British legal analyst Alexander Mercouris joined U.S. constitutional lawyer Bruce Afran on CN Live! to discuss Afran’s Consortium News article on how the charges against Julian Assange breach the U.S. constitution. Watch the replay.
Imprisoned WikiLeaks publisher Julian Assange’s case raises troubling questions about whether the U.S. Espionage Act breaches both the First and Fifth Amendments of the U.S. Constitution as it is applied to Assange, argues constitutional lawyer Bruce Afran.
The Espionage Act unconstitutionally criminalizes the routine of journalism, he says. It ignores that the First Amendment by itself carves out an exception for a journalist possessing and informing the public about state secrets that reveal government crimes and corruption.
The phrase “relating to the national defense” in the Act is also so broad that publication of any government document that exposes military abuses could lead to prosecution. Nor does any clearer meaning attach to “injury to the United States” or “advantage of any foreign nation,” standards that could lead to conviction for publication of any government document touching on military or foreign policy.
Assange’s indictment should be quashed on the ground that the Espionage Act’s breathtaking overreach is an existential threat to First Amendment freedoms, argues Afran. For U.S. courts to do otherwise is to undermine due process and impose a vast threat to the First Amendment’s guarantees of a free press.
The Fifth Amendment says that no one shall “be deprived of life, liberty, or property, without due process of law.” But because of its unlimited sweep, there is virtually no defense to a violation of the Espionage Act, including a public interest defense.
One would think the Espionage Act applies to spying for a foreign power, the logical meaning of “espionage” but, in fact, the statute breezily punishes disclosure of any “information” that can cause “injury” to the U.S. or gives an “advantage” to a foreign nation, says Afran.
No other direction, definition or limitation appears in this law that is now being applied to Assange, Afran wrote. None of this meets even minimal standards of constitutional notice and due process as the Fifth Amendment has been interpreted.
Equally important is whether the U.S. can ever prosecute a foreign journalist such as Assange who committed no act on U.S. soil; is not a U.S. citizen and has never lived in the U.S.
The government can reach across the seas to bring a foreign defendant to U.S. courts but only if it gives “unmistakable” notice in the law that it plans to do so. Under these principles the U.S. does not and cannot have jurisdiction over Julian Assange.
In contrast to these long-standing principles, nothing in the Espionage Act gives notice that Congress “clearly” and “unmistakably” intended the law to have extra-territorial reach, Afran argues. — From “1st Amendment Authorized Assange’s Possession of Classified Data.”
Guests: Bruce Afran, constitutional lawyer and Alexander Mercouris, British legal and political analyst. Hosts: Elizabeth Vos and Joe Lauria. Executive producer: Cathy Vogan.
As an Australian, I voted for the Labor Party largely because their leader told us he believed Assanges persecution had gone on long enough.
They got elected.
1 year on, it is clear they had no intention of getting Assange freed.
It seems, the corrupt government we got rid of was no worse than our new government.
I won’t vote Labor next time.
The US government, maybe all governments, are criminal enterprises and its direct victims are often (always ?) its own citizens. Other victims are countries that have anything the USG wants, like oil etc.
I have friends who joined the military to serve the nation in the Vietnam war. Mental health ‘experts’ claim many of these people now suffer from severe PTSD due to what they saw or did in combat. However, many of these veterans say their conditions are not based solely on what they did or saw in war but to having learned that their government leaders sent them to a place far far away where they had to kill or be killed based on lies. They had been duped. These people had their core belief systems destroyed. Their PTSD, seems to me, is best described as righteous rage.
The Court in Virginia which has jurisdiction over the Assange case is notorious for denying defendants’ rights. Please address this issue.
I was thinking the same thing, Jim! Bruce has a lot of great ideas I hadn’t heard before regarding this case, but has he tried cases in the Eastern District of Virginia? He himself stated that he couldn’t function as a lawyer if he thought the court system was unfair. He may be predisposed to see fairness so he doesn’t have to give up his work. Kiriakou, Reality Winner, there have been many cases out there that didn’t get a fair shake.
I like the idea of challenging the extrateritoriality in absentia. Bruce made a great case for why that should be allowed.
John Pilger said several times that Vanessa Baraitser was “not a judge, only a magistate”. (see GB definition of “magistrate”) If so, who was actual the judge ? It seems it was actually Emma Arbuthnot – who had a serious conflict of interest in this case. Any more info ?
Very interesting discussion, if not at times confusing for we the general public. However, i maintain my stance on this whole travesty, that the british government has the power (from the incept of this persecution) to release Julian Assange. They could do it very easily if they had the common sense and compassion. But with politicians such as Priti Patel, Suella Braverman, Rishi Sunak, Boris Johnston, Lizz Truss, Kier Starmer et al, devoid, it would seem, of the aforementioned attributes (apart from Judge Vanessa Baraitser) then they will continue down the path of least resistance. The miserable lot.
Michael 888 is correct.
Of course it’s a selective and political prosecution. You don’t have to be a lawyer to know that. Julian Assange is going to be expeditedtried from the UK and convicted in a show trial in the USA come hell or high water to prevent anyone else from daring to do what he did. Which was to show the whole world what the ruling elite in the USdoesn’t want us to know. As far as they ae concerned, theybelieve they are doing us a great favor by crucifying Julian Assange
That is the calm before the storm.
Very soon, things will move at breakneck speed and overrun the NATO.
When it comes to the spoiled interests of those in power, their constitutions do not apply to them, neither constitutions nor any other laws.
The poor guy (Assange) has been banged up in a high security British prison for a considerable time. That he got hold of and published some very scary film footage featuring the star shooters of the USA should not be some sort of treasonable offence in the UK (let’s face it, the UK hasn’t actually been named as another US State yet…). But in a perverse sense, are we the Brits perhaps doing him a small favour by delaying things or perhaps we’re doing the US a real favour by locking him up without any specific ruling on the length of his imprisonment which could then perhaps drag on until his untimely not to say unreasonable death behind bars.
With regards to Afran’s fair trial assertion, I’d like to see him name a single whistleblower in the last ten years who has received a fair trial. Are we to believe that grand juries stacked with spooks whose proceedings occur behind closed doors where the public good of exposure cannot be argued… amount to fair trials? I would have liked to hear John Kiriakou’s take on this discussion today.
The comment on here that no whistleblower in US in the last 10 years has received a fair trial worries me.
I guess you could say that Julian was not the whistle blower but the publisher of the whistle blower that would emanate from the bowels of the CIA, another aspect of this case that would scare the CIA.
Also worrying is Alexander’s repeated comment that there is something very unusual about the Assange case that goes against fair court proceedings.
Every Jack and his dog who is half aware of this case would be appalled at so called ‘British Justice’
Let Assange’s lawyer team involve Bruce Afran in further preparations of their case, there are too many doubts and unusualness to quell any anxiety of failure.
I found Afran to be extremely articulate, educating (as he said) and a certain degree of confidence about this case, as well as Joe and Alexander. But understandably not the confidence expressed by the last two.
Bravo I more than hope for Julian.
Someday, soon perhaps, this government in the U.S. is going to look around for some support from its citizens and it is not going to be forthcoming. We no longer support your drive toward Empire…if we ever did.
Unless Biden pardons Assange, I won’t vote for him.
Hmmm. the Preamble……… .it reads as:
“We the People of the United States, in order to have a more perfect union…” and then goes on to list :
Establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and SECURE the blessings of liberty to ourselves and our progeny…..”
And so strange people running America and so willing to throw We the People under the bus… YOU are the problem—it’s not the People. Maybe no people can be seated in Congress until they can pass the Constitution test, as it appears that WE the People, don’t seem to matter to those who dream of being kings.
It’s just words CaseyG. Words are cheap to these “strange” people.
Look forward to this. I can watch it live.
Sounds interesting. I’ll have to remember to come back and catch this one.
Of course, most of what the US Government does ‘breaches’ the Constitution and its design of a weak central government with power remaining largely with the states. As well as the Constitution’s weak executive where the decision making was in the hands of the broader legislature and where the executive branch was there to ‘execute’ the decisions of the legislative branch. The very notion of rule by issuing Executive Orders and declaring Emergencies would have been highly likely to be rather alarming to the delegates in Philadelphia. Not to mention a million and a half soldiers in a strong standing army.
The US and its Intelligence Agencies no longer follow laws or the Constitution. They do what they want.
When did they ever “follow laws or the Constitution”? When it suits them, yes – but otherwise not much.