Assange Advocates Have Gone Off The Rails – Of Course Assange Has Constitutional Rights In A US Criminal Court Proceeding
The End (Free Assange!) Does Not Justify The Means
Opportunistically Making Right Wing Legal Arguments And Suppressing Critics
Last night, I read an article about the Assange extradition case in the UK at Consortium News, an outfit I strongly support, see:
I was shocked to read that Assange’s legal advocates were arguing that he did not have Constitutional Rights in the US, most critically, the protection of the First Amendment and that Consortium News was reporting this as a fact:
In USAID v. Alliance for Open Society, the U.S. Supreme Court ruled in 2020 that non-U.S. citizens outside the U.S. don’t possess constitutional rights. Both former C.I.A. Director Mike Pompeo and Gordon Kromberg, Assange’s U.S. prosecutor, have said Assange does not have First Amendment protection.
Because of the separation of powers in the United States, the executive branch’s Justice Department can’t guarantee to the British courts what the U.S. judicial branch decides about the rights of a non-U.S. citizen in court, said Marjorie Cohn, law professor and former president of the National Lawyers’ Guild.
“Let’s assume that … the Biden administration, does give assurances that he would be able to raise the First Amendment and that the [High] Court found that those were significant assurances,” Cohn told Consortium News‘ webcast CN Live! last month.
So I submitted a reader comment to clarify this issue by writing that the Constitution and Bill of Rights apply to all “persons”, not just US citizens and to distinguish the case cited (i.e.USAID/Open Society) as mistakenly applied and not applicable to the Assange case, which involves a criminal prosecution in US courts on US soil involving 1st Amendment rights of a publisher and individual.
Shortly thereafter, I got a highly unusual email from Consortium News editor and reporter on this story Joe Lauria, I man I have high regard for and never interacted with before.
Challenging my comment, Joe wrote:
You write: There are plenty of cases that found that the Bill of Rights applies to all “persons”, not just US Citizens
Can you please provide several examples of these cases?
I replied, taking exception to Joe’s challenge of a reader comment and demand for case law support:
Joe – first of all, I note that you have not posted my comment.
Second, it has LONG been the legal and political position of the ACLU and NLG that the bill of rights and the constitution applies to “people” (not just US citizens).
This is obviously the progressive position to advocate. Despite the fact that it may be more advantageous to deny this legal and political position in the Assange case as a rationale to get the charges dismissed, the larger impact is to undermine a long held and important legal position. This is hypocrisy I must call out.
We are not talking about military tribunals and the Yoo memo.
I am not a lawyer, but a quick Google suggests several cases:
Plyler V. Doe (1982)
https://www.oyez.org/cases/1981/80-1538
“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U. S. 206, 345 U. S. 212 (1953); Wong Wing v. United States, 163 U. S. 228, 163 U. S. 238 (1896); Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U. S. 67,426 U. S. 77 (1976). [Footnote 9]
Here is a law review article: (Georgetown law)
“the [Supreme] Court has insisted for more than a century that foreign nationals living among us are “persons” within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. Because the Constitution expressly limits to citizens only the rights to vote and to run for federal elective office, equality between non-nationals and citizens would appear to be the constitutional rule.”
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub
I could do real research on this if I had to – but I really would rather not.
The point is, in the ambiguity, the principled posture we should be taking is that all persons have US Constitutional rights – especially criminal defendants and First amendment rights – despite the fact that this may undermine the narrative or legal tactics on Assange.
Wolfe
Joe fired back, digging his hole even deeper, by making another absurd distinction. Joe wrote:
First of all, we have not published your comment because we need you to back up what you claim. You have provided just one example, and it is not applicable. “The [Supreme] Court has insisted for more than a century that foreign nationals living among us are ‘persons’ within the meaning of the Constitution,” it says.
Assange is not living “among us.” He has been abroad the entire time and the Supreme Court case being cited deals with foreign nationals living abroad.
We are not an advocacy site but a news organization. Marjorie Cohn is a lawyer and she knows what she is talking about.
First of all, Joe is confusing Marjorie Cohn’s valid point about separation of powers with the US Constitution and Supreme Court’s doctrine on how the Constitution applies to foreign nationals!
Second, he is flat out wrong, because Assange will be tried in the US in US courts! He will not be on foreign soil.
Third, he provided a false justification for not publishing my comment. Virtually no reader comments at Consortium News are required to provide factual support of their comments, never mind multiple case law support. That’s just a lie. Go and read the comments! Some are insane!
And Joe responded further with flat out lies, claiming that all comments on Consortium News articles are required to be supported by facts. Joe wrote:
You are wrong. We always require backing up with facts, that’s why we don’t publish a lot of comments. Secondly you are wrong because the case you cited refers to non US citizens living inside the US when the Assange case is about someone outside the US.
The Assange supporters are off the rails on the First Amendment issue.
They are taking a diametrically opposite view of the US Constitution than the ACLU and National Lawyers Guild have advocated for decades!
And Joe Lauria is suppressing dissent.
Both the ACLU and National lawyers Guild have long argued that the Constitution and the Bill of Rights apply to all “persons” not just US citizens. Now, because it helps their legal case in UK extradition, they are claiming that he does not have those rights. Why would a left – progressive legal advocate (ACLU, NLG) argue that foreign nationals do NOT have Constitutional rights while being prosecuted in US Courts on US soil? Even the New York Times’ lawyers support that view.
The law is clear – Assange has free speech and due process rights here in the US.
Skeptics don’t need to take my word for it – read this law review article: (Georgetown Law Review)
Are Foreign Nationals Entitled to the Same Constitutional Rights
As Citizens?
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub
The end (free Assange) does not justify the means!!!
[End Notes:
1. In case it’s not clear, I am stating that the Constitution applies to the crimes alleged, as well as to the judicial process, ie. that Assange can seek dismissal based on claims that his actions were 1st amendment protected.
2. Here is the superseding Indictment of Assange – almost everything he is accused of is the function of a reporter and/or a publisher:
https://www.justice.gov/opa/pr/wikileaks-founder-charged-superseding-indictment
3. Even The NY Times’ lawyers wrote that, so it is shocking that Assange’s defenders have not and instead made the opposite point. Read the NY Times editorial:
4. For those who suspect I’m some right wing troll, see this post from 2011:
[Update: 4/19/24 – I am getting strong pushback on this – so here is my reply to the Assange supporters I am criticizing:
You miss my point. Of course, I oppose extradition and am completely aware of the murderous persecution intentions of US DoJ (driven by CIA).
Strategically, my point is that the extradition arguments and activism should not undermine First Amendment activism. Instead of saying Assange does NOT have 1stA rights, activist should HIGHLIGHT the violation of 1st Amendment that the indictment represents. This could maximize pressure on Biden, who is politically vulnerable right now.
Legally, the Assange legal team, (if extradited) would file a motion to dismiss, based on violation of the 1st A. This is legally solid and could provide political cover for Biden to defy the CIA and rescind the indictment, or file a brief with the court in agreement with Assange and let the Judge dismiss.
This is not only the best political strategy, it may be the only legal strategy available, as it’s obvious that the deal is in. More delay just means Assange dies in Belmarsh. Fight Biden on this now, when he is desperate politically. Even The NY Times would back that fight.
The repression happening at Columbia University right now is the Berkeley Free Speech moment. The tide is turning in our favor. Timing is right for massive street heat.