Thiessen: US Law Applies Most Outside of US

Arguing that Wikileaks founder Julian Assange’s (who is neither a US citizen nor a US resident) document dump on the War in Afghanistan is a criminal act (a violation of the Espionage Act and, possibly, material support for terrorists) requiring his prosecutionm, Marc Thiessen writes:

“Assange is a non-U.S. citizen operating outside the territory of the United States. This means the government has a wide range of options for dealing with him.”

Wait…what? 

This is quite the astounding claim Thiessen is making here.  He is quite literally arguing that the power of the US government to prohibit the disclosure of information that it – and it alone – designates as sensitive is strongest when the person making the disclosure is neither an American citizen nor a resident of the US.  Think about that for a moment.  Then think about the cognitive dissonance involved in Thiessen simultaneously decrying the injustice of and impropriety of other countries’ attempts to pass “laws of universal jurisdiction.” 

The message that Thiessen would like to send is quite clear: “the United States may pass laws of universal jurisdiction….and no one else; the law of the United States is binding on every single person in every single country in every corner of the globe.”

Perhaps I am overstating things a bit, though I don’t think so.  Ask yourself, then, would we find it acceptable if China or Myanmar adopted the standard Thiessen proposes here?  Would we be willing to cooperate if China demanded that we turn over an American journalist who – despite obtaining the information solely while sitting behind his home computer – wrote an article describing the location of Chinese political prisoners or the names and villages of secret police or some other set of information that the Chinese government deemed classified as a matter of their national security?  Of course not – we would point to that thing we call the First Amendment and specifically to “freedom of the press”; we might also point out that our citizens cannot possibly be bound by the Chinese government’s system of classifying information. 

The purpose here is not to compare the morality of the US’ actions in Afghanistan and the anti-dissident activities of the Chinese government.  Instead, it’s merely to point out the absurdity of the suggestion that foreign citizens acting entirely within foreign jurisdictions are in some way legally bound by the censorship decisions of middle and low-level bureaucrats in the United States.   

The fact is that whatever one may think of Assange’s actions, he is an individual who is bound by no oath of loyalty to the United States, has never willingly subjected himself to the laws of the United States in any material manner, and has not committed any acts of violence against any citizens or property of the United States.* 

That Iceland, Belgium, Sweden, and other places where Assange operates are members of NATO is utterly irrelevant.  While the US would certainly have a right to complain if these governments were themselves behind the disclosures, Assange is an individual with no affiliation with any of these governments.  Moreover, saying that Assange operates in countries that are members in NATO is a far cry from saying that Assange operates in locations that are subservient to the United States government.  NATO allies are not American states, whatever Thiessen and his ilk might wish to believe. 

Making disclosure by a private American citizen of information the United States government’s bureaucrats deem classified a criminal act is a fairly clear infringement of free speech protections in the first place, even if it is an infringement that American courts have found permissible and necessary.  But despite the many times that newspapers in the United States have published information deemed classified for national security purposes, there is not a single instance that I can find where the press organization was itself prosecuted under the Espionage Act, even if there are examples of the source himself being prosecuted thereunder. 

If there is no real precedent for the prosecution of the domestic press itself for the publication of classified information, it is difficult to see how the United States would have the right to prosecute, much less demand the extradition of, a member of the foreign press for publishing such information.  It is even less clear why the United States would have the right to dictate restrictions on free speech to allied, sovereign nations. 

*I am aware of cases where foreign spies were prosecuted under the Espionage Act for activities occuring entirely outside the geographical boundaries of the United States.  However, those cases are readily distinguishable as they involved actual state-sponsored espionage where the prosecuted person was ultimately arrested in the United States. US v. Zehe, 601 F. Supp. 196 (D. Mass. 1985).  There are no cases of which I’m aware where publication of classified information by a media outlet, much less a foreign media outlet, gave rise to a prosecution under the Espionage Act.