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Opinion:Alan Dershowitz: Is Julian Assange another Pentagon Papers case?

Assange arrest stirs strong reactions from foes, allies alike

Assange arrest stirs strong reactions from foes, allies alike The arrest of WikiLeaks founder Julian Assange sparked passionate reactions from foes and allies alike on Thursday. Supporters branded his arrest by British police an assault on freedom and a trampling of asylum protections, while his enemies hailed it as an overdue step towards justice. The revelation that, on top of charges of breaking bail conditions, he was also arrested under a US extradition warrant kept secret for long -- as he had long claimed, often to scorn -- heightened the drama surrounding his detention.

Alan Dershowitz: Is Julian Assange another Pentagon Papers case?© Getty Images Alan Dershowitz: Is Julian Assange another Pentagon Papers case?

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

Before WikiLeaks founder Julian Assange gained asylum in the Ecuadorian embassy in London in 2012, he and his British legal team asked me to fly to London to provide legal advice about United States law relating to espionage and press freedom. I cannot disclose what advice I gave them, but I can say that I believed then, and still believe now, that there is no constitutional difference between WikiLeaks and the New York Times.

Julian Assange's seven-year stay inside a London embassy

Julian Assange's seven-year stay inside a London embassy Julian Assange's refuge at the Ecuadorian embassy in London has come to an end. The Wikileaks founder had been living in the embassy since 2012, after the South American country granted him political asylum. require(["medianetNativeAdOnArticle"], function (medianetNativeAdOnArticle) { medianetNativeAdOnArticle.

If the New York Times, in 1971, could lawfully publish the Pentagon Papers, knowing that it included classified documents stolen by Rand Corporation military analyst Daniel Ellsberg from our government, then WikiLeaks was entitled, under the First Amendment, to publish classified material that Assange knew was stolen by former Army intelligence analyst Chelsea Manning from our government.

So if prosecutors were to charge Assange with espionage or any other crime for merely publishing the Manning material, this would be another Pentagon Papers case with the same likely outcome. Many people misunderstand the actual Supreme Court ruling in the 1971 case. It did not say that the newspapers that were planning to publish the Pentagon Papers could not be prosecuted if they published classified material. It only said they could not be restrained – that is, stopped in advance – from publishing them. They did publish, and they were not prosecuted.

Lawmakers call for immediate extradition of Assange

Lawmakers call for immediate extradition of Assange The WikiLeaks founder was charged by U.S. officials with conspiring to hack into government computers.

The same result would probably follow if Assange were prosecuted for publishing classified material on WikiLeaks, though there is no guarantee that prosecutors might not try to distinguish the two cases on the grounds that the New York Times is a more responsible media outlet than WikiLeaks. But the First Amendment does not recognize degrees of responsibility. Indeed, when the First Amendment was written, our nation was plagued with irresponsible scandal sheets and broadsides. No one ever described political pamphleteers Thomas Paine or James Callender as responsible journalists.

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: conspiracy to help Manning break into a government computer to steal classified material. Such a crime, if proven beyond a reasonable doubt, would have a far weaker claim to constitutional protection. The courts have ruled that journalists may not break the law in an effort to obtain material whose disclosure would be protected by the First Amendment.

Takeaways from the case of WikiLeaks founder Julian Assange

Takeaways from the case of WikiLeaks founder Julian Assange Julian Assange's arrest on Thursday in the Ecuadorian Embassy in London opens the next chapter in the saga of the WikiLeaks founder: an expected extradition fight over a pending criminal prosecution in the United States. require(["medianetNativeAdOnArticle"], function (medianetNativeAdOnArticle) { medianetNativeAdOnArticle.

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 government agencies. It alleges that "Manning provided Assange with part of a password" and that "Assange requested more information." But it goes on to say that although Assange had "been trying to crack the password," he had "no luck so far." Not the strongest set of facts!

The first question is whether a legal theory based on such inchoate facts will be sufficient for an extradition request to be granted. Even if it is, a grant of extradition could be appealed through several layers of courts, which would take a long time. The second question is what would happen to Assange while these appeals proceeded. If he were locked up, he might well waive extradition in the hope of winning his case in the United States. The third question is whether American prosecutors might amend the indictment to make it legally and factually stronger and, if they did, whether they would do so before or after he was extradited.

Assange: A Self-Proclaimed Foe of Secrecy Who Inspires Both Admiration and Fury

Assange: A Self-Proclaimed Foe of Secrecy Who Inspires Both Admiration and Fury The shaky video clips of Julian Assange’s arrest flashed around the world on Thursday, the white-bearded prophet of the age of leaks being hauled by unsmiling security officers to a gray van marked Police. “We must resist!” he cried. “You can resist!” It was a scene that the very image-conscious Mr. Assange might appreciate: one man literally fighting the all-powerful state. It was also the latest — and surely not the last — dramatic turn in a career marked by both brilliant achievement and dubious judgment. Mr.

The last question is whether Manning will testify against Assange. It is not clear whether prosecutors really need her testimony or whether they can make the case based on emails and other documents, but her testimony surely would be helpful if she were to corroborate or expand on the paper trail. President Obama commuted her sentence in 2017 and she was freed from prison, but she was jailed last month for refusing to testify against Assange before a grand jury. She could be given immunity from further prosecution and compelled to testify. But if she refused, would they keep her in prison?

There are lots of moving parts to this process, all of which make its outcome and timetable unpredictable.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is "The Case Against the Democratic House Impeaching Trump." You can follow him on Twitter @AlanDersh.

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