
US Department of Justice Argues Assange Has No First Amendment Rights - silasdb
https://www.wsws.org/en/articles/2020/01/24/assa-j24.html
======
SllX
Horseshit.

The Bill of Rights is descriptive of _some_ of the natural rights of men, not
prescriptive. The reason it exists at all was to satisfy people who quite
rightly thought that without the extra legal insulation a malicious Congress
or government would trample all over them.

Go read the 1st Amendment, it’s right here:

> _Congress shall make no law respecting an establishment of religion, or
> prohibiting the free exercise thereof; or abridging the freedom of speech,
> or of the press; or the right of the people peaceably to assemble, and to
> petition the Government for a redress of grievances._

The first five words are “Congress shall make no law”, or basically, this
isn’t a _grant_ given to the people, this is a restriction on the type of laws
Congress is allowed to pass, and if Congress can’t pass a law, then a
President can’t enforce it because it doesn’t constitutionally exist!

~~~
chapium
Sorry, but you are wrong. But that's ok, its a common misconception about
constitutional law. The first amendment does carry those restrictions, but it
is not the only law affecting those rights. Specifically, the "privileges and
immunities" clause from the 14th amendment has extended the 1st amendment to
apply to the rights of citizens and has been interpreted as such by the
Supreme Court in various cases.

JA is not a US Citizen, and I admit I do not know where that lands him
constitutionally speaking.

~~~
awb
But the moment he's tried in a US court or lands in the US presumably he has
those rights.

We don't treat tourists under a different Constitution or deny them 1st
amendment rights.

~~~
chapium
Does he? This depends on extradition and not necessarily the 1st amendment.

~~~
monocasa
The extradition request was for normal federal charges where the first
amendment pretty clearly applies.

------
BLKNSLVR
I'm wondering at what point the Australian Government might actually stand up
in the defense of one of it's citizens against potential (and maybe even
actual) human rights violations.

Australian politicians very much like to talk about 'protecting Australians'
when it comes to ISP data retention and laws against encryption, but they tend
to go entirely missing in the kind of situations where they are actually
needed on behalf of a citizen that, in this case, needs potentially life-
saving protection.

~~~
fit2rule
Not going to happen. They will bow to the needs of the USA, as Brazil has now
done in its prosecution of Greenwald.

Wikileaks is sitting on a ton of info about the ADF's war crimes as well, and
the Australian government want nothing more than to prevent the _intense_
scrutiny of its proud fighting force by the worlds' people that would result
from such a leak. They are fighting tooth and nail to ensure that Wikileaks is
invalidated completely in the minds of the Australian public, who generally
have very little temerity when it comes to criticism of their armed forces
actions.

EDIT: Besides which, there is Australia's heinous Sedition law, which is being
floated as the means by which Assange would be silenced were he to land back
in Australias territory.

~~~
threeseed
Australian Federal Police is already investigating war crimes committed by the
Defence Force:

[https://www.abc.net.au/news/2019-09-20/afp-travels-to-
afghan...](https://www.abc.net.au/news/2019-09-20/afp-travels-to-afghanistan-
to-investigate-alleged-war-crimes/11527426)

The media has had plenty of information about alleged war crimes so I doubt
Wikileaks is going to offer anything new.

~~~
fit2rule
.. and as we can see from this token investigation, the media in Australia is
also under attack for its own investigations of ADF war crimes, a situation
for which Australia has been lambasted by international journalistic
organisations - who are strangely silent on Assange's treatment.

So .. There is more to come.

------
NeedMoreTea
UK govt should be refusing all US extradition requests, and suspending all
trials until it is accepted Sacoolas be extradited to the UK.

~~~
mytailorisrich
The US, like other countries, do not want to set 'bad' precedents on
diplomatic immunity. Afaik she had diplomatic immunity and despite the
speeches on both sides the US will never extradite her because of the
precedent that would set.

In addition, in her case I suspect they also want to avoid any disclosure of
the activities of her husband.

The point actually also (or especially) applies in the UK: If she did have
diplomatic immunity then what is the basis to prosecute (or even just sue) her
in the UK?

~~~
NeedMoreTea
Both the Foreign Office and the US State Department appeared to accept that
she no longer had diplomatic immunity, and she wasn't a registered diplomat
anyway -- she was the _Intelligence officer 's_ wife. Or at least that's what
the Foreign Secretary was claiming at the tail end of last year. The surprise
is either of them getting immunity for an airbase intelligence role outside
London in the first place. I've seen several reports questioning whether the
immunity was valid at all.

But having returned to the USA there is no longer any immunity. A crime is
still there to be investigated and prosecuted, an extradition could proceed.

Additionally US-UK extradition agreements both under Thatcher and later under
Blair have been notable for their imbalance, but that seems rather academic
here.

A balanced discussion of the issues underlying:
[https://www.diplomacy.edu/blog/sacoolas-affair-diplomatic-
im...](https://www.diplomacy.edu/blog/sacoolas-affair-diplomatic-immunity-or-
special-immunity)

~~~
secfirstmd
"airbase intelligence role outside London"

There are lots of US bases outside London that conduct US intelligence
gathering - e.g RAF Menwith Hill.

~~~
NeedMoreTea
Which don't have everyone running on diplomatic plates, or actual diplomats.

For a diplomatic cover, usually something for missions in unfriendly and
hostile states, (shades of Cold War le Carré here) it would be for staff at
the embassy -- which is in London. So the airbase would have to be considered
a branch or part of the London embassy under the Vienna Convention. Yet
Menwith Hill and Croughton etc are supposedly RAF bases militarily shared
under NATO deals.

Hence all the controversy currently coming out of the woodwork, and numerous
articles quoting QCs and ministers disputing the validity at all, or
considering it abuse of Vienna, including the exploration piece I linked
above. IANAL. :)

------
i_dont_know_
I've heard people say the US constitution lays out limits of what the US
government can do, as opposed to rights of US citizens.

So, if the US government wants to hold you in detention, they have to tell you
why, not because you have that 'right', but because they are bound by law to
do so in all circumstances irrespective of what passport you're carrying.

Again, I've only _heard_ this before -- I'm not at all a legal scholar. Can
anyone confirm or deny this interpretation and possibly give more reading
material around it?

~~~
bumby
The first ten amendments are literally called the "Bill of Rights". It limits
what the government can do because doing so would be in opposition to the
rights of US citizens.

"Rights of citizens" and "limits of government" are two sides to the same
coin.

Edit: should have used “person” rather than “citizen”. I was mirroring the
verbiage used by the OP and should have been clearer. E.g. non-citizens are
still granted Miranda rights

~~~
Symmetry
"Citizen" is never mentioned in the Bill of Rights. It's all "The Government
shall make no law" or "the people" or "the accused" which apply equally to any
other person within the United States. Even undocumented immigrants are
protected by the Bill of Rights and legal non-citizen residents certainly are.

~~~
ReptileMan
The question is whether the Bill of Rights ends at US border from what I
understand.

~~~
bumby
I think it’s a bit more complicated than that. I think the issue is whether
those rights apply to _non-citizens_ outside the border.

I think it’s generally well established that rights travel abroad with
citizens. However, it’s less clear if they apply abroad (or even to U.S.
territories) to non-citizens. E.g. _United States v. Verdugo-Urquidez_ claims
it does not apply to non-citizens who do not have a voluntary association with
the U.S.

Edit: I'll try to be more clear. The rights of U.S. citizens extend beyond the
border _when dealing with the U.S. government._ I was not implying other
governments must recognize U.S. Constitutional rights when dealing with U.S.
citizens.

~~~
ameister14
Interestingly enough, the phrasing in the article implies that the Justice
Department is arguing that speech made outside the US is not protected, not
simply speech made by non-citizens.

I would be incredibly surprised if that argument held up.

~~~
bumby
See Anwar al-Awlaki for some evidence of how the US applies constitutional
rights to citizens abroad when they are considered enemies of the state

~~~
ameister14
Was that legally supported? I think it just wasn't challenged

~~~
bumby
ACLU challenged with multiple cases. As far as I know they were dismissed

[https://www.aclu.org/cases/al-aulaqi-v-obama-
constitutional-...](https://www.aclu.org/cases/al-aulaqi-v-obama-
constitutional-challenge-proposed-killing-us-citizen)

[https://www.aclu.org/cases/al-aulaqi-v-panetta-
constitutiona...](https://www.aclu.org/cases/al-aulaqi-v-panetta-
constitutional-challenge-killing-three-us-citizens)

------
sjg007
If the US wants to apply US law globally then US constitutional rights should
apply to you if the US wants to prosecute you. I imagine if this goes forward
it will end up at the US Supreme Court. Also if Assange is on US soil at the
time of prosecution then the 1st amendment should apply and it should be
retroactive.

~~~
david_draco
The US should respect article 19 of the Universal Declaration of Human Rights,
or retreat from its signature to it.

Related, the US should respect the UN's ban on wars on aggression (Article 2,
39 of the charter), or otherwise retreat from its membership.

------
docdeek
> "According to WikiLeaks, witness statements submitted to the court by US
> prosecutors on Saturday argue that Assange does not enjoy First Amendment
> protections because he is not a US citizen and because the amendment
> allegedly does not protect speech made outside the United States.”

Isn’t this another way of saying US legal protections don’t apply to people
who aren’t American, and aren’t physically present in America (or under its
jurisdiction)? I feel like this would be the case for other countries, too:
free speech laws that protect Americans in America wouldn’t protect them in
China or Australia or Kenya, and Kenyans, Australians and Chinese citizens
outside of the US aren’t protected by US law, either.

~~~
yorwba
If US law doesn't grant protection to Assange because he's neither a US
citizen nor physically present in America, then it also shouldn't be possible
to prosecute him for things he did while neither a US citizen nor physically
present in America.

~~~
chadcmulligan
This is something I've always found confusing about the entire situation -
Assange is an Australian citizen who did something in Iceland, yet the USA is
applying its laws to him. Granted he obtained US intelligence from a US
citizen, but how is this his problem? I find it hard to understand how this is
possible.

------
Causality1
It's bizarre to me that the US constitution's philosophical basis is that it
does not create rights but only recognizes natural or God-given rights that
people already have, yet the US government doesn't recognize those rights for
anyone but its own citizens.

~~~
ianhawes
It is largely an untested theory. The USG asserts that his 1A protections do
not apply because he is not a USC and speech was outside the US. That begs the
question of whether the court then has jurisdiction. It is a good rule of
thumb that if you are being tried in the US, the constitution applies to you.

------
kerkeslager
Well, that certainly undermines the credibility of the Dept. of Justice's
previous claims that Assange would receive a fair trial. If Assange doesn't
have first amendment rights, what other inalienable, constitutional human
rights doesn't he have?

------
deogeo
> witness statements submitted to the court by US prosecutors on Saturday
> argue that Assange does not enjoy First Amendment protections because he is
> not a US citizen and because the amendment allegedly does not protect speech
> made outside the United States.

Wouldn't this logic extend to all the other amendments as well? Meaning
Assange has _no_ rights, at which points, why even bother with a trial? Just
execute him as soon as he touches US soil.

Of course, this logic could be applied to _all_ foreign nationals then.

My only question is, if US rights don't apply to foreign nationals, how come
legal restrictions _do_ apply? Can the executive branch just arbitrarily
decide which laws apply to a foreign national?

------
lettergram
I mean... he’s also not a U.S. citizen, and wasn’t / isn’t under the
jurisdiction of the U.S...

so sure if they argue he has no first amendment rights, then how do they argue
they have jurisdiction?

~~~
agotterer
Isn’t this a slippery slope? Could the argument be made that anyone who isn’t
a U.S. citizen isn’t protected by the constitution then? Not a citizen, you
can’t say what you want when you want. Not a citizen you don’t get the right
to due process. Etc.

~~~
non-entity
The US just assassinated a high ranking military official of a nation we arent
at war with openly without even attempting it covertly. It would seem that
they are already well invested in carrying out justice against foreign
nationals as they see fit

------
fit2rule
I truly hope there will be more leaks in the future. So far, we're seeing the
tip of the ice-berg - but I predict that if Assange dies without justice,
there are going to be repercussions. There are a _lot_ of angry people out
there, sitting on a goldmine of information, just waiting to see how this
proceeds. I can't imagine a scenario where Wikileaks is pounded into the
ground, and the rest of the world goes quiet - sure, mainstream mind control
being what it is, we may forget Assange soon enough.

But the truth wants to be free, and when crimes against humanity are committed
at such scale as the Coalition is capable, there has to be more on the
horizon.

One wonders what the AirWars folks are thinking about all of this. I sure hope
groups like these, as well as Wikileaks, is going to survive this onslaught of
injustice.

The truth will come out. There'll be more leaks.

------
AndrewKemendo
Having dealt with this issue while overseas and having done some previous
searching, the question of whether the Constitution applies to Non-Citizens
residing outside of the US is unclear in law.

Note, the distinction here: Someone who is residing outside of the US.

"Assange does not enjoy First Amendment protections because he is not a US
citizen and because the amendment allegedly does not protect speech made
outside the United States"

Julian Assange is an Australian Citizen who was residing in the United Kingdom
and was not being held by agents of the US Government. It's unclear under what
precedent he would enjoy protections under the US Constitution.

~~~
shadowgovt
There's a strong Constitutional construction argument that argues the
Constitution applies to all people regardless of citizenship if the government
intends to put legal binding upon them and we are not in a state of war.

But I believe the US executive branch has not ascribed to that legal
philosophy since at least George W. Bush's presidency.

~~~
AndrewKemendo
I think that's a good argument, but I'm not a lawyer, I just know that the
Rules Of Engagement for military members extended the spirit of the
constitution, to how we were supposed to interact with the local population in
Iraq.

In Assange's case though I don't see how the First Amendment will help here,
as the charge is "Conspiracy to commit Computer Intrusion." I don't think the
district court is making a case about whether Assange has the right to publish
data freely.

------
pyb
"Between December 19 and January 13, lawyers had just two hours to brief
Assange and take instruction. They were granted one more hour to confer on
January 13, when Assange last appeared in court."

IANAL, but that doesn't sound normal to me, particularly for such a case.

------
Tycho
Wait, hold on a minute here, I was assured that the one thing Assange should
have done years ago was turn himself over to the authorities and let justice
take his course. Can someone explain to me how things could have diverged so
badly from the expected path?

~~~
ben_w
If Assange had gone to Sweden in 2010, _and been found guilty and gone to
prison_ , he might have finished his sentence before the USA officially
decided to try him with their 2017 (?) indictment.

Even if he was still in prison, Sweden is at least as capable of resisting USA
extradition requests as the UK.

Even if he wasn’t in prison/an embassy (either not guilty or guilty and
released after doing time), the indictment would’ve happened anyway, and led
to another extradition attempt anyway wherever he was — including, I recon, if
he went straight from Sweden to Ecuador, given that Ecuador did remove his
asylum.

Either way, his conditions would’ve been better between them and now, but also
the situation right now would be the same (except for the time spent in a UK
prison for breach of bail, and held by the authorities while waiting for an
extradition hearing, and the loss of bail bond money from his supporters)
except that _either_ he would be exonerated from sexual assault charges _or_ a
dangerous narcissistic rapist would’ve been punished with a prison sentence
rather than allowed to present themselves as a victim [delete as appropriate].

~~~
vidarh
If he had been tried in Sweden in 2010, and there were no political
machinations, he'd have been out probably by 2013-2015. Sentences in Sweden
are short across the board - you can find even convictions for violent rapes
in Sweden that results in sentences no longer than that.

But that rests on a lot of assumptions, such as that there wouldn't have been
an earlier US indictment if he'd been conveniently accessible.

And of course it rests on the assumption that Sweden would have been as
"capable of resisting" extradition. Which is a big question - one of the
results of "Cablegate" was that we know that _years_ after the Swedish
government found out Swedish police was complicit in blatantly illegal
rendition of two political asylum seekers who were afterwards tortured after
being handed over to the government they were fleeing, the US was chastised
secretly by the Swedish government after Swedish military intelligence caught
Swedes assisting illegal rendition flights via Sweden. Nobody were ever tried
for either incident. So it's not clear whether or not Sweden is even capable
of stopping the US from unilaterally doing as it pleases, before even consider
whether Sweden would want to.

I'm inclined to think the oddities in the Swedish case was down to domestic
Swedish issues rather than US involvement, but at the same time I know for my
part if I had feared US prosecution, I'd much rather stay in the UK than go to
Sweden.

~~~
ben_w
Hm. Well, I view the current extradition process as evidence the UK isn’t
going to try very hard to stop him going to the USA: If the UK authorities did
have that intent, I would’ve expected them to inform Sweden about the end of
Assange’s asylum and given them a chance to reopen their case before the USA
got to start a new one, but the complainants were reportedly surprised by the
events.

Then again, I left the UK because I no longer trust the UK government to do
good, so naturally I must be _unusual_ in my belief about the UK…

------
torstenvl
As someone whose legal arguments have been drastically misunderstood by papers
of much higher reputation (looking at you, WaPo), I'm skeptical of the
accuracy of the claim.

------
stjohnswarts
No judge will support that, not even cronies put in by Trump. The only way
they would get anything even close is to have him declared an enemy combatant
and that's not going to happen.

------
ReptileMan
So the same justification for gitmo. Nothing new.

------
abtinf
This is not a credible source. Has there been any reporting from a major
paper?

~~~
paulnechifor
I'm not sure why people are downvoting you. The website even admits to being
controlled by a communist organization:
[https://en.wikipedia.org/wiki/International_Committee_of_the...](https://en.wikipedia.org/wiki/International_Committee_of_the_Fourth_International)

~~~
93po
What about communism makes a source untrustworthy?

