In a column for The Hill, lawyer and legal scholar Alan Dershowitz argues that on the basis of current evidence, prosecuting WikiLeaks for the publication of Chelsea Manning’s leaks would not be constitutionally different to prosecuting The New York Times for publishing the Pentagon Papers in 1971.
If the New York Times, in 1971, could lawfully publish the Pentagon Papers knowing they included classified documents stolen by Rand Corporation military analyst Daniel Ellsberg from our federal government, then indeed WikiLeaks was entitled, under the First Amendment, to publish classified material that Assange knew was stolen by former United States Army intelligence analyst Chelsea Manning from our federal government.
Dershowitz, who has been a scathing critic of the Democrat efforts to impeach Trump over bogus “Russian collusion” allegations, said the current case against Assange is “factually weak.”
It is likely, therefore, that a prosecution of Assange for merely publishing classified material would fail. Moreover, Great Britain might be unwilling to extradite Assange for such a “political” crime. That is why prosecutors have chosen to charge him with a different crime of conspiracy to help Manning break into a federal government computer to steal classified material. Such a crime, if proven beyond a reasonable doubt, would have a far weaker claim to protection under the Constitution. The courts have indeed ruled that journalists may not break the law in an effort to obtain material whose disclosure would be protected by the First Amendment.
But the problem with the current effort is that, while it might be legally strong, it seems on the face of the indictment to be factually weak. It alleges that “Assange encouraged Manning to provide information and records” from federal government agencies, that “Manning provided Assange with part of a password,” and that “Assange requested more information.” It goes on to say that Assange was “trying to crack the password” but had “no luck so far.” Not the strongest set of facts here!
Dershowitz also questioned whether the case as it stands, built on what such shaky factual ground, would be sufficient for British legal authorities to grant an extradition request. Under U.K. law, those subject to extradition requests will have an opportunity to appeal the decision in U.K. courts.
Dershowitz made a similar defense of Assance on Hannity last night:
“They indicted [Assange] on a very factually questionable basis,” Dershowitz told Hannity.