The likelihood of the founder of WikiLeaks facing possible extradition to the US has strengthened with a number of senior American politicians declaring that he has breached the Espionage Act.
Supporters of Julian Assange say they fear that his extradition to Sweden for alleged sex crimes will pave the way for a future appearance in an American court.
Joe Lieberman, the head of the Senate’s Homeland Security Committee, claimed yesterday that the leaks organised by Julian Assange and his associates were “serious violations of the Espionage Act”. US State Department spokesman Philip Crowley added: “What WikiLeaks has done is a crime under US law.”
The US Justice Department is under intense political pressure, especially from the Republicans, to pursue Mr Assange, with leading figures of the right, such as Sarah Palin, using the leaks to attack the Obama administration.
“They have got to do something, otherwise they will face pretty savage criticism,” said a European diplomat. “I suppose the best hope for the Americans is that he gets convicted in Sweden and serves a jail sentence there.”
Although the US authorities have as yet made no official request for his extradition, informal discussions have been held between American and Swedish officials to that end. Mr Assange’s London solicitor Mark Stephens said that being sent to Sweden from the UK would make his client extremely vulnerable. “His Swedish lawyer has said that it would be quite unsafe for Julian in Sweden at this time,” Mr Stephens said. “Not in terms of he would be harmed in Sweden, but that Sweden is not the end game.”
Eric Holder, the US Attorney General, has said that Justice Department lawyers are examining how Mr Assange could be indicted over the leak of the diplomatic cables. “This is not just sabre-rattling on our part,” he said. “We are talking about one of the most serious violations of the Espionage Act in our history. To the extent that we can find anybody who was involved in the breaking of American law… they will be held responsible; they will be held accountable.”
However, diplomatic sources say that it is not clear whether the US authorities will be able to prosecute Mr Assange under the Espionage Act. They point out that whereas it is illegal for government officials with security clearance to leak classified documents to WikiLeaks, it is not clear whether it is illegal for the website to make it public.
There is yet to be a successful prosecution of a third-party recipient of a leak and the possible acquittal of Mr Assange on such a charge would be doubly embarrassing for the US administration.
The Justice Department is, therefore, also considering bringing possible charges of Mr Assange receiving stolen government property. But that too could pose difficulties as journalists have in the past used leaked government documents in the US without being prosecuted.
Meanwhile it was announced yesterday that Mr Assange’s legal team will be led by the prominent Australian-born barrister Geoffrey Robertson QC, who has flown back from Sydney to take on the case. Mr Robertson, who has been involved in a number of high-profile human rights cases, could take the appeal against the granting of extradition to Sweden all the way to the Supreme Court, with legal proceedings stretching into months.
A jury will resume deliberations today in the trial of two men facing federal industrial espionage charges for allegedly taking photographs of tire-making machinery at a Goodyear Tire and Rubber Co. plant in Kansas in order to duplicate the equipment.
Federal prosecutors and defense lawyers presented closing arguments Wednesday in the case of Clark Alan Roberts and Sean Edward Howley, then U.S. District Judge Thomas W. Phillips sent the case Wednesday afternoon to the jury of eight men and four women for deliberations, which ended the day without a verdict.
Phillips ordered jurors to resume deliberations at 9 a.m. today.
Roberts and Howley are standing trial on a 10-count indictment alleging that they conspired to steal and make use of trade secrets. In closing arguments, prosecutors portrayed the case as one of blatant theft of information from Goodyear to help a competing Chinese tire company gain an economic advantage. Defense attorneys said it was really more of a civil case that didn’t belong in federal criminal court.
“It was a bad business decision to take those photos,” said Tom Dillard, attorney for Roberts. “But that doesn’t make it a federal offense.”
Thomas Dougherty, an attorney for the U.S. Justice Department, disagreed.
“The defense may not like it, but it is a federal crime to steal trade secrets,” Dougherty said. “It is not just a bad business decision; it is a theft.”
Dougherty and Greg Weddle, assistant U.S. attorney, contend that Roberts, who was head engineer for Greenback-based Wyko Tire Technology Inc., and Howley, an engineer in training there, arranged a visit to a Goodyear plant in Topeka May 30-31, 2007, so Howley could use his cellphone camera to take seven photos of an over-ply down machine used for a crucial phase of producing large tires used on mining and earth-moving equipment.
Wyko had a contract with a Chinese tire manufacturer to provide such a machine, and Wyko was having trouble producing one within the 20 weeks stipulated in the contract, prosecutors said.
Defense attorneys do not deny the men took the photographs but challenged the idea that the over-ply down machine met the legal definition of a trade secret. In the 1990s, Goodyear had sent an example of the machine to Wyko, a Goodyear supplier, for possible modification and improvement and Wyko kept the machine for three years, the attorneys said.
“You can’t steal that machine if you already have it,” said Doug Trant, Howley’s attorney.
In 2000, Goodyear sent Roberts detailed photographs of the over-ply down machine, Dillard said. Defense attorneys said neither the machine nor the photos came with any confidentiality agreement, but prosecutors said there was fine-print language in the purchase orders sent with those items that restricted their use.
Earlier in the trial, which began Dec. 1, Trant suggested that Goodyear was using the federal government to do its dirty work.
“If Goodyear needs to sue him, they ought to sue him,” Trant said.
Both sides agreed that Goodyear was warned by a Wyko employee that Roberts and Howling were planning a trip to Topeka to photograph sensitive equipment there. Prosecutors counted this as evidence of the defendants’ plan to steal trade secrets. Defense attorneys questioned why Goodyear didn’t try to stop them after being tipped off.
Roberts and Howley are being tried under the Economic Espionage Act of 1996, which Congress enacted out of concerns that foreign countries try to steal U.S. trade secrets, the ease with which technology makes it possible for disgruntled employees to steal a company’s privileged information and other factors.
The act sets out guidelines to define a trade secret, and one of the crucial tasks of the jury will be to see if the over-ply down machine meets them. Something is a trade secret under the act if the owner took reasonable measures to ensure secrecy, the protected information would not be generally known or readily accessible to the public, and if the owner would derive some “independent economic value” from keeping the information secret.
Business writer Ed Marcum may be reached at 865-342-6267.
Sen. Dianne Feinstein wants to prosecute Julian Assange for espionage.
The founder of WikiLeaks “intentionally harmed the U.S. government,” says Feinstein, who chairs the Senate Intelligence Committee. By releasing 250,000 State Department cables, he also violated the 1917 Espionage Act by transmitting “information which the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,” Feinstein, D-Calif., charged in a Wall Street Journal opinion piece Tuesday.
To John Perry Barlow, co-founder of San Francisco’s Electronic Frontier Foundation, “The first serious infowar is now engaged. The field of battle is WikiLeaks.” The Mill Valley resident (according to his Facebook profile) tweeted to followers: “You are the troops.”
If there’s any doubt which side Barlow is on, he helpfully provides a list of “mirror” sites that carry the material originally posted on the disabled WikiLeaks official site. “Let a thousand mirrors shine,” Barlow tweeted.
On the other hand, Larry Sanger, co-founder of San Francisco’s Wikipedia (no relation), says Assange is “an international outlaw,” and believes the New York Times and other papers that have taken feeds from WikiLeaks have “done something that could be really damaging to the United States.”
And so it goes.
Setting aside the debate on rights and wrongs, there is one thing of which we can be reasonably certain. Given what Rodric Braithwaite, a former British ambassador in Moscow, calls “the inherent openness of modern technology,” it’s difficult to see how the wave WikiLeaks represents can be stopped.
Indeed, the next tranche, Assange has promised, will hit U.S. corporations, beginning with a major bank. To follow: more from the financial industry, plus the energy and pharmaceutical sectors, he told Forbes.com this month. Based on his record, Assange probably isn’t just blowing smoke.
I’m not in a position to pontificate on the damage the leaks have supposedly done to U.S. foreign relations or to the practice of diplomacy as we know it. Nor, for example, whether information, contained in the cables, detailing potential terrorist targets around the world, endangers our war with al Qaeda. But I’m sure I’ve read about the Chinese government hacking into Google before.
Defense Secretary Robert Gates has called the current batch “embarrassing” and “awkward,” but not a “game changer.” The diplomatic fallout, he believes, will be “fairly modest.”
However, Gates was considerably angrier about earlier releases on the Iraq and Afghan wars, and with good reason. As noted by Harold Evans, former editor of the Times of London, “reckless disclosures” contained in 76,000 military documents about Afghanistan “identified dozens of Afghans credited with providing intelligence to the U.S. and thereby exposed them to a Taliban beheading.”
Evans was probably referring to a recent London Times report, which found WikiLeaks had not only identified individuals, but also their villages and their fathers’ names.
An example from the current release relates to a Los Angeles dentist, Hossein Vahedi, whose daring escape on horseback from Iran was recounted in one of the released cables. Vahedi, 75, lost his passport while visiting his parents’ graves and some family members in Iran in 2008.
“To protect his family and friends from retribution by the (government of Iran) after his absence was noted, he spoke to none of them of his escape plans,” the cable from the U.S. Mission in Turkey stated.
Well, now the government of Iran knows. “This is very bad for my family,” Vahedi told the New York Daily News when he learned the cable had been leaked. “How could this be printed?”
In addition to Assange and his enablers, the question might also be asked of others, including U.S. Army Pfc. Bradley Manning, now in solitary confinement at a military base in Quantico, Va.
Manning, 23, a reportedly unhappy low-level intelligence analyst in Iraq, has admitted packaging on rewriteable CDs and sending along to WikiLeaks more than 350,000 classified documents to which he had access on Pentagon-run computer systems.
“If you had unprecedented access to classified networks 14 hours a day, 7 days a week, for 8-plus months, what would you do?” Manning said in an instant message to a U.S. computer hacker.
Braithwaite called Manning’s alleged feat “an embarrassing technical failure” on the part of the Pentagon. “It is the job of governments to keep their secrets secret,” he wrote in the Financial Times.
The hacker, Adrian Lamo, who had done time for breaking into a New York Times computer, turned Manning in to the authorities as “an act of conscience.”
Blogging at sfgate.com/columns/bottomline. Facebook page at sfg.ly/doACKM. Tweeting @andrewsross. E-mail bottomline [at] sfchronicle [dot] com.
This article appeared on page D – 1 of the San Francisco Chronicle
Connecticut Sen. Joe Lieberman has been blasting WikiLeaks over the past week and successfully pressured Amazon.com to kick the organization’s content off its servers.
Lieberman kept up the attack on Tuesday. During a Fox News interview, Lieberman claimed that WikiLeaks is responsible for the “most serious violation of the Espionage Act in our history” and should be indicted in a U.S. court. But Lieberman then suggested that news organizations that published leaked material — originally obtained by WikiLeaks — may have also violated the Espionage Act.
“I’m not here to make a final judgment on that,” Lieberman said. “But to me the New York Times has committed at least an act of bad citizenship, but whether they have committed a crime, I think that bears very intensive inquiry by the Justice Department.” You can watch a clip of the Lieberman interview here, via Business Insider.
“We believe that our decision to publish was responsible journalism, legal, and important to a democratic society,” Times spokeswoman Danielle Rhoades Ha told The Cutline, noting that the paper’s editors addressed such issues in their note to readers that accompanied the WikiLeaks stories.
Lieberman and other politicians have been grabbing headlines lately for denouncing WikiLeaks and talking about throwing the site’s editor-in-chief, Julian Assange, in jail. But legal scholars are quick to point out the difficulty in actually shutting down the online organization or successfully trying Assange for espionage.
Lieberman isn’t the only senator talking about espionage. California’s Diane Feinstein similarly argued in the Wall Street Journal on Tuesday that Assange should be tried under the 1917 act.
Salon’s Glenn Greenwald shot back at the Assange critics who are invoking the Espionage Act. Greenwald pointed out that “every line of pro-prosecution rationale cited by Feinstein applies equally to journalists … especially the newspapers from around the world which are publishing all of the same diplomatic cables as WikiLeaks is, and which are publishing them before WikiLeaks even does.”
There’s a common misconception in the coverage on WikiLeaks — that the organization simply dumped 250,000 State Dept. cables online. That’s not the case. WikiLeaks has published less than 1,000 cables, and Greenwald is correct in noting that news organizations actually vetted the cables and published them before WikiLeaks put them online.
For that reason, Greenwald asked, “how can it possibly be that WikiLeaks should be prosecuted for espionage, but not the New York Times, or the Guardian, or any other newspaper that publishes these cables?”
Assange also questioned Tuesday why his organization— rather than news organizations publishing the material — is the one dealing with the “most vicious attacks and accusations from the U.S. government and its acolytes.”
WikiLeaks, a shadowy organization operating primarily overseas, is an easy target for U.S. political leaders. But Lieberman and other senators talking up the Espionage Act may find it much tougher getting support to go after the Times, or any news organization that relies on leaked documents to inform the public.
Attorney General Eric H. Holder Jr. said the Justice Department and Pentagon are conducting “an active, ongoing criminal investigation.” Others familiar with the probe said the FBI is examining everyone who came into possession of the documents, including those who gave the materials to WikiLeaks and also the organization itself. No charges are imminent, the sources said, and it is unclear whether any will be brought.
Former prosecutors cautioned that prosecutions involving leaked classified information are difficult because the Espionage Act is a 1917 statute that preceded Supreme Court cases that expanded First Amendment protections. The government also would have to persuade another country to turn over Assange, who is outside the United States.
But the sources, who spoke on the condition of anonymity because the inquiry is rapidly unfolding, said charges could be filed under the act. The U.S. attorney’s office in Alexandria – which in 2005 brought Espionage Act charges, now dropped, against two former pro-Israel lobbyists – is involved in the effort, the sources said.
The Pentagon is leading the investigation and it remains unclear whether any additional charges would be brought in the military or civilian justice systems. Pfc. Bradley Manning, an Army intelligence analyst suspected of being the source of the WikiLeaks documents, was arrested by the military this year.
Holder was asked Monday how the United States could prosecute Assange, who is an Australian citizen. “Let me be very clear,” he replied. “It is not saber rattling.
“To the extent there are gaps in our laws,” Holder continued, “we will move to close those gaps, which is not to say . . . that anybody at this point, because of their citizenship or their residence, is not a target or a subject of an investigation that’s ongoing.” He did not indicate that Assange is being investigated for possible violations of the Espionage Act.
Although the Justice Department has taken the position that media organizations could be prosecuted for printing leaked classified information under the legislation, that prospect is unlikely because of official aversion to running afoul of the First Amendment, experts said. Indeed, the Justice Department has never brought such a case, they said.
“Whenever you’re talking about a media organization, the department is going to look very closely to ensure that any prosecution doesn’t undermine the valid First Amendment functioning of the press,” said Kenneth Wainstein, former assistant attorney general in the national security division.
But when it comes to Assange, Jeffrey H. Smith, a former CIA general counsel, said: “I’m confident that the Justice Department is figuring out how to prosecute him.”
Smith noted that State Department general counsel Harold H. Koh had sent a letter to Assange on Saturday urging him not to release the cables, to return all classified material and to destroy all classified records from WikiLeaks databases.
“That language is not only the right thing to do policy-wise but puts the government in a position to prosecute him,” Smith said. Under the Espionage Act, anyone who has “unauthorized possession to information relating to the national defense” and has reason to believe it could harm the United States may be prosecuted if he publishes it or “willfully” retains it when the government has demanded its return, Smith said.
