"At dynomight.net we don’t like to answer questions. Instead, we prefer to replace them with more abstract questions that we also don’t answer."
So, to summarize, Assange is a dick, but the real problem is the deliberate ambiguity of the statute (Conspiracy to commit offense or to defraud United States), giving the government unreasonable powers of suppression.
I'm not holding out high hopes our current SCOTUS will either remove the ambiguity or reduce the unreasonable power to suppress.
Thanks, and I also appreciate the link to the statute.
Great write up man, really appreciated. I really hope there is some clarification of the act, which I knew was bad but not THAT bad, good lord, but I think you are right that unless the Supremes just strike it down as unenforceable there won't be much hope of improvement anytime soon. It will just be too much easier to muddle along with the current law and not worry about fixing it until people lose interest.
Conspiracy in England is considerably broader than the US provision you've cited. Here there is no requirement to take any further act beyond the mere agreement to offend. And the maximum sentence is the same as the offence one conspires to commit, potentially up to life in prison. Indeed, it is sufficient to agree to offend, conditional on some triggering event, even if that event is very unlikely.
Indeed, you don't even need to agree with anyone to offend. It is a (separate) offence to do an act capable of encouraging or assisting someone else to offend, where you intend to encourage/assist their conduct, being reckless as to whether that conduct would amount to an offence. (s.44 of the Serious Crime Act 2007.)
Many laws are like this. Doing virtually anything can amount to terrorism. Virtually any lie in relation to any kind of property can amount to fraud. And the slightest encouragement of someone else doing those things makes one an accessory to those offences.
Despite all this, these overbroad laws tend to be wielded with reasonable care. (And here the government need not fear its Acts being disapplied by the courts.) Ultimately I think legal and political culture matters a lot more than the precise scope of legal prohibitions. But perhaps this is complacent.
--
An appendix to the appendix: you don't go into the lurid details, but Assange's case is a landmark case in English criminal law, read by all law students, on the question of whether and when a deception will undermine a victim's consent to sexual activity under the general definition of consent. It's probably the most hotly debated area of criminal law since the judgment came out in 2011.
Ironically, the sequels to that case have resulted in the same kind of over-breadth as you notice about espionage. In England it is now legally viable that if A and B have a drunken one-night stand, in which B was under the mistaken (but unstated) apprehension that A would wear a condom, and A did not, then A can have committed rape.
Nice and clear writeup! Thanks for doing the distillation work and sharing with the world.
I'd just like to point out that mental state is an ontologically important category in law. In particular, it looks like proving conspiracy requires convincing a jury that the act was done "with intent or reason to believe that the information is to be used to the injury of the United States."
So, it's not as bad as giving prosecutors the ability to simply argue an action as being potentially harmful. IMHO, with the intent clause, it seems like a broadly reasonable definition of conspiracy. Granted, it does seem like focusing on harm to "the U.S." lets us trade off public good for other potentially harmed interests, but "public good" is fuzzy enough itself that I'm not sure what a better term would be.
You got me wondering about base rates and incentive structures, though. Like, defining espionage as anything the president decides to be espionage clearly places way too much power in the presidency, but how does USC 18 change the incentive structures relative to there not being USC 18? And what do we want those structures to look like in the first place?
Granted, law is mostly reactive, so proactively designing incentive structures is more in the mind of a policy maker than a lawyer, I'd guess.
An interesting writeup that nonetheless repeats baseless smears of Assange that have been long since debunked (link below).
Most of what you write about the Swedish debacle is also wrong or misleading (for instance, the investigation was dropped for the final time in November 2019, not "2020"). In Nils Melzer's book on the "investigation", a diplomatic assurance against US refoulment was not only possible but quite necessary, as the Swedish government was long exposed as a participant in the CIA's extraordinary rendition program. Furthermore, Sweden collaborated with Britain to keep the case alive, even in spite of the reluctance of the former—so much for the fabled "Doctrine of Specialty". Assange was, in sum, wholly correct to resist extradition to Sweden. I recommend that you read the book, "The Trial of Julian Assange", in full.
"But it seems that by 2015, China and Russia had access to basically his entire cache of 1 million documents. It’s not clear how this happened and Snowden insists that he destroyed his own access before he left Hong Kong for Russia. They might have been intercepted or turned over by journalists that were given the documents by Snowden."
Why do you belive this? I've heard this claimed by USG and UKG, but have never seen substantive evidence.
Wikileaks started out with two public faces, Julian Assange and Daniel Domscheit-Berg. They claimed to be five main people but keep the identity of the other three secret for OpSec purposes. It's typical for hackers to care about privacy and not be public about their identities.
In the eve of 2005, the year before Wikileaks got founded Rop Gonggrijp and Frank Rieger lay out the need for an organization like https://media.ccc.de/v/22C3-920-en-we_lost_the_war . Rop Gonggrijp was publically working on the Collateral Murder video with Wikileaks later.
Assange himself did not control the technical infrastructure of Wikileaks at that time as you see in the split when Daniel Domscheit-Berg and others left Wikileaks. They took the harddrive which according to reports contained among other a big dump from Bank of America. After that episode Wikileaks submission pipeline did not go back online which suggests that Assange didn't run that.
Assange or Wikileaks never claimed to be neutral in the way you are implying. Wikileaks promise is that it takes the side of whistleblowers. It's neutral in the sense a lawyer is neutral. A lawyer takes anybody as client even when the political opinions of the client don't match the opinions of the lawyer. Wikileaks was founded to empower whistleblowers regardless of the political leanings of the whistleblower.
If Wikileaks would have been an outlet for Russian interests, you would have expected that they wouldn't have leaked the Syrian government data when Syria was an US enemy and Russian friend.
Neither Trump nor Biden cared significantly about Julian Assange. After the Vault 7 leak, people like Mike Pompeo cared a lot about persecuting or killing Assange. Fighting the CIA who wants revenge for the Vault 7 leak costs political capital and neither Trump nor Biden wanted to spend that political capital.
Thanks for making me read the Espionage Act. Seriously. That's wild.
yes thanks for taking me back to core documents
You buried the lead. This is priceless!:
"At dynomight.net we don’t like to answer questions. Instead, we prefer to replace them with more abstract questions that we also don’t answer."
So, to summarize, Assange is a dick, but the real problem is the deliberate ambiguity of the statute (Conspiracy to commit offense or to defraud United States), giving the government unreasonable powers of suppression.
I'm not holding out high hopes our current SCOTUS will either remove the ambiguity or reduce the unreasonable power to suppress.
Thanks, and I also appreciate the link to the statute.
Great write up man, really appreciated. I really hope there is some clarification of the act, which I knew was bad but not THAT bad, good lord, but I think you are right that unless the Supremes just strike it down as unenforceable there won't be much hope of improvement anytime soon. It will just be too much easier to muddle along with the current law and not worry about fixing it until people lose interest.
Conspiracy in England is considerably broader than the US provision you've cited. Here there is no requirement to take any further act beyond the mere agreement to offend. And the maximum sentence is the same as the offence one conspires to commit, potentially up to life in prison. Indeed, it is sufficient to agree to offend, conditional on some triggering event, even if that event is very unlikely.
Indeed, you don't even need to agree with anyone to offend. It is a (separate) offence to do an act capable of encouraging or assisting someone else to offend, where you intend to encourage/assist their conduct, being reckless as to whether that conduct would amount to an offence. (s.44 of the Serious Crime Act 2007.)
Many laws are like this. Doing virtually anything can amount to terrorism. Virtually any lie in relation to any kind of property can amount to fraud. And the slightest encouragement of someone else doing those things makes one an accessory to those offences.
Despite all this, these overbroad laws tend to be wielded with reasonable care. (And here the government need not fear its Acts being disapplied by the courts.) Ultimately I think legal and political culture matters a lot more than the precise scope of legal prohibitions. But perhaps this is complacent.
--
An appendix to the appendix: you don't go into the lurid details, but Assange's case is a landmark case in English criminal law, read by all law students, on the question of whether and when a deception will undermine a victim's consent to sexual activity under the general definition of consent. It's probably the most hotly debated area of criminal law since the judgment came out in 2011.
Ironically, the sequels to that case have resulted in the same kind of over-breadth as you notice about espionage. In England it is now legally viable that if A and B have a drunken one-night stand, in which B was under the mistaken (but unstated) apprehension that A would wear a condom, and A did not, then A can have committed rape.
Nice and clear writeup! Thanks for doing the distillation work and sharing with the world.
I'd just like to point out that mental state is an ontologically important category in law. In particular, it looks like proving conspiracy requires convincing a jury that the act was done "with intent or reason to believe that the information is to be used to the injury of the United States."
So, it's not as bad as giving prosecutors the ability to simply argue an action as being potentially harmful. IMHO, with the intent clause, it seems like a broadly reasonable definition of conspiracy. Granted, it does seem like focusing on harm to "the U.S." lets us trade off public good for other potentially harmed interests, but "public good" is fuzzy enough itself that I'm not sure what a better term would be.
You got me wondering about base rates and incentive structures, though. Like, defining espionage as anything the president decides to be espionage clearly places way too much power in the presidency, but how does USC 18 change the incentive structures relative to there not being USC 18? And what do we want those structures to look like in the first place?
Granted, law is mostly reactive, so proactively designing incentive structures is more in the mind of a policy maker than a lawyer, I'd guess.
I'm dumb and I don't read the news, who else was charged with espionage?
An interesting writeup that nonetheless repeats baseless smears of Assange that have been long since debunked (link below).
Most of what you write about the Swedish debacle is also wrong or misleading (for instance, the investigation was dropped for the final time in November 2019, not "2020"). In Nils Melzer's book on the "investigation", a diplomatic assurance against US refoulment was not only possible but quite necessary, as the Swedish government was long exposed as a participant in the CIA's extraordinary rendition program. Furthermore, Sweden collaborated with Britain to keep the case alive, even in spite of the reluctance of the former—so much for the fabled "Doctrine of Specialty". Assange was, in sum, wholly correct to resist extradition to Sweden. I recommend that you read the book, "The Trial of Julian Assange", in full.
https://caityjohnstone.medium.com/debunking-all-the-assange-smears-a549fd677cac
Seems similar to the https://en.wikipedia.org/wiki/Federal_Analogue_Act situation as discussed on https://www.youtube.com/watch?v=tq_8LPFBzKU. I wonder what are the other such "acts" out there
"But it seems that by 2015, China and Russia had access to basically his entire cache of 1 million documents. It’s not clear how this happened and Snowden insists that he destroyed his own access before he left Hong Kong for Russia. They might have been intercepted or turned over by journalists that were given the documents by Snowden."
Why do you belive this? I've heard this claimed by USG and UKG, but have never seen substantive evidence.
Wikileaks started out with two public faces, Julian Assange and Daniel Domscheit-Berg. They claimed to be five main people but keep the identity of the other three secret for OpSec purposes. It's typical for hackers to care about privacy and not be public about their identities.
In the eve of 2005, the year before Wikileaks got founded Rop Gonggrijp and Frank Rieger lay out the need for an organization like https://media.ccc.de/v/22C3-920-en-we_lost_the_war . Rop Gonggrijp was publically working on the Collateral Murder video with Wikileaks later.
Assange himself did not control the technical infrastructure of Wikileaks at that time as you see in the split when Daniel Domscheit-Berg and others left Wikileaks. They took the harddrive which according to reports contained among other a big dump from Bank of America. After that episode Wikileaks submission pipeline did not go back online which suggests that Assange didn't run that.
Assange or Wikileaks never claimed to be neutral in the way you are implying. Wikileaks promise is that it takes the side of whistleblowers. It's neutral in the sense a lawyer is neutral. A lawyer takes anybody as client even when the political opinions of the client don't match the opinions of the lawyer. Wikileaks was founded to empower whistleblowers regardless of the political leanings of the whistleblower.
If Wikileaks would have been an outlet for Russian interests, you would have expected that they wouldn't have leaked the Syrian government data when Syria was an US enemy and Russian friend.
Wikileaks worked to redact names from the Afghan warlogs (https://www.computerweekly.com/news/252489197/WikiLeaks-partners-developed-software-to-redact-400000-Iraq-war-logs). Wikileaks however released an encrypted version of the Afghan and Iraqi warlogs with the full names (and other files) and invited people to download it via torrents. A Guardian journalist who previously worked with Wikileaks published the password to decrypt the files in his book. (https://wikileaks.org/Guardian-journalist-negligently.html)
Neither Trump nor Biden cared significantly about Julian Assange. After the Vault 7 leak, people like Mike Pompeo cared a lot about persecuting or killing Assange. Fighting the CIA who wants revenge for the Vault 7 leak costs political capital and neither Trump nor Biden wanted to spend that political capital.