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.