Attorney, Buchanan Ingersoll and Rooney
Tuesday, December 7, 2010; 12:30 PM
Julian Assange, the founder of the WikiLeaks Web site whose release of sensitive U.S. documents on the Internet has generated outrage and embarrassment in official circles, was denied bail Tuesday after he was arrested by British police on a Swedish warrant for alleged sex crimes.
Stuart Slotnick, attorney with Buchanan Ingersoll and Rooney, was online Tuesday, Dec. 7, at 12:30 p.m. ET to discuss the legal issues of Assange and WikiLeaks.
Slotnick concentrates his practice in commercial litigation, white-collar and government investigations, civil litigation, intellectual property, medical malpractice, mass tort litigation, products liability litigation and personal injury litigation.
Stuart Slotnick: Stuart Slotnick attorney and managing shareholder of Buchanan Ingersoll & Rooney's New York City Office is available to discuss the WikiLeaks potential prosecution and developing news relating to Julian Assange's arrest in the United Kingdom.
San Antonio, Tex.: I assume that the statute that would be used against Assange is 18 USC 793(e), which starts out "Whoever having unauthorized possession" (of defense-related stuff). There is nothing limiting who the "whoever" might be, nor how they came into possession of the material, nor indeed that the material be of U.S. government provenance, let alone that it be classified.
If such a prosecution were to succeed, I'd think it would be a tremendous step toward establishing 18 USC 793 as an official secrets act of great scope.
Stuart Slotnick: You are correct that the DOJ will consider using 18 USC 793(e) as a basis to prosecute Assange, however, the government must prove that Assange has "reason to believe [the information disclosed] could be used to the injury of the United States or to the advantage of any foreign nation." Look at 18 USC 798 which proivides that "Whoever knowingly and willfully...makes available to an unauthorized person..prejudicial to the safety or interest of the United States... concerning the communication intelligence activities of the United States..." This may be a better fit.
Washington, D.C.: Is there any existing legal basis for Assange to be prosecuted in the United States?
Stuart Slotnick: We can expect that the DOJ will charge Assange in the United States based upon the harm that he has caused to the United States and the connections that Asssange has to the USA. We await to see the chain of events that allowed Assange to receive the classified materials.
Washington, D.C.: If Assange can be prosecuted in the United States, why not the New York Times?
Stuart Slotnick: The argument is that once the information is declassified by the worlwide disclosure that it can no longer be considered to be classified.
Washington, D.C.: If the American public becomes hysterical and demands that Assange be sentenced to life in prison without parole, and if a federal judge and jury sentence him to that exactly, would President Obama still be able to pardon Assange before leaving office?
Stuart Slotnick: Presuming Assange is convicted in the United States, a Federal Judge would impose a sentence that is allowable under the law. And, any President, now or in the future, may be able to pardon him. I would not bet on it.
Virginia Beach, Va.: What happens when someone is killed or hurt (via terrorist or targeted attack) as a direct result of stolen classified/sensitive information posted by WikiLeaks? It seems that at that point Mr. Assange would be liable.
Stuart Slotnick: Depending on the connection between disclosure of the confidential information and the damage that occurs, the discloser could face potential liability.
Bowie, Md.: Why deny him bail on the charges in Sweden? And how long could he sit in jail?
Stuart Slotnick: Bail was denied based upon Assange's risk of flight. Assange will remain in jail in the UK until he is either extradited to Sweden or extradition is denied. If Assange fights extradition, he could be in the UK for a lengthy period of time.
Arlington, Va.: Has INTERPOL ever issued a warrant (or whatever they call it) for anyone accused of rape before?
Stuart Slotnick: INTERPOL recognizes felony arrest warrants by participating countries.
Rockville, Md/\.: Without diminishing the allegations of sexual assault/misconduct in Sweden, is it the usual course of practice to involve Interpol and aggressively pursue alleged offenders, or is this an extraordinary action by Sweden (presumably) due to the celebrity of the alleged offender?
Stuart Slotnick: Sex offenders are frequently sought across international boundaries. For every celebrity case that you hear of, there are many more that are unknown to the public.
Washington. D/: Is the Espionnage Act really the appropriate avenue to prosecute Assange? Some say the act is archa´c and that the Obama administration would be placed in an awkward political position using it...
Stuart Slotnick: If the acts fit within the plain language of the statute, it will be used. Although it has been the subject to criticism, we would not be surprised to see it put into play in this situation.
Washington, D.C.: Is it possible the U.S. or other governments would try to nail Assange or others who work for Wikileaks (we haven't spoken about his employees being culpable yet) on other charges not related to espionage - such as tax evasion?
Stuart Slotnick: Good question. YES. We may see that other governments allied with the USA bring charges against Assange, either related or unrelated to the disclosure of classified information.
Abuja, Nigeria: As far as I'm concerned Assange's arrest and denial of bail only goes to show that the proponents of freedom of the press around the world are not prepared to play by the rules when the table is turned on them. What makes it okay for WikiLeaks to expose perceived enemies like Iran, al Qaeda, Russia, etc., and not the allies?! This is double standard manifesting itself before our very eyes. Nevermind the sexual allegations because it is common knowledge that U.S. officials have been exploiting avenues to have him prosecuted ... They are bound to get him sooner or later anyway, for daring to do the unthinkable.
Stuart Slotnick: Your point, will be related to Assange's defense if he is ever brought to the USA to face charges. The jury will have to balance two competing and emotional appeals; one from Assange and one from the United States.
Washington, D.C.: Some years ago a French court would not send back Ira Einhorn because he was charged with capital murder, and the French would not send an accused defendant to a country that might execute him or her if found guilty. If prosecutors in America charge Assange with crimes that could carry the death penalty, would either Britain or Sweden refuse to extradite him here?
Stuart Slotnick: You are correct that the death penalty has been used as a basis for refusing extradition in the past. A standard extradition treaty provides that the crime charged in the country seeking extradition is also a crime in the country where the individual is being held pending extradition.
Harrisburg, Pa.: How much legal reach does the U.S. Justice Department have in this case?
Stuart Slotnick: That question is one that will be debated by Assange's defense team. They will argue that the USA does not have jurisdiction over him based on his lack of contact with the USA. The DOJ may argue either that Assange's contacts in the USA or the harm caused to and in the United States is enough to establish jurisdiction over Assange.
washingtonpost.com: This concludes our discussion with Stuart Slotnick. Thank you for joining.
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