Congressional Research Service Notes That There Are Serious Challenges To Charging Assange
from the ain't-so-easy dept
While a lot of the rhetoric from the US government -- concerning Wikileaks and Julian Assange and whether or not any law was violated -- has been overwrought and full of hyperbole, it appears that the Congressional Research Service (which tends to do a damn good job most of the time) has put out a nice simple report detailing the specific legal issues and laws that might apply here (pdf), and more or less summarizes that the US government would be breaking new ground in charging Assange, and may have difficulties in succeeding. While the report notes you could probably stretch the law to cover what Wikileaks did, it warns:[The] statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications.....The report does note that there has been at least one case it's aware of where a foreign national was charged under the Espionage Act for activities done outside of the US. But, it is quite rare, and beyond a single district court ruling saying this okay, the history and language of the Espionage Act suggest it was not designed for this purpose.
The report also delves into the hurdles to having Assange extradited to the US (something the US is apparently already discussing with the Swedish government), pointing out that no current US treaty "lists espionage as an extraditable offense."
But the biggest hurdle is noted towards the end of the report, in highlighting the rather serious Constitutional issues associated with attempting to try Assange for anything in the US, with a lot of focus on the ruling in the Pentagon Papers case:
Where First Amendment rights are implicated, it is the government's burden to show that its interest is sufficiently compelling to justify enforcement. Whether the government has a compelling need to punish disclosures of classified information turns on whether the disclosure has the potential of causing damage to the national defense or foreign relations of the United States. Actual damage need not be proved, but potential damage must be more than merely speculative and incidental. On the other hand, the Court has stated that "state action to punish the publication of truthful information seldom can satisfy constitutional standards." And it has described the constitutional purpose behind the guarantee of press freedom as the protection of "the free discussion of governmental affairs."There are definitely plenty of loopholes whereby the government can try to file charges against Assange, but in reading through the document it would likely be a pretty tough sell. You can read through the entire document after the jump.
[...]
[If] national security interests were not sufficient to outweigh the First Amendment principles implicated in the prior restraint of pure speech related to the public interest, as in the Pentagon Papers case, it is difficult to discern an obvious rationale for finding that punishing that same speech after it has already been disseminated nevertheless tilts the balance in favor of the government's interest in protecting sensitive information.
The publication of truthful information that is lawfully acquired enjoys considerable First Amendment protection. The Court has not resolved the question "whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well." (The Pentagon Papers Court did not consider whether the newspapers' receipt of the classified document was in itself unlawful, although it appeared to accept that the documents had been unlawfully taken from the government by their source).
The Court has established that "routine newsgathering" is presumptively lawful acquisition, the fruits of which may be published without fear of government retribution.
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Filed Under: espionage, extradition, julian assange, wikileaks
Companies: congressional research service, wikileaks
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No Worries
Happens all the time.
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If the US prosecutes Assange I certainly hope they fail. The Press need to rip the attacks on him/ Wikileaks apart.
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The real issue is The U S Deceleration of Independence and other countries Decelerations of Independence.
http://en.wikipedia.org/wiki/United_States_Declaration_of_Independence
http://en.wik ipedia.org/wiki/Declaration_of_independence
All of the documents are based on the idea that the group declaring independence is not subject to the original countries any longer.
There is a corollary to the above belief and that is if the group declaring independence is not subject to the home country's rule any longer then the home country is not subject to the rules of the group declaring independence.
That means that not only did UK law not apply to the US after independence but that US law did not apply to the UK and that citizens of the US were no longer represented in the British Parliament. Too often the latter portion of that declaration is forgotten.
This changes the question entirely. How can the US try a foreign news paper with treason with out becoming an imperial power? Where violation of US law by non US citizens outside the US is considered o crime in the US.
Worse than that if the US can declare a non US citizen a criminal for actions outside the US then the foreign powers can declare US citizens in violation of their laws for actions guaranteed by the US Constitution in the US.
To put this is prospective assume that the USSR (as a nitrous bad opponent of the US) declared that the US President violated their laws, captured same, and imprisoned him for 20 years. That is what the US did to the President of Panama. The US would sent in the marines. Panama being smaller did not have that right. Credibility of might equals right. And that is where this is headed.
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Re: No Worries
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For what it's worth the swedish minister of foreign affairs has officially denied (article is in Swedish) any such discussions pointing out that "we have an independent judical system that acts on its own accord in accordance with the law and does not have contacts with swedish political instances".
Now it's of course difficult to know whether that's true or not, but I would venture to guess that the political price of being exposed having such discussions would be quite high since I think the public support for Wikileaks is strong in Sweden and the government has recently tried hard to not upset the public opinion in issues regarding the right to personal privacy and transparency, ever since the public outcry after the wiretapping laws it was responsible for two years ago.
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well we know
I wouldn't put it past them given the current info to arrange for Assange to have "an accident" during transfer to sweden. (Planes crash every day).
Then they can trot out the fake regret that he won't face (non-existant) charges via the US...........
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Re: Re: No Worries
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Considering that Wikileaks is one of those organizations where money just sort of disappears (very little tracking or responsilbity, considering that many donations were not made to them directly), there may also be a money trail in the game here. We don't have all the evidence at hand.
Let's just say the research people appear to have jumped the gun, and more than little.
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Re: Re: Re: No Worries
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Worldwide Payment Systems are no one’s Tools to Shape Foreign Policy.
======================
The State Department should not have pressured Amazon, Paypal, Visa, and Mastercard to turn away WikiLeaks. Aside from the futility of such a move (the cat is now out of the bag), it significantly affects everyday businesses around the world which rely on established ways to get paid. The last thing they need during this holiday season is to be embroiled in politics.
As things stand now, those offended by Paypal might not use it, or its partner ebay. Those offended by Amazon, might not order the kindle. Those offended by Visa and Mastercard might use cash or checks. Worse, they may not buy much for Christmas - - even forego that planed trip, or dinner at that nice new restaurant.
And all for naught.
To be sure, the State Department is recoiling from its decision. Yet, in fear of losing face, it is paralyzed and not likely to change course. It has, however, put away the club, and as such Amazon, Paypal, Visa and Mastercard should quickly reverse course.
And the State Department might be the first to be relieved from such open defiance.
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Re:
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Re:
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Re: Re: No Worries
Never underestimate the ability of the US to come up with a trumped-up charge that will get foreign governments to roll over for them.
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Re: Re:
And he's even more wrong than that, since apparently the original leaker tried to get them out to main stream press before going to Wikileaks.
In other words, try again....
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Intent
Assange was selective in his releasing of the information, and he and his partners considered each document released to "reduce the risk to individuals" in light of the US's letter informing him that such a release could put people at risk.
Rather, our legislators and law enforcement officers will rely on the corporations they serve to restrain Assange and Wikileaks, because they are constrained by the Constitution in their ability to silence them. Again, this is exactly what they fear, the lack of an ability to restrain, because it may ultimately serve to diminish their power. We now have the information we need to make an informed decision as to how we chose to be governed and who we are governed by. Assange is reinforcing our civil rights from abroad.
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Re: No Worries
You think trumping up charges is something that is unique to the US government?
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Re: well we know
We do? When making such a grave accusation, it's helpful to not assume that people know what you're talking about and provide some kind of support for your position. (And please don't tell me to just google it. You're making the accusation; it's up to you to support it. I may find a million hits on a search, but I don't know which one justfies your specific accusation without you saying which one.)
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Re:
I see no evidence that anyone "stole" anything. I see evidence that someone copied something.
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Re:
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Re: Intent
Quoted in bold because this gem deserves repetition and emphasis.
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Investigation?
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probably this
http://www.techdirt.com/articles/20101208/00221812176/so-wikileaks-is-evil-releasing-documents -dyncorp-gets-pass-pimping-young-boys-to-afghan-cops.shtml
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That Wikileaks offered the documents to other parties (the NY Times) for publication, and yet nobody can try the NY Times for publishing them, due to the famous "Pentagon Papers" case law that established their right to do so.
Lastly, I know our government has illegally kidnapped and jailed innocent foreign nationals on false pretenses, so that they would even be considering doing this is not a surprise. That they're considering legal methods to do it with is rather surprising. Normally, they just go grab someone and have it done. No fuss, no muss, unless the prisoner actually gets to court.
Unfortunately, our courts have upheld the right of the CIA to use rendition as a perfect way to jail someone under the filmiest of excuses.
It's time the State Department and the government just drop the ruckus and just go away. This doesn't serve any purpose except to make Wikileaks even more famous and in demand. Assange can be replaced there-and I'm sure they're not working in a vacuum without him.
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That Wikileaks offered the documents to other parties (the NY Times) for publication, and yet nobody can try the NY Times for publishing them, due to the famous "Pentagon Papers" case law that established their right to do so.
Lastly, I know our government has illegally kidnapped and jailed innocent foreign nationals on false pretenses, so that they would even be considering doing this is not a surprise. That they're considering legal methods to do it with is rather surprising. Normally, they just go grab someone and have it done. No fuss, no muss, unless the prisoner actually gets to court.
Unfortunately, our courts have upheld the right of the CIA to use rendition as a perfect way to jail someone under the filmiest of excuses.
It's time the State Department and the government just drop the ruckus and just go away. This doesn't serve any purpose except to make Wikileaks even more famous and in demand. Assange can be replaced there-and I'm sure they're not working in a vacuum without him.
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Re: Re:
I strongly doubt that unless it would be information used as evidence in a trial, but I'm not a lawyer or anything so it's only based on my understanding of it.
If the government finds it obvious that there is not enough reason to grant an extradiction request it can deny it immediately. If it doesn't the case it tried by the supreme court. Even if the supreme court would not find any legal reasons to deny an extradiction the government may still (after the trial) deny extradiction. According to the Swedish Government's page about extradiction "Extradition is permitted, provided that the act for which extradition is requested is equivalent to a crime that is punishable under Swedish law by imprisonment for at least one year."
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Re: Re: No Worries
there's difference between being good at something and being the only one to do something. one makes the other unnecessary, that is all.
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Re: Pentagon Papers
Dude,
Please —at the very least— read the Supreme Court's opinion in the Pentagon Papers case: NEW YORK TIMES CO. v. UNITED STATES, 403 U.S. 713 (1971).
It's a significant piece of American history. Great school board only knows why you weren't forced to read the opinion in your high school civics class...
The Pentagon Papers case only decided the issue of “prior restraint”.
In the Pentagon Papers case, the court struck down a preliminary injunction which had barred publication. And even that decison was fairly narrow. The decison left open the possibility that some prior restraints might be justifiable on national security grounds (as Near had suggested).
That's all the case really stands for.
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Re:
I just wanted to say that "Deceleration of Independence" would make a great band name.
But, since I assume you're talking about the Declaration of Independence, um, that's meaningless here. That has nothing to do with treaties concerning extradition or respecting one anothers' laws.
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Re:
FYI: TechDirt has a Reply feature that will associate your comment to the associated post thus grouping all related posts together.
probably this
http://www.techdirt.com/articles/20101208/00221812176/so-wikileaks-is-evil-releasing-documents -dyncorp-gets-pass-pimping-young-boys-to-afghan-cops.shtml
Not to downplay the gravity of the allegations or the point Mike was trying to make, but even if you take all of the suspected activities as true, it's a far cry from "the US government happily sells children as sex slaves". With a crime this heinous, you don't need hyperbole.
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Re: Re:
DAMN it. That type of catch is usually my forte...
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Re:
1) Making statements to the effect that you enjoy conjugal visits with local livestock
2) Walking into the local airport and yelling "I've got a bomb!" (not actually having a bomb, just claiming to have one)
3) Inciting riots
4) Shouting "Fire!" in a crowded building
5) Telling you, in highly graphic terms, that I am going to kill you
6) Blackmailing you with, say, an affair I claim to have seen you having (regardless of the truth of the statement)
All of these, by the mindset your statement seems to be espousing, are free speech (at least insofar as they are actions that can be completed using speech alone). And yet all have been declared to be against the law, in the greater interests of society as a whole.
That's the key - Certain types of speech are and can be restricted if doing so is in the interest of the citizenry as a whole. Without the ability to do so, I think "Anarchy" is the best way to describe the result.
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Re: Credibility of might equals right.
I'm hoping US will put this case to rest by letting other countries prosecute. I'm positive that Russia would not mind to do us a favor....
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Re: Re: Re: No Worries
I beg to differ. The tone of Mr Rhodes' post most certainly does imply a belief that the US is somehow unique in this regard. The point of my post was to highlight the double standard which is applied to the US. If there was some way to tell the percentage of "trumped up charges" there were around the world, I think that you'd find that the US would be nearer the bottom of the list. China? Iran? North Korea? Myanmar?
For the record, I think that any case where a law is applied incorrectly for political purposes is wrong, no matter if it's the US or someone else.
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Re: Re:
Woah, that would be an awesome band name.
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Re: Re:
Schenck was decided wrongly. The decision is a disgrace to America. I would say that it ought to be overruled.
Would say... Despite Scalia's opinion as recently as R.A.V. v. St. Paul (1992) —which cited Schenck— there seems little doubt that Schenck would be decided differently today. The case probably wouldn't even reach the Supreme Court. An honest and faithful prosecutor wouldn't even charge Charles Shenck —today.
Abrams got a dissent from Holmes back in 1919.
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Re: Re:
1) Making statements to the effect that you enjoy conjugal visits with local livestock
*But I love it when I make your mom squeel.
2) Walking into the local airport and yelling "I've got a bomb!" (not actually having a bomb, just claiming to have one)
*great reason to get your ass kicked
3) Inciting riots
*they put on a great show
4) Shouting "Fire!" in a crowded building
*thanks for letting us know since the alarms did not work
5) Telling you, in highly graphic terms, that I am going to kill you
*bring it
6) Blackmailing you with, say, an affair I claim to have seen you having (regardless of the truth of the statement)
*show me the proof and I will let you keep your balls.
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I don't get it....
Is this not setting a very bad example? Isn't this exactly the opposite of how were telling the Iran's and North Korea's of the world to act?
I could see North Korea or Iran declaring one of our politicians a criminal and sending out kill/capture squads, and when we protested, what would we say? If it's the U.S. it's ok, but you can't do that? Are we really that arrogant?
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tough to convict, but easily detained
By simply charging him and successfully extraditing him to the US, he may be held incommunicado for a painfully long time. Just ask any of the inmates still held at Guantanamo.
A conviction is not necessary to establish a powerful deterrent to future whistle-blowers and publishers. The chilling effect on free speech is the desired outcome.
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Re: Re: Re: Re: No Worries
Besides the US doesn't even need to charge him. They can just kidnap him off the street in a foreign country and fly him to a torture camp in Cuba. Laws are inconvenient.
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Re: Re: Re: Re: Re: No Worries
Abducting him from British custody would be, it is to be hoped, more difficult than were he roaming about freely.
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Re: Re: No Worries
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Re: Re:
7) Exposing government corruption.
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Re:
From what I can tell, they weren't stolen at all. Copies were leaked.
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Trial?
Or, if that's not good enough, a federal court ruled recently that the President can order anybody, including even US citizens, assassinated by the military and there's nothing anyone, even the courts, can do about it.
So what's all this worry about the difficulty of prosecuting Assange in court?
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Re: Re: well we know
http://www.guardian.co.uk/world/2010/dec/02/fo reign-contractors-hired-dancing-boys
http://www.chicagotribune.com/chi-0512270176dec27,0,6797771. story
"Bush declared zero tolerance for involvement in human trafficking by federal employees and contractors in a National Security Presidential Directive he signed in December 2002 after media reports detailing the alleged involvement of DynCorp employees in buying women and girls as sex slaves in Bosnia during the U.S. military's deployment there in the late 1990s."
Ten years later and Dyncorp are still doing it. Seriously, Americans, why do you still vote for the same bunch of criminals?
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Re: Re:
See, hear, otherwise experience it in front of you knowing the threat is coming. aka. anarchy?
or
Leave it secret?
Doublethink (Believing both are true) in action. Believing in freedom of speech and yet having restrictions on it.
The same intelligence that caused the problem cant solve it.
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Re: No Worries
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Blocking Access to Wikileaks May Harm CRS, Analysts Say
I think this quote says it all 'In fact, if CRS is “Congress’s brain,” then the new access restrictions could mean a partial lobotomy.'
I could be horrible here and say that since the US congress acts like it has half a lobotomy already, this must mean that it was brainless at the time... but I wont ;)
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Re: Trial?
Of course, even if a judge ruled it unconstitutional, the executive branch would probably just ignore that as usual.
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speculative and incidental - - not if you see what he has released..
He released a list of names of actives agents in the field, working in Afgainistan. that list will of no double been seen by Al Quada, or some sympathetic group, and those people who's names where publised, by wikileaks.
Are at substantial risk, its also easy to argue, that he is "providing aid, and support to the enemy".
Releasing names of active agents, or people just working with the US, is far more that "speculative and incidental".
All that now has to happen is that one of those people Wikileaks listed, will turn up dead, and what do you think will happen then ?
Do you think those people listed, think that it was "speculative and incidental" that they got a bullet through the head ? (if they are lucky)..
What about the soldier who leaked the documents to Assange, where is he now Mike ??? what conditions is he living under ? can you tell everyone ? or is that a bit embarrasing..
You dont think that young soldiers life is new officially SCREWED ? he got a destroyed life, and assange gets a million dollars a year for his 'act'..
there are any number of laws and statues that the US could use to get him back to the states, and to answer for his acts..
But NO, he does not have the guts to stand by his convictions, he will run and hide, He might even decide it is better to do some time for rape, than to face the music in the US :).
He is avoiding the US like the plague, yet he hides behind US laws, and the US constitution to justify his actions..
He cant have it both ways, he will get his cumupence, dont you worry about that :).. its just a matter of time.. you dont burn a heap of world leaders, but peoples lives at risk and live a happy retirement..
lets see, if im right or wrong,, Any bets ?? I'll give you odds :)
He only has himself to blame, he could of possibly got away with it, until he released that list of names.
He even worked out he screwed up big time, and censored the list, 'redacted', it.. but as you well know, its too late once its released..
that is how downfall.. that makes him a terrorist.. that means all sorts of anti-terror laws, you're Pres Bush gave you are all applicable....
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Mike, Good legal advice, im sure it will 'get him off'.. :)
It generally covers persons authorized to know the identity of such agents, but can also apply to a person who learns of the identity of a covert agent through a "pattern of activities intended to identify and expose convert agents" and discloses the identity to any individual not authorized asses to classified information, with the reason to believe that such activities would impair U.S foreign intelligence efforts.
This crime is subject to a fine or imprisonment for a term of not more than three years.
To be convinced, a violator must have knowledge that the information identifies a convert agent whose identity the United States is taking affirmative measures to conceal.
So if you publish a list of names specifically intended to
identify and expose convert agents..
And when you publish a list of 100 active, covert agents, you DO identify then AND you EXPOSE them..
And you get 3 years in prison for each instance, 100 names, 300 years Give or take..
How would you go about building an argument, that would explain to a court, how assange did not intensionally identify and expose that agents, that you know he exposed and named ??
What would you explain to the jury,,, or would you claim he has first amendment rights, even though he is not a US citizen, and he is not in the US ?
That would make him an enemy combatant, and you know where they go,, dont you ?? think waterboarding, and posing naked for guard dogs !!!..
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Sure just like they let Robert Hansen go for the same thing !!! LOL
He exposed people, and they were shot.. he's lucky he is still alive..
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Re: Re: Trial?
To be more fair, that was only part of his ruling. He also ruled that the courts don't have the authority to intervene anyway regardless of the standing issue.
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Re:
2. The report, IIRC, did not mention charging Assange with treason, but primarily with the Espionage Act.
It looks to me like that too will fail, though.
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Re: Sure just like they let Robert Hansen go for the same thing !!! LOL
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If he gets whacked
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Re: No Worries
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Re: Re: No Worries
That's too bad, for a minute there I thought you were here to have a conversation. Oh well.
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Re: Re: No Worries
But please, don't let little things like facts get in the way of your rant. You were on such a roll...
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