Many people ask how can Julian Assange, an Australian who’s never operated in the U.S., be prosecuted under the U.S. Espionage Act. Here is the answer.
Territorial Reach—The 1961
Amendment That Imperils Assange
By Joe Lauria
Special to Consortium News
If the original 1917 Espionage Act were still in force, the U.S. government could not have charged WikiLeaks publisher Julian Assange under it. The 1917 language of the Act restricted the territory where it could be applied to the United States, its possessions and international waters:
“The provisions of this title shall extend to all Territories, possessions, and places subject to the jurisdiction of the United States whether or not continguous thereto, and offenses under this title when committed upon the high seas or elsewhere within the admiralty and maritime jurisdiction of the United States …”
Scarbeck led by FBI agents.
WikiLeaks publishing operations have never occurred in any of these places. But in 1961 Congressman Richard Poff, after several tries, was able to get the Senate t0 repeal Section 791 that restricted the Act to “within the jurisdiction of the United States, on the high seas, and within the United States.”
Poff was motivated by the case of Irvin Chambers Scarbeck, a State Department official who was convicted of passing classified information to the Polish government during the Cold War under a different statute, the controversial 1950 Subversive Activities Control Act, or McCarran Act.
(Congress overrode a veto by President Harry Truman of the McCarran Act. He called the Act “the greatest danger to freedom of speech, press, and assembly since the Alien and Sedition Laws of 1798,” a “mockery of the Bill of Rights” and a “long step toward totalitarianism.” Most of its provisions have been repealed.)
Newspaper account of Scarbeck affair.
Polish security agents had burst into a bedroom in 1959 to photograph Scarbeck in bed with a woman who was not his wife. Showing him the photos, the Polish agents blackmailed Scarbeck: turn over classified documents from the U.S. embassy or the photos would be published and his life ruined. Adultery was seen differently in that era.
Scarbeck then removed the documents from the embassy, which is U.S. territory covered by the Espionage Act, and turned them over to the agents on Polish territory, which at the time was not.
Scarbeck was found out, fired, and convicted, but he could not be prosecuted under the Espionage Act because of its then territorial limitations. That set Congressman Poff off on a one-man campaign to extend the reach of the Espionage Act to the entire globe. After three votes the amendment was passed.
The Espionage Act thus became global, ensnaring anyone anywhere in the world into the web of U.S. jurisdiction. After the precedent being set by the Assange indictment, it means that any journalist, anywhere in the world, who publishes national defense information is not safe from an Espionage Act prosecution.
Joe Lauria is editor-in-chief of Consortium News and a former UN correspondent for The Wall Street Journal, Boston Globe, and numerous other newspapers. He was an investigative reporter for the Sunday Times of London and began his professional career as a stringer for The New York Times. He can be reached at [email protected] and followed on Twitter @unjoe .
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Why does anybody assume that the USA is the only country in the world with a government? If every government has the right to extraterritorial laws, why can’t Saudi Arabia or Israel do the same? Why not North Korea? Why not Venezuela?
The simple answer is that most people in countries allied to the USA have become used to obedience to a government they can’t vote for. They demand no democratic rights. The USA is the only country they presently accept as their ruler. Now, they can no longer see a legal precedent. Even publishers in the USA or in allied countries can’t see that they can be punished for their identical and undeniable crimes.
The only consolation is the amusement we’ll feel at the absurd Judge’s lies when another country does exactly the same as the USA. donthomson1 (dot) hotmail.com
It still strikes me the fact that the UK judiciary applies US law. There is no barrier to that? I understand for a country to prosecute a foreigner that has committed a crime in its territory or, in case the crime is detrimental to the country’s national security, abroad, but I do not understand how a country can apply foreign law to prosecute any individual who committed a crime in its territory not detrimental to that counrty’s law and order. Am I missing somethnig?
Britain is not prosecuting Assange. The US asserts Assange broke US law and they want him sent to the US to stand trial there. Britain of course could have rejected the extradition request and let Assange go after being penalized for skipping bail, which is the only British law he broke. The US is trying to establish that the US law it says he broke is similar to British law on unauthorized possession and publication of state secrets.
Thanks. That is what I was missing.
Bull. That doesn’t give the US the authority to charge Assange anywhere except the US. All Britain has to do is to decline to extradite him. But we all know the lapdogs won’t do that….
It’s also unclear to me how they can charge Assange when they couldn’t make the charge stick with the NYT and the pentagon papers.
The US has the authority under its law to charge him but Britain does not have to agree and could have rejected the extradition request.
“After the precedent being set by the Assange prosecution, it means that any journalist, anywhere in the world, who publishes national defense information is not safe from an Espionage Act prosecution.”
And it might not be a prosecution in absentia.
According to this, by not prosecuting those who published first the US is in violation of its own laws! It seems so simple and painfully obvious that even the judge would have a hard time getting around it.
Selective Prosecution
Criminal prosecution based on an unjustifiable standard such as race, religion, or other ARBITRARY classification.
Selective prosecution is the enforcement or prosecution of criminal laws against a particular class of persons and the simultaneous failure to administer criminal laws against others out-side the targeted class. The U.S. Supreme Court has held that selective prosecution exists where the enforcement or prosecution of a CRIMINAL LAW is “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive” that the administration of the criminal law amounts to a practical denial of EQUAL PROTECTION of the law (United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 [1996], quoting YICK WO V. HOPKINS, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 [1886]). Specifically, police and prosecutors may not base the decision to arrest a person for, or charge a person with, a criminal offense based on “an unjustifiable standard such as race, religion, or other arbitrary classification” (United States v. Armstrong, quoting Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 [1962]).
Selective prosecution is a violation of the constitutional guarantee of equal protection for all persons under the law. On the federal level, the requirement of equal protection is contained in the DUE PROCESS CLAUSE of the FIFTH AMENDMENT to the U.S. Constitution. The Equal Protection Clause of the FOURTEENTH AMENDMENT extends the prohibition on selective prosecution to the states. The equal protection doctrine requires that persons in similar circumstances must receive similar treatment under the law.
Selective prosecution cases are notoriously difficult to prove. Courts presume that prosecutors have not violated equal protection requirements, and claimants bear the burden of proving otherwise. A person claiming selective prosecution must show that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. To demonstrate a discriminatory effect, a claimant must show that similarly situated individuals of a different class were not prosecuted. For example, a person claiming selective prosecution of white Protestants must produce evidence that shows that white Protestants were prosecuted for a particular crime and that persons outside this group could have been prosecuted but were not.
The prohibition of selective prosecution may be used to invalidate a law. In Yick Wo v. Hopkins, the U.S. Supreme Court struck down a San Francisco ordinance that prohibited the operation of laundries in wooden buildings. San Francisco authorities had used the ordinance to prevent Chinese from operating a laundry business in a wooden building. Yet the same authorities had granted permission to eighty individuals who were not Chinese to operate laundries in wooden buildings. Because the city enforced the ordinance only against Chinese-owned laundries, the Court ordered that Yick Wo, who had been imprisoned for violating the ordinance, be set free.
CROSS-REFERENCES
Criminal Procedure.
There still does not seem to be an answer how a non-US citizen can be charged under the espionage act, revised or otherwise. I would love some clear “legalise” as to how this can be happening.
A non-citizen can be charged in any country if they break that country’s laws. Assange is accused of unauthorized possession of defense information. The issue prior to this 1961 amendment to the Espionage Act was WHERE this crime took place. Before 1961 it had to be in the US or a US possession. After this change it can take place anywhere in the world. The issue of citizenry is irrelevant, it’s about territory.
This information about Congressman Poff’s amendment to the espionage act and the spectre of president Trumps dictatorial ambitions should make the world Tremble. Citizens of every country Would not be safe.
Thanks, this is good info.
And yet there are still more differences than similarities between Scarbeck and Assange, including:
— Scarbeck was a US citizen, a federal employee, and part of his ‘crime’ took place inside a US embassy.
— Assange is not a US citizen, nor an employee of the US gov’t , and wasn’t operating in US territory.
Scarbeck had legal access to the documents inside the embassy. What was unauthorized was removing them and giving them to the Polish government on Polish territory. Hence he was beyond the reach of the Espionage Act at the time.
But the Ecuadoran embassy is U.S. territory, according to the Monroe Doctrine.
Especially after President Moreno turned traitor to his people.
In a Bidenesque moment, his arrest was announced by Bobby Kennedy, in the newspaper clipping. Humbling to be outsmarted by Polish agents. Interesting parallels with the sordid blackmailing and the media smear campaign of Assange’s private affairs.
There’s an old anecdote about Lyndon Johnson when he was President.
He was walking towards his helicopter when an aide finally got up the courage to tell him, “Sir, you’re headed to the wrong helicopter.”
Johnson replied, “Boy, they’re all my helicopters.”
I think that about sums up the official American view of everything these days.
Other people’s borders and laws mean absolutely nothing.
If the US wants something, it just takes it.
And just so, prosecuting Assange.
Too true, John. Joe’s piece was, for me, very informative. I knew nothing of the amendment, the reason for it, or Harry Truman’s prescient and principled opposition to it. But, in this case, it took the utterly pathetic conduct of Sweden and the UK, and then Lenin Moreno, to allow this ghastly extraterritorial overreach. All that these governments needed to do was say ‘no’, and the US would have been forced to kidnap Assange, who would have never returned to a US jurisdiction on his own volition. Even more pathetically, the UK has bowed to the US imposed ‘meaning’ of the word ‘policical’ to be a synonym of ‘partisan’, which would be funny were it not in this context.
Truman was opposed to the McCarran Act, which Scarbeck was charged under, not to the amendment, which took place in 1961, long after Truman had left office.
Thank you for the clarification, Joe. And for everything you do, including your patient and polite corrections of readers’ errors. I will go back and read your article more carefully.
With all of the licensed lawyers in the U.S., the multitudes of specialized groups populated by them – ostensibly dedicated to improving and maintaining constitutional “law & order”, and the extraordinary number of them occupying elected and career public service in state and national government employment, concerned citizens might consider that the work of forming a more perfect union has been trusted to the wrong element of our union.
As Usual,
EA
There is the additioal factor that the Australian Government refuses to lift a finger to help Julian Assange. Shame on their cowardice. Or perhaps they share precisely similar attitudes towards international laws. Or both.
Does that mean any US laws can become international laws? Why other countries would have to submit to US dictates? This and extraterritoriality are US claims I would legislate against if I were a politician from another country. I don’t believe even allies of the the US can accept that level of interference within there borders but they do…
About 20 years ago, in response to yet another tightening of the U.S. screws on Cuba,
the Canadian government passed legislation obligating companies operating in Canada
to ignore U.S. prohibitions on trade with Cuba. It was applied around that time (e.g.,
Walmart had to stock ugly Cuban-made pyjamas that the U.S. had decreed verboten),
but seems a dead letter these days, though still on the books as far as I know.
This is very interesting and informative. Thank you, Joe. However, I still do not see how the United States, or any country in the world, can validly apply its laws to the conduct of people in other countries, territories, states, etc. that are not itself. Do not the countries on which those laws are being imposed have anything to say about that? What about international law with respect to human rights, civil and political liberties, etc.? I’m pretty sure that the extraterritorial application willy-nilly of one country’s laws to conduct taking place within the territory of another, which presumably is governed by the laws of that territory, is not necessarily uncontroversial among legal scholars, and very likely in practice. Imagine Saudi Arabia trying to prosecute a U.S. citizen for an act that a U.S. citizen “committed” on U.S. soil, because it violated Saudi law. The idea seems more an arrogation of legal authority by force by sheer coercion. How is this rationalized? I’d love Consortium News to follow this issue up.
Thank you Mr. Lauria for the history lesson.
Richard Poff is a name all of us should remember.
No that’s restrictive… “it means that anyone, anywhere in the world, if he doesn’t comply with the extended empire narratives, is not safe from prosecution.” But, as for many other issues, this was already in place, long before today and regardless of the party running the show; the main difference of today is blowing away the appearance it wasn’t happening, it’s the removal of the hypocrisy veil, it’s the engraving it into stone and it is the complete absence of any reaction from the world at large.
Who or what are you quoting “guido”, when you state:
It does seem arbitrary to impose one country’s laws globally.
Why stop there?
Why not make it mandatory to bow your head before the great Oz? (…)
Or maybe I shouldn’t give the any Ideas.
Hi MM:
1. “It does seem arbitrary to impose one country’s laws globally.”
—The United States is an empire and its goal is to expand control over every inch of the planet.
2. “Why stop there?
Why not make it mandatory to bow your head before the great Oz?”
—The United States sends missionaries everywhere: a Calvinist Christianity is useful for its economic policy of turning much of the world into a work camp.
Many of our rulers would like to make it mandatory to bow one’s head before the Calvinist Jesus, not Oz.
3. “Or maybe I shouldn’t give them any Ideas.”
—They already have the ideas.
When Empires decline and fall, there is a pattern; Strong leaders are replaced by madcaps who are elected by historical karma to hasten the decline. That is why Nero messed around while Rome was burning. Both Trump and Biden, albeit each in their own way, are a couple of cans short of a six pack. We are surviving as a Country, but falling as an Empire, so we have our “Neros” at the helm.
It goes further than this planet – space, the entire universe is theirs too.
Rich, coming from a rogue state that aggressively fights any kind of international rule of law.
If anything Assange published clear evidence of the level of corruption in the upper echelons of the US Government. Assange is an Australian…..he is a PUBLISHER. He is NOT QUALIFIED to determine the legal validity, nor the security level of anything GIVEN to him. He has the right as a publisher to publish anything he sees fit to publish without threat of prosecution.
‘the upper echelons of the US Government’ have been preparing a ghastly future for their children and grandchildren. By imposing the openly contradictory and idiotic rules, the upper echelons of the US Government have been legalizing the theft, crookery, and murder.
The Arbuthnots, Clintons, Blairs, Obamas, Trump, Sarkozy, et al may try at pretending on being decent people but this is not going to work. Not at all. These psychopathic war profiteers have been destroying western civilization in a brazenly open manner.
It is a bit different, I am not sure if better. It is still illegal for US government and officials to commit crimes, but they risk more from lightning on golf courses than from prosecution. However, disclosing those crimes using documents is illegal and prosecuted with vigor.
On a related note, the criminal who actively lead the invasion of the North Korean embassy in Madrid is in “hiding”, presumably in USA, with apparently rather leisurely pursuit, and his partner in crime is out on bail waiting for the outcome of extradition hearing. We are talking about a criminal who violently robbed an embassy on a gunpoint and fled through at least two borders (entering Portugal and then USA). Theft of computers from the embassy could classify as espionage, but the legal type of espionage — they gave the computers to FBI. Why they were not arrested on the spot??!! What if I loot Walmart (people were stealing full carts of stuff, no weapons required… as a bicyclist I would need to limit myself to 20 kg or so) and bring it to FBI?