Prosecuting Assange Under the Espionage Act - By Andrew C. McCarthy - The Corner - National Review Online

Prosecuting Assange Under the Espionage Act - By Andrew C. McCarthy - The Corner - National Review Online

(a) In this context as in that of alien enemy combatants, we should presume that constitutional protections do not extend to aliens located overseas, particularly those who are hostile to our government. The Constitution is intended to protect Americans from arbitrary or abusive acts by their government, not to protect aliens outside our borders, much less enemy aliens. And

(b) Assange is not a journalist. As Gabe points out, the First Amendment has never immunized journalists from liability for publishing national defense information shielded by the Espionage Act — the Pentagon Papers case merely held that there should not be a prior restraint against publication, not that there could not be a post-publication prosecution. Moreover, as Gabe further notes, prosecutors are leery of proceeding against journalists due to judicial interpretations of the espionage act that call for proof of “bad faith” on the part of the journalist. I think this hesitation is misplaced: at most, “bad faith” for these purposes means the prosecutor must show the journalist was aware that publication could harm the U.S. — it doesn’t matter if the journalist had what he subjectively saw as admirable motives. But such knotty journalistic intent issues are irrelevant when we are dealing with a non-journalist who acts with an unabashed goal of undermining the United States. (On Assange’s anti-American rationale, I highly recommend Gordon Crovitz’s insightful WSJ column from Monday, “Julian Assange, Information Anarchist.”)