Reply #51: Look at the underlying statutes. 18 USC Sec. 641 and Sec. 793 of the Espionage Act [View All]

[leveymg]

To make a case of conspiracy, the gov't will have to prove that Assange violated one or both of the following laws related to 1) conversion of government property and/or 2) receipt of classified materials with intent to commit Espionage:

The theory of potential prosecution for theft hinges on a 1988 Denial of Cert in the Morison case.

In 1988, Samuel Morison, an employee of the US Dept. of the Navy, unsuccessfully filed cert to remain free on bond after he was convicted of stealing classified U.S. satellite photos of a Soviet aircraft carrier under construction and selling the photos to Jane's Defense Weekly as part of consulting fees amounting to more than $300. The magazine and its editors were not prosecuted. Morison was convicted of two charges, one related to conversion of gov't property and the second under Sec. 793 of the Espionage Act. See, http://supreme.justia.com/us/486/1306/case.html

The government's argument in that case was laid out in the brief, below: http://www.justice.gov/osg/briefs/1988/sg880401.txt

SAMUEL LORING MORISON, PETITIONER V. UNITED STATES OF AMERICA

No. 88-169

In The Supreme Court Of The United States

October Term, 1988

On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit

(SNIP)

STATUTES INVOLVED

Section 641 (18 U.S.C.) provides:

Whoever embezzles, steals, purloins, or knowingly converts to his
use or the use of another, or without authority, sells, conveys or
disposes of any record, voucher, money, or thing of value of the
United States or of any department or agency thereof, or any property
made or being made under contract for the United States or any
department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to
convert it to his use or gain, knowing it to have been embezzled,
stolen, purloined or converted --

Shall be fined not more than $10,000 or imprisoned not more than
ten years, or both; but if the value of such property does not exceed
the sum of $100, he shall be fined not more than $1,000 or imprisoned
not more than one year, or both.

The word "value" means face, par, or market value, or cost price,
either wholesale or retail, whichever is greater.

Section 793 (18 U.S.C.) provides in pertinent part:

* * * * *

(d) Whoever, lawfully having possession of, access to, control
over, or being entrusted with any * * * photograph * * * relating to
the national defense * * *, willfully communicates, delivers,
transmits or causes to be communicated, delivered or transmitted * * *
the same to any person not entitled to receive it * * *; or

(e) Whoever having unauthorized possession of, access to, or
control over any document, writing, * * * or note relating to the
national defense, or information relating to the national defense
which information the possessor has reason to believe could be used to
the injury of the United States or to the advantage of any foreign
nation, * * * willfully retains the same and fails to deliver it to
the officer or employee of the United States entitled to receive it;

* * * * *

Shall be fined not more than $10,000 or imprisoned not more than
ten years, or both.

* * * * *


(SNIP)

To prosecute Assange under the Espionage Act, they would have to prove that he published the cables with the knowledge that it would do actual harm to the U.S. to the benefit of a foreign power, which is essentially the same thing as intent to commit espionage.

I haven't seen proof of that.

The conversion of government property statute, Sec. 641, (theft of classified materials) has never been successfully applied to the recipient of leaked classified information. The only case of a successful prosecution for leaking is Morison, who was a Navy Dept. employee at the time he came into possession of the photos. There's also the element of personal gain that would have to be proven against Assange. Furthermore, under the Pentagon Papers precedent, there is a strong First Amendment presumption and defense.

It's clear that Manning can be prosecuted under both statutes. The question is, will DOJ now try to make the stretch and indict Assange? I hope not. Anyway, unless and until someone comes up with proof that Assange was acting on behalf of a foreign power with intent to harm the U.S., I don't think DOJ has much of a case against him under the Espionage Act. Prosecution under Sec. 641 for publishing leaked documents would be unprecedented, and they would have to show it was for some gain or benefit to the leaker for a felony count to apply. Otherwise, it's a misdemeanor, and hardly worth prosecuting.

I think it's more likely that Assange will be prosecuted in the UK under that country's Official Secrets Act.