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Re: [Fwd: WikiLeaks Prosecution Faces Hurdles]

Released on 2012-02-28 15:00 GMT

Email-ID 1035283
Date 2010-12-02 18:10:41
This seems like a pretty good analysis.=A0 Certainly better than most of
our own conjecture.= =A0

"Given that Assange has run hundreds of thousands of classified documents
on his web site, each one that is properly classified could be included as
a separate count of an indictment."
- I look forward to Manning and Assange facing a bajillion-thousand counts
of espionage.=A0

On 12/2/10 11:05 AM, Fred Burton wrote:

=93The espionage laws, believe it or not, do not make =
an exception for
reporters,=94 Martin says. However, as a matter of policy, reporters and
publishers have never been charged under espionage laws.

Fred Burton wrote:

-------- Original Message --------
Subject: WikiLeaks Prosecution Faces Hurdles
Date: Thu, 2 Dec 2010 12:00:46 -0500
To: Ronald Kessler

_WikiLeaks Prosecution Faces Hurdles_


WikiLeaks Prosecution Faces Hurdles

Thursday, December 2, 2010 11:43 AM

*By: Ronald Kessler*

WikiLeaks founder Julian Assange can be prosecuted in this country for
espionage, but he may never be brought back to the United States to face
the charges.

That=92s the judgment of John L. Martin, arguably the country=92s foremost
expert on the subject.

For 25 years, Martin was in charge of espionage prosecutions by the
Justice Department. By the time he retired in August 1997, Martin had
supervised the prosecution of 76 spies. Only one of the prosecutions
resulted in an acquittal.

Attorney General Eric Holder Jr. has said the Justice Department has an
=93active, ongoing criminal investigation=94 of Assange, who is in hiding,
over his apparent release of classified documents.

While Assange could be indicted, =93as long as he stays out of the United
States, we don=92t have any jurisdiction over him,=94 Martin tells Newsmax.
=93Moreover, because espionage is considered under international law to be
a political offense, extradition treaties do not cover those accused of
violating the espionage laws of any country.=94

A major reason is that espionage laws could be applied to foreign
intelligence officers who are under nonofficial cover and therefore have
no diplomatic immunity from prosecution. In addition, a country such as
Great Britain has an Official Secrets Act that would apply espionage
laws to publishing material that other countries may not consider major
breaches of security.

As a result, countries are wary of supporting such laws by honoring
extradition requests.

=93You would never want to put your people in jeopardy by sending an
intelligence officer without diplomatic immunity back to that country to
face trial for violating its espionage laws,=94 says Martin, who was an
FBI agent before becoming the country=92s chief spy prosecutor.

So, while Assange could be charged by the United States, =93He would have
to come into the United States voluntarily or by some ruse,=94 Martin says.

However, aside from any treaties, Martin says a foreign country could
decide to cooperate by putting him on a boat or airplane destined for
this country under guard. That has happened in the past, Martin says.

While Assange would argue that he is a journalist and therefore exempt
from espionage laws, those laws actually have no exception for
journalists, editors, or publishers, Martin says.

=93The espionage laws, believe it or not, do not make an exception for
reporters,=94 Martin says. However, as a matter of policy, reporters and
publishers have never been charged under espionage laws.

Martin says Assange could be charged under Section 793 of Title 18 of
the U.S. Code, which prohibits unauthorized receipt, possession, or
transmittal of classified documents, or under Section 798, which
prohibits disclosure or publication of classified communications
intelligence information.

Given that Assange has run hundreds of thousands of classified documents
on his web site, each one that is properly classified could be included
as a separate count of an indictment. As a result, he could face a
mounting prison term equivalent to a sentence of life in prison upon
conviction, Martin says.

The military arrested Private First Class Bradley Manning, suspected of
being the source of the leaked documents, last May after WikiLeaks ran a
video it had allegedly obtained from him. Taken by cameras on U.S.
Apache helicopters, it shows several civilians, including two Reuters
employees, being killed in a U.S. strike in Iraq in 2007.

In an online chat, the Iraq-based intelligence analyst boasted about
making available such classified material to the world.

=93Since Manning did not transmit these documents to an agent of a foreign
power, the more serious espionage offense that carries life imprisonment
or death would not apply,=94 Martin says.

However, =93The military will be looking to indict Manning on multiple
counts of violating Section 793 of Title 18 of the U.S. Code by passing
national security information to an unauthorized person,=94 Martin says.

The government will have to establish that the documents it selects to
be included in the prosecution =93related to the national defense, that
they were protected information, and that the disclosure of these
documents to unauthorized persons could damage national security,=94
Martin says. =93You don't have to prove actual damage, only the
possibility that it could cause damage.=94

The fact that Manning will face a military court martial gives the
government an advantage, Martin says.

=93It=92s going to be a prosecution where classified documents are central
to the government=92s case, and in that situation a military judge may
close the courtroom to the public to take classified testimony or when
the documents are introduced into evidence,=94 Martin says. =93You can=92t
close a public trial in a civilian courtroom.=94

Another advantage in a military case is that each time a soldier commits
a violation, he can be charged with violating general orders, a separate

=93There's no such offense in civilian court,=94 Martin says.

Since each properly classified document would represent a separate
count, =93Manning would face the possibility of 100 years or more in
prison,=94 Martin says. =93They could put him away for life if they do it

*Ronald Kessler is chief Washington correspondent of View
his previous reports and get his dispatches sent to you free via e-mail.
Go here now gt;.*



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