Britain arrested Julian Assange today. They are holding him without bail.
Dianne Feinstein argues in the Wall Street Journal today that the United States should prosecute Assange under the Espionage Act. Feinstein is a chicken in her argument. She advocates prosecution of Assange, but says nothing about prosecuting the New York Times or the Washington Post under the same law. The law makes it a felony
…to possess or transmit ‘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.’
She’s chicken because she knows prosecution of the Times and the Post would raise free speech issues the prosecutors could not overcome. So you go after an unsympathetic individual without resources to make an example of him. That way you intimidate others and make sure like-minded people don’t follow his path. Anyone who believes Assange broke the law has to believe the Times and the Post broke the law as well.
Another interesting point arises when you consider the language of the Espionage Act, which Feinstein wants us to do. All government officials – in the military, in the intelligence agencies, and in the administration itself – who planned torture, set up and maintained torture sites, transported people to those sites, prepared prisoners for torture, carried out torture, disposed the bodies of people who died from torture, arranged for torture with other governments, documented torture, transmitted and stored information about torture: every person who did that is guilty under the language of the law. They all possessed “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’s exactly why the people engaged in torture wanted to keep the information secret. It was obviously harmful to the United States – much more harmful than the information in the State Department cables. I wrote about this question in a brief post about treason and betrayal. Treason isn’t committed by people outside of government who reveal things the government deems dangerous to its own security. Treason is committed by people inside government who betray the people they serve. No person who tries to replace people guilty of that betrayal can be called a traitor.
Here’s one more item related to Feinstein’s disturbing legal argument. Assange isn’t even a United States citizen! By claiming a right to prosecute Assange, Feinstein claims a right to prosecute anyone in the world who possesses information we say is dangerous to the United States. Think about what that means. It means we can hunt, capture, imprison, interrogate, prosecute, and sentence anyone in the world who we consider an enemy. I guess that idea should not dismay us. We have already engaged in that kind of activity for nearly ten years. Now that Assange is under arrest, Feinstein would like to extend the hunt to a vulnerable website owner. Let’s see who’s next.