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WikiLeaks.org posted over 76,000 secret government files online (Getty)
Michael Scherer of Time magazine in his article “Should The U.S. Kidnap WikiLeak's Founder Julian Assange?” rebutted former Bush speechwriter Marc Thiessen’s claim in The Washington Post that the U.S. can legally shut down the WikiLeaks site and arrest its founder Julian Assange even on foreign soil.
Mr. Thiessen, who also justified waterboarding as a legal interrogation technique, asserted that even though Assange is a non-U.S. citizen operating outside U.S. territory, the U.S. can employ a number of law enforcement, intelligence and military assets to bring him to justice. Thiessen states the U.S. has every right to go into any other country in the world providing haven for criminals like Assange and apprehend him without the host nation even knowing:
In 1989, the Justice Department's Office of Legal Counsel issued a memorandum entitled "Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities."
This memorandum declares that "the FBI may use its statutory authority to investigate and arrest individuals for violating United States law, even if the FBI's actions contravene customary international law" and that an "arrest that is inconsistent with international or foreign law does not violate the Fourth Amendment." In other words, we do not need permission to apprehend Assange or his co-conspirators anywhere in the world.
Scherer poses sarcastically: “Military assets?” And then says:
We can, apparently, just put a bag over his head as he orders a cappuccino in some Icelandic coffee shop and drag him off to. . . well, anywhere we want.
To be clear, Assange's crime, according to Thiessen, is intentionally receiving and republishing classified information, something that is done with some regularity in the United States by respectable and responsible reporters working for top flight news organizations. To adopt Thiessen's view, one would effectively have to reject the Supreme Court's opinion in New York Times Co. v. United States, the so-called Pentagon Papers case from 1971.
In the famous Pentagon Papers case, Justice Potter Stewart summed up the defense of free speech, as he wrote: "In the absence of governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the area of national defense and international affairs may lie in an enlightened citizenry -- in an informed and critical public opinion which alone can here protect the values of democratic government.. . . . Without an informed and free press, there cannot be an enlightened people."
Justice Hugo Black, with Justice William Brennan, added the following:
[W]e are asked to hold that, despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time. The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.
Scherer concludes by comparing Mr. Thiessen’s assertions to that of former President Richard M. Nixon’s:
The fact that Assange is a foreigner seems to make these questions easier for Thiessen. But there is little doubt that Thiessen is endorsing a similar claim to "inherent power," albeit through the military, that Richard Nixon asserted in 1971.
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