with a missile without the slightest pretense of judicial due process, most polls suggested that about 65% of Americans approved, including substantial majorities of self-identified Democrats and self-identified Republicans. So by all appearances, US citizens don't actually care about whether the government follows its own rules.

This is obviously a scary fact, but something many totalitarian rulers discovered a long time ago is that the masses are generally fine with government oppression so long as they keep them distracted (with TV, iPhones, etc), target minorities that are small enough that they can't fight back (e.g. Japanese-Americans or German Jews), or create a subset of the population that thinks of themselves as privileged (members of the political party, following an established religion, dominant racial group, etc) and will fight to defend that privilege. Hence this comment from the 1930's: "When fascism comes to America, it will be wrapped in a flag and carrying a cross."

Re:Follow the rules...

[dkleinsc]

The fact that there was a targeted killing of an American is extremely chilling, but, while we're not at war, what Al-Awlaki did was a matter of insurrection and treason under Article 3, Section 3.

Seriously.

The constitutional definition of treason continues to state: "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." That never happened in the Al-Awlaki case. Ergo, what happened to him was not a legal execution for the crime of treason. It also wasn't the legal killing of a criminal suspect resisting arrest (because there was no arrest warrant, he had no way to surrender himself to a missile, and there was no attempt to apprehend him).

And lest you think that what happened to Al-Awlaki was ok because the judicial system didn't apply, you're wrong again. Article 3 Section 2 spells it out quite clearly: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;" And of course the Fifth Amendment also makes it very clear that Al-Awlaki was entitled to a trial:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ... nor be deprived of life, liberty, or property, without due process of law"

The legal way to handle a case like this:
1. Prosecutors present the evidence against him to a grand jury.
2. Grand jury gives out an indictment, and a warrant for his arrest is issued.
3. US State Department talks to the Yemeni government (which the US has good relations with), requesting extradition of Al-Awlaki for trial for his crimes.
4. Yemeni army / police, possibly in cooperation with US forces, attempts to apprehend him. If he resists, they can respond with appropriate force.
5. He is tried for his crimes. Evidence is presented, his attorney has a chance to rebut the evidence, etc etc. If he is found guilty (by a jury, of course), he is locked up for the rest of his life and possibly executed.
What part of this couldn't have happened with Al-Awlaki? And incidentally, the argument that the warrant would have tipped him off also makes no sense, given that there was a case pending in which Al-Awlaki's father sued in federal court for an injunction that his son be tried before he was executed.

Here's what actually happened, according to the Obama administration:
1. Intelligence officials presented a case for killing Al-Awlaki to the Obama appointees.
2. The Obama press office gives out a bunch of information to the public about how Al-Awlaki is a Bad Person.
3. Obama orders a missile strike on Al-Awlaki.
Notice that Al-Awlaki never has a chance to confront or refute the evidence against him, and the only story the public has is the story the Obama administration wanted them to have.

And apparently Stratfor...

[FreeUser]

The only people who think the Sweden extradition is some sort of grand conspiracy for the US to get its hands on Assange are... well, Assange, and a like-minded bunch of credulous simpletons

Nice ad homenim against anyone who disagrees with your view. Extra points for arrogance.

Apparently your list of "simpletons" includes your buddies at Stratfor, who claim to have specific intelligence indicating that the charges in Sweden are trumped up:

Whatâ(TM)s even more interesting is that Farnham says thereâ(TM)s nothing to the claims that Assange sexually assaulted two women in Sweden. He says that a close family friend knows one of the women involved in the case and they said that itâ(TM)s just âoeprosecutors looking to make a name for themselves.â

Ref: http://www.webpronews.com/stratfor-email-leaks-reveal-u-s-plans-to-indict-wikileaks-founder-2012-02

This may be less about extraditing Assange to the US, and more about jailing him for any offense, real or imagined, and assinating his character. Which would still be a "grand conspiracy" of sorts, just not one focused on extradition: label him a rapist and jail him for trumped up charges without us breaking any of our laws. Makes a nice example (in the Mafiosa Dom sense of the word), particularly once you throw Manning's inevitable sentence into the mix.

The sealed indictment (if real) adds another sinister bent to the whole thing. Regardless, that a very nasty game is afoot here is not in doubt, what is, is exactly what the nature of the game is.

What role a secret indictment would play is interesting to speculate about (and that's all anyone can really do). Can Assange be rendered more easily from Sweden (or points en route), or is he more vulnerable to extradition as a convicted felon and ex-con after he's served jailtime on trumped up charges and his reputation is in tatters? Or is it just an Ace the government keeps up its sleave, on the off chance Assange someday has a layover on US soil, say, on his way to a speaking engagement in Rio?

Re:And apparently Stratfor...

[chrb]

None of the laws you cite are valid, because: Assange was not under the jurisdiction of the United States at the time. He can't commit treason against the U.S. in the same way that you can't commit treason against China. As far as I know there is no international law covering postal services - this is covered by cross-boder treaties like the 1874 Treaty of Bern, not the legal system. International law covers things like war and genocide, it does not cover privacy of communications. Revealing the identity of intelligence officers isn't an international law crime either, otherwise all those Americans who mirrored the MI6 agent list would have been prosecuted.

If the actions of Assange were a crime in the country that he was resident in at the time, then it is their responsibility to prosecure him, under their own laws. At the time of the release, legal commenters said that it would be very difficult to prosecute, because the leaks were in turn published by the New York Times: in effect, any action against Assange would also have to be an action against the NYT, which would bring up First Amendment issues. I also recall reading at the time that no U.S. newspaper has ever been prosecuted for publishing leaked information.