First Thoughts on Assange Arrest

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Let me start by saying what is likely already clear to you. I see Julian Assange as a loathsome, destructive, megalomaniacal figure. These tendencies, apparent from the start, have undoubtedly been accentuated by years in self-imposed captivity which started and for many years was an effort to escape a legitimate sexual assault investigation. But I think we should be highly skeptical of his arrest and extradition to the US.

At the simplest level, I don’t think publishing classified material, if you are not a US government official responsible for keeping it secret, is a crime. Especially if you’re not even a US citizen. That doesn’t mean that it can’t be a crime or part of a crime. We still don’t know what charges he’s being brought to the US to face. But we should be very skeptical.

More broadly, as we’ve seen vividly in the last few days, we’re living in a dark period in which rights created to protect citizens from abuses of government power are routinely turned inside out and weaponized to help those in power attack their critics and enemies; brazen coverups are repackaged as privacy rights and fidelity to the law. It probably goes without saying that Assange is set to be charged with publishing US national security secrets the theft of which may have been wrong or misguided in some people’s eyes but almost certainly weren’t part of any conspiracy against the United States. Participating in an actual conspiracy on the part of a foreign party which played some role in installing the current President in power won’t be part of the story.

People often make slippery slope arguments that certain uses of the law which may be reasonable in themselves should be avoided because they can later justify unreasonable, destructive uses. Those arguments are often overstated. But again, we’re living in a period when these actions are no longer possible but probable.

On a much more mundane level, it seems questionable to me what end it will serve creating a martyr out of someone who is now such a ridiculous figure.

Now, we basically don’t know anything yet. Perhaps things will look different when we see the actual charges, more detail etc. But I would not let Assange’s vile and destructive nature lead us to assume these developments are good news or that they won’t quickly be turned to bad ends.

Late Update: Here’s the press release from the DOJ about the actual charges. The charges are, as expected, tied to the Chelsea Manning leaks. But they’re not for publishing classified data. They’re for conspiracy to hack into government computers. These are much more wisely crafted charges. Mini-course in media law: As a general matter, a journalist is not responsible for any bad acts which may have produced information or documents she publishes if she was not part of those bad acts. The traditional hypothetical is if documents just fall out of the sky into your hands, it’s not your problem where they came from. But if you stole them it is your problem. More specifically if you involved yourself in the theft, it’s your problem. If you know someone has access and you encourage them or give them advice about stealing them, you can be on the line for that. This is very basic First Amendment law and any smart or experienced investigative journalist knows this. The government is claiming Assange egged Manning on or advised her on how to get more material. The legal theory there is a durable one and not terribly new. Whether it is sustainable on the facts is another matter.

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