Arrest Assange? For What?

CIA Director Mike Ompeo has announced that they have “found” a legal basis for arresting Julian Assange for his handling of classified information, and he seems to be supported in this position by Attorney General Jeff sessions. Both men are constitutionally illiterate, and should never have been appointed to those positions.

Some constitutional background on the Assange situation.

First, there are only two bases for charging someone under the Espionage Act.

1. Prosecution under the “contract” that government personnel are required to sign who get access to classified information. It consents to criminal prosecution for improper disclosure of such information. That is the usual ground cited for such prosecution. However, such a contract is a kind of oath, and violation of an oath is perjury of oath. But there is no law making perjury of oath a crime, nor does the Constitution grant congress the authority to pass such a statute. Moreover, criminal prosecution of perjury is a common law crime, and common law crimes are not permitted under the Constitution, as was correctly decided in the 1812 case of U.S. v. Hudson.

Even if the contract were to authorize criminal prosecution of the person who signed the contract, it would not apply to parties who did not, such as those who might receive or pass on such information.

So the Act, if constitutional, would allow prosecution of Chelsea Manning but not Julian Assange.

2. Persons can be prosecuted under the treason Clauses for giving “aid and comfort to an enemy”, by disclosing classified information, but the treason Clauses only apply to U.S. citizens, not foreign nationals. To Manning but not to Assange.

It is not the First Amendment that protects Assange, but the Tenth. There is no constitutional authority to prosecute him for what he did.