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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:

• US Issues Assurances on Assange

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)

• Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?

“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:

• Julian Assange’s Indictment Aims at the Heart of the First Amendment

4. For those who suspect I’m some right wing troll, see this post from 2011:

• Free Bradley Manning

[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.

Thoreau Set The Moral Standard

Genocide And Nuclear Threats Violate It

Henry Thoreau set the moral standard on whether a citizen had an obligation to withhold payment of  federal income tax and go to jail in his famous essay, see:

• Tax Day Essay: “On Civil Disobedience”

Thoreau could not pay his taxes because his money would support the federal government’s policies on slavery and the invasion of and imperial war on Mexico.

Thoreau wrote:

If one were to tell me that this were a bad government because it taxed certain foreign commodities brought to its ports, it is most probably that I should not make an ado about it, for I can do without them. All machines have their friction; and possibly this does enough good to counterbalance the evil. … But when the friction comes to have its machine, and oppression and robbery are organized, I say, let us not have such a machine any longer. In other words, when a sixth of the population of a nation which has undertaken to be the refuge of liberty are slaves, and a whole country is unjustly overrun, and conquered by a foreign army, and subjected to military law, I think that it is not too soon for honest men to rebel and revolutionize. What makes this duty the more urgent is the fact, that the country so over-run is not our own, but ours is the invading army.

The United States government currently is replicating similar moral atrocities in the Ukraine proxy war, the dirty war on Syria (and others), and the support of Israel’s genocide and ethnic cleansing in Gaza and the West Bank.

Similarly, the Biden administration has engaged in warmongering and gunboat diplomacy on Taiwan and China.

The US Congress is appropriating hundreds of billions of taxpayer dollars on war.

Nuclear armageddon is on the table.

Thus, the case for taxpayer revolt and rebellion is well beyond and far more egregious than Thoreau’s historical origins.

Today, I filed my taxes and pledged to pay on line at some future point.

I hoped that this might be part of the tax revolt movement and send a signal to IRS and the federal government.

But, first of all, my tiny tax burden will have no impact and to be honest, if push comes to shove, I’m willing to pay late fees but I am a coward and am not willing to go to jail, even for Thoreau’s brief incarceration. Been there and done that, and just one night in jail is enough to drive a man insane.

I am so sickened by my government and I’m not sure what else to do, but starving the military beast is clearly justified and necessary.

When the government supports genocide in my name and with my tax dollars, in principle I’m with Hannah Arendt:

As Hannah Arendt wrote in “The Origins of Totalitarianism,” the only morally reliable people are not those who say “this is wrong” or “this should not be done,” but those who say “I can’t.” They know that as Immanuel Kant wrote: “If justice perishes, human life on earth has lost its meaning.” And this means that, like Socrates, we must come to a place where it is better to suffer wrong than to do wrong. We must at once see and act, and given what it means to see, this will require the surmounting of despair, not by reason, but by faith.

What I lack is the courage of my convictions (in terms of going to jail).

NJ Spotlight Reporting Obscures Major Policy Debate

Once Again, Costs Are Elevated Above Public Health

Yet, after several years and many stories misleading readers by praising DEP’s leadership on regulation of PFOA/PFNA, forever chemicals, NJ Spotlight’s coverage obfuscated critical issues in favor of a focus on costs – which is just what the Chamber of Commerce, NJ BIA, Big Oil, Big Pharma, and the Chemistry Council ordered.

We wrote last week about EPA’s adoption of stringent national drinking water standards for “forever chemicals” PFOA’s to emphasize the State DEP’s lax and overly praised NJ DEP State standards, see:

• EPA Drinking Water Standard For “Forever Chemicals” PFAS Exposes Less Stringent NJ DEP Standard

NJ Spotlight picked up the story today, but of course ignored our work. So let me take a moment to outline the flaws in their coverage.

The purpose of my initial post was to highlight the Murphy DEP’s quiet reversal of the “federalism” aspects of NJ’s historically more stringent State standards adopted by DEP.

For over 30 years, NJ DEP adopted a series of more stringent air pollution, water quality, toxic site cleanup, hazardous and solid waste waste management, and chemical safety standards than their minimum federal counter-parts. That is the federalism policy built into federal environmental laws, which allows State’s to adopt more stringent State standards, based on local conditions and State priorities.

This more stringent State regulatory policy was justified by NJ’s historical petro-chemical industrial pollution legacy and the nation’s greatest population density. The policy was strongly opposed by the NJ business community, due to higher compliance costs.

The policy lasted until 1994, when Gov. Christie Whitman issued Executive Order #27, which effectively rolled back stricter NJ DEP State standards.

EO #27 mandated a cost-benefit justification for stricter State standards, and discouraged the adoption of any new stricter State standards, instead relying on US EPA federal standards:

WHEREAS, New Jersey must simultaneously move toward reducing redundant and unnecessary regulation that dulls the State’s competitive advantage while being ever vigilant in the protection of the public’s health, safety and welfare; and

WHEREAS, New Jersey’s administrative agencies should consider applicable federal standards when adopting, readopting or amending regulations with analogous federal counterparts; and

WHEREAS, New Jersey’s administrative agencies should analyze whether analogous federal standards sufficiently protect the health, safety and welfare of New Jersey citizens; …

I … do hereby ORDER and DIRECT:

1. On or after the effective date of this Order, each administrative agency that adopts, readopts or amends any rule or regulation described in section 2 of this Order shall, in addition to all requirements imposed by existing law and regulation, include as part of the initial publication and all subsequent publications of such rule or regulation, a statement as to whether the rule or regulation in question contains any standards or requirements which exceed the standards or requirements imposed by federal law. Such cost-benefit analysis that supports the agency’s decision to impose the standards or requirements and also supports the fact that the State standard or requirement to be imposed is achievable under current technology, notwithstanding the federal government’s determination that lesser standards or requirements are appropriate.

The Whitman federal consistency policy and cost-benefit analysis were never formally repealed and remain in DEP practice, but the policy was effectively reversed by the McGreevey DEP in 2002, and later Codey and Corzine Administrations.

But the Whitman federal consistency/CBA policy rollback was restored and expanded by Gov. Chris Christie’s anti-regulatory package of Executive Orders issued on his first day in Office under Executive Orders #1 (regulatory moratorium) Executive Order # 2 (regulatory relief), Executive Order #3 (Red Tape review), and Executive Order #4 (abdication of State role to local government).

(Christie’s first day in office regulatory attack later became the model for President Trump, who did EXACTLY the same thing his first days in Office).

Gov. Murphy repealed Christie’s Executive Order #2 via Executive Order #63, see:

• Gov. Murphy’s Executive Order On Regulatory Policy Raises Major New Concerns

This entire debate, which sacrifices public health and the environment to industry compliance costs, was obfuscated by NJ Spotlight’s coverage.

Here it is: (NJ Spotlight)

The federal agency [EPA] has long been under pressure from public health and environmental advocates to set national standards to protect public health from PFAS in drinking water. The absence until now of federal rules led states including New Jersey to set their own regulations for the most common PFAS chemicals.

Did you see how they did that?

The “absence of federal regulations” is NOT why DEP adopted a NJ State standard.

NJ adopted the State standards for “forever chemicals” to protect public health.

They did so under a NJ State law (the NJ Safe Drinking Water Act) that is explicitly more stringent than the federal Safe Drinking Water Act, sets an explicit numeric cancer risk standard (1 in a million), and does not authorize consideration of costs.

This NJ law has long authorized DEP to adopt State standards for more chemicals that were NOT regulated by EPA and at a stricter level.

I explained all that in my prior post.

Here how NJ Spotlight superficially covered this critical debate:

Until then [i.e the lengthy 5 year compliance period under EPA rules], New Jersey will continue to apply its own PFAS standards. But the state’s regulation of three common PFAS chemicals — PFNA, PFOA and PFOS — is less strict than the new benchmarks set by the federal government and some advocates are asking whether the state’s standards are fully protecting the public.

The state rules “are not as protective as the new standard,” said Andy Kricun, former head of the Camden County Municipal Utilities Authority, which provides water and wastewater services to the South Jersey county. “That is absolutely a concern.”

That means you will be drinking unsafe water for at least 5 more years.

That means DEP’s over the top claim of “national leadership” is spin, see DEP press release:

• Affirming National Leadership Role, New Jersey Publishes Formal Stringent Drinking Water Standards for PFOA and PFOS (2020)

And those health, safety, and environmental pollution concerns are not limited to PFOA, PFNA and PFOS – but to everything DEP does.

Yet, after several years and many stories misleading readers by praising DEP’s leadership on regulation of PFOA/PFNA, forever chemicals, NJ Spotlight’s coverage obfuscated critical issues in favor of a focus on costs – which is just what the Chamber of Commerce, NJ BIA, Big Oil, Big Pharma, and the Chemistry Council ordered.

Murphy DEP Reverses Historical Role Of DEP Adopting More Stringent State Standards

The US EPA just adopted a national drinking water standard (known as an “MCL”) for the “forever chemicals” PFAS.

The EPA national standard is 4 ug/L – 4 parts per trillion*.

In contrast, the NJ DEP – highly touted as a national leader on PFAS regulation by the cheerleading NJ press corps and environmental groups – adopted a far less stringent NJ State drinking water standard of 14 ug/L, more than 3 TIMES higher than the EPA national standard.

NJ legally is forced to comply with the federal EPA far lower and more protective MCL public health standard.

Historically, the NJ DEP has adopted NJ State standards that are far more stringent than federal minimums.

These more stringent NJ State standards are authorized by the NJ Safe Drinking Water Act, which, in contrast to the federal Safe Drinking Water Act, prohibits consideration of costs and establishes a 1 in one million individual lifetime cancer risk standard, both of which NJ State standards are far more stringent that the federal EPA risk range of 1 in ten thousand to 1 in a million and which allows consideration of costs.

Yet despite this federal EPA regulatory action that exposes the NJ DEP standard as less protective of public health – a reverse of NJ’s 30 year history – DEP issued a favorable press release that ignored all that.

A reasonable and humble response from NJ DEP would be to applaud EPA for following the science and pledging to strengthen NJ’s standards and do better.

But instead of a muted and low profile NJ DEP response, DEP Commissioner LaTourette decided to deflect attention from the embarrassing reality of DEP’s lax NJ State standard and the betrayal of 30 years of DEP adopting far more stringent NJ State standards.

Read the DEP press release – and never trust these people again:

• GOVERNOR MURPHY, COMMISSIONER LATOURETTE STATEMENTS ON U.S. EPA’S LANDMARK ADOPTION OF FEDERAL PFAS STANDARD

*typo corrected

DEP Created And Gov.’s Office Approved A $142,500 Political Job In Record Time

Crony Hire Was Former Colleague Of DEP Assistant Commissioner Cecil, Who Conducted The Interview

No Job Postings, Solicitation, Or Competitive Civil Service Safeguards

This one smells so bad that I think I’m going to refer it to the Attorney General’s Office of Public Integrity And Accountability.

The Murphy DEP just made a highly unusual hiring decision that raises multiple red flags.

The DEP recently hired a former NJ Audubon staffer into a $142,500 job, with excellent benefits. Nice work if you can get it.

The job title is “Government Representative 2” – in other words, a lobbyist, not a scientist, engineer, planner, or technician who make up the large majority of DEP staff.

The individual hired is a former colleague of DEP Assistant Commissioner John Cecil, who worked under his management control at NJ Audubon.

Mr. Cecil has ethical issues for his failure to disclose and recuse from DEP decisions related to his prior work at NJ Audubon, which included controversial logging on State lands and multiple “corporate stewardship” projects, including one at Donald Trump’s golf course in Bedminster.

Given these conflicts, one would think that Mr. Cecil would tread lightly and refrain from involvement with NJ Audubon issues.

One would be wrong.

Here’s DEP OPRA reply:

She [Ms. Meistrell] was interviewed on 10/05/23 by AC David Golden, AC John Cecil, and Lisa Barno.

It seems like Ms. Meistrell’s interview on 10/5/23 preceded the creation of her position. Another unusual situation (see below chronology).

Assistant Commissioner Cecil was involved in the creation of the new position, he participated in the interview, and he made the hiring decision – of a former colleague (we will discuss their shared controversial and deeply flawed pro-logging policy views in a future post).

Thus, Mr. Cecil compounded his prior ethical disclosure and recusal lapses with gross cronyism (at a minimum).

But it gets worse.

First, let me explain the unusual timing: (source: verbatim from DEP OPRA response):

The [hiring] request from the Program was submitted in Hiring & Recruitment Platform (HARP) on 12/21/23.  Governor’s Office approval was received on 02/01/24 and CSC approval was received on 02/14/24.

I worked at DEP for almost 14 years, 3 years as a political appointee approved by the Governor, and many times personally walked important documents that required DEP Managers and the Governor’s Office approvals, so I know first hand how cumbersome the system is. Under tight budgets and hiring limits, it is very difficult to create new positions, particularly in the $142,500 salary range.

In this case,  that all happened incredibly fast, and with several holidays slowing things down. This hiring required approvals of the DEP Assistant Commissioner (John Cecil), the DEP Assistant Commissioner for personnel or Management And Budget, and DEP Commissioner LaTourette. Then the Gov.’s Office and Civil Service and Treasury had to certify available funds.

Second, let’s take a look at the job position itself.

According to DEP OPRA response I just received: (these are verbatim quotes):

There was no Notice of Vacancy (NOV) posted for this unclassified position,

This is an unclassified appointment.

There was no Civil Service exam because this is an unclassified, at-will position.

There was no job posting for this unclassified appointment.

There was no job posting for Ms. Meistrell’s position.

Now that is a truly stunning example of cronyism, special treatment, ethical lapses, and abuse of power.

We will explain the implications for managing State forests and natural resources in an upcoming post.

Meantime, consider:

2C:30-2. Official misconduct

A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:

a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner; or

b. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.