Kevin Drum

Is Julian Assange Guilty of Espionage?

| Wed Dec. 1, 2010 3:22 PM EST

Can the United States charge Julian Assange with violation of the 1917 Espionage Act? The whole idea seems crazy to me. U.S. law applies to crimes committed on U.S. soil or, at most, to crimes committed by U.S. citizens abroad. There's no way we can pretend that our laws cover actions taken by a foreign national working in another country.

Which just goes to show how much I know. A recent CRS report summarized the extraterritorial application of U.S. law and concluded that there's plenty of it:

Application is generally a question of legislative intent, expressed or implied. In either case, it most often involves crimes committed aboard a ship or airplane, crimes condemned by international treaty, crimes committed against government employees or property, or crimes that have an impact in this country even if planned or committed in part elsewhere.

Hmmm. Mostly ships and planes or crimes against humanity. But what about other kinds of laws? Here's some more from the report:

To what extent does international law permit a nation to exercise extraterritorial criminal jurisdiction? The question is essentially one of national interests....The most common classification of these interests dates to a 1935 Harvard Law School study which divided them into five categories or principles corresponding to the circumstances under which the nations of the world had declared their criminal laws applicable: (1) the territorial principle which involves crimes occurring or having an impact within the territory of a country....(4) the protection principle which involves the crimes which have an impact on its interests as a nation.

....If the territorial principle is more expansive than its caption might imply, the protective principle is less so. It is confined to crimes committed outside a nation’s territory against its “security, territorial integrity or political independence.” As construed by the courts, however, it is understood to permit the application abroad of statutes which protect the federal government and its functions. And so, it covers [...] conduct which Congress has characterized as a threat to U.S. national security.

.... General rules of statutory construction....The first of these holds that a statute will be construed to have only territorial application unless there is a clear indication of some broader intent. A second rule of construction states that the nature and purpose of a statute may provide an indication of whether Congress intended a statute to apply beyond the confines of the United States. Although hints of it can be found earlier, the rule was first clearly announced in United States v. Bowman.

....The natural implications of Bowman and Ford are that a substantial number of other federal crimes operate overseas by virtue of the implicit intent of Congress. In fact, the lower federal courts have read Bowman and Ford to suggest that American extraterritorial criminal jurisdiction includes [...] (4) counterfeiting, forging or otherwise misusing federal documents or checks overseas by either Americans or aliens.

If this is correct — and if I'm interpreting it correctly — it means that the Espionage Act might apply to Assange after all if (a) the text of the statute suggests an intent for it to apply overseas, or (b) the Department of Justice decides that Assange's actions are a threat to national security or can be construed as "misuse" of federal documents. Beyond that, of course, there's also the question of whether his actions violate the provisions of the law in the first place, and whether he has a First Amendment defense even if they do.

This seems like tenuous stuff (though Julian Ku says here that "The Espionage Act has long been held to apply to foreign nationals who commits acts while abroad") and in practice it's meaningless unless some foreign country is willing to arrest Assange and extradite him to the U.S. based on this legal reasoning. Which makes it even more tenuous. But not quite as outlandish as I thought, apparently. Further analysis is welcome from anyone with experience in this area.

(Via Opinio Juris.)

UPDATE: Mark Hosenball talks to some experts here and concludes that prosecutors "could face insurmountable legal hurdles" if they tried to bring a case against Assange.

UPDATE 2: Trevor Timm lays out the case here for believing that even if the Espionage Act can be applied to foreign nationals residing on foreign soil, WikiLeaks hasn't violated the act in the first place. So it's a moot point.

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Net Neutrality Deal Getting Closer

| Wed Dec. 1, 2010 1:59 PM EST

Apparently a deal on net neutrality is close to completion:

Although the exact details of the plan have yet to be unveiled, analysts agreed that the FCC had made two big concessions to the US cable industry in its plan....Cable groups staunchly opposed a plan unveiled by Mr Genachowski earlier this year that could have led to price controls by the FCC — and that proposal now appears to be dead.

....The FCC has also, in effect, given a thumbs up to tiering practices that are already in place that allow companies to charge consumers based on internet usage. “The exception to that is if, for example, a cable company charges Netflix more to carry traffic because it is video content. That would not be permissable. But they could certainly charge by volume or by the speed that they are carrying traffic,” said Rebecca Arbogast, an analyst at Stifel Nicolaus.

I don't have a firm position on the issue of regulating cable companies as telecommunications services, which would have given the FTC authority over pricing, but I think it's probably secondary to getting some strong net neutrality rules put in place. What's more, if real net neutrality is in the works — and we won't know for sure until we see the details — I also don't have any problem with allowing internet providers to institute usage-based charges. That's a market decision, and as long as the charges are strictly bit-based and not content or provider based, that's fine. I have no problem with the idea that if you want more of something, you have to pay for it.

In any case, this tentatively seems like good news. Stay tuned for the details.

Privacy on the Web

| Wed Dec. 1, 2010 1:46 PM EST

Good news! The FTC is backing a plan called "do not track" that would "make consumer privacy the default position and would let Web users decide whether Internet sites and advertisers can build profiles of their browsing and buying habits as well as collect other personal information." Sounds great. But, um, there's a catch:

“I do not think that under the F.T.C.’s existing authority we could mandate unilaterally a system of ‘do not track,’ ” David Vladek, the director of the commission’s bureau of consumer protection, said Wednesday at a conference sponsored by Consumer Watchdog, a nonprofit group.

“There are ways we could coax, cajole and charm industry in that direction,” Mr. Vladek said. But, he added, “If the decision was made by Congress that ‘do not track’ should be put in place immediately, it would take an act of Congress.”

So this requires Congress to do something? Then I guess that's that. No privacy for you.

Quote of the Day: No Meddling, Please

| Wed Dec. 1, 2010 12:51 PM EST

From Stephanie Mencimer, on the bipartisan passage of the food safety bill yesterday despite tea party opposition:

Food safety may simply be an issue that doesn’t get tea party activists frothing the way, say, health care reform or auditing the Fed do. But what’s more likely is that the tea party is no more effective in fighting corporate interests than MoveOn.

Republican politicians care about the rich, not the tea partiers. As long as tea party interests align with the rich — or, at a minimum, don't interfere with them — everything is fine. But meddling with the primal forces of nature is always a no-no.

Time for Some Logrolling

| Wed Dec. 1, 2010 11:40 AM EST

The Republican caucus in the Senate has written unanimously to Harry Reid to tell him that they will block action on everything — everything, dammit! — until the Bush tax cuts are extended.  "While there are other items that might ultimately be worthy of the Senate's attention," the letter says, "we cannot agree to prioritize any matters above the critical issues of funding the government and preventing a job-killing tax hike."

I confess that I'm unclear on why this situation isn't ripe for a bit of old-fashioned logrolling. Republicans want extension of tax breaks for both the middle class and millionaires. Democrats don't, but they do want passage of DADT repeal and New START.1 So strike an agreement with the GOP leadership to extend the tax cuts for three years in return for support on the other two things. The alternative is gridlock since Dems have never had the votes to extend just the middle-class tax cuts anyway.

What am I missing here? Why would this be such an unthinkable compromise?

1Or maybe some other stuff. Pick your poison. And obviously some smaller items like 1099 repeal and unemployment extensions might end up in the package too. It all depends on how things go. But conceptually, there doesn't seem to be any big impediment to a deal of some kind.

Willful Self Destruction

| Wed Dec. 1, 2010 2:18 AM EST

Tom Friedman imagines what a leaked cable from the Chinese embassy in Washington DC might look like:

There is a willful self-destructiveness in the air here as if America has all the time and money in the world for petty politics. They fight over things like — we are not making this up — how and where an airport security officer can touch them. They are fighting — we are happy to report — over the latest nuclear arms reduction treaty with Russia....And since anything that brings Russia and America closer could end up isolating us, we are grateful to Senator Jon Kyl of Arizona for putting our interests ahead of America’s and blocking Senate ratification of the treaty.

Etc. etc.

I have to admit this evokes a lot of my current mood too. Back at the beginning of the month we spent a week going into a frenzy over recommendations from a deficit reduction commission that everyone knew were DOA. Then it was a week of TSA frenzy. And now it's WikiLeaks frenzy. All while our economy slips into a Japan-style stagnation and nobody seems to care. It staggers the imagination. The strongest country in the world — my country — is allowing its economy to decay before our collective eyes even though we know how to stop it. But we're not going to. We're just going to let it happen. As Friedman says, it's willful self destruction.

We need: a big stimulus now aimed at infrastructure development. A credible plan to close the long-term deficit that acknowledges the need for tax increases to be part of the solution. A serious and sustained effort at reining in healthcare costs and broadening access. A collective decision to cut out the culture war nonsense and figure out how to improve our educational system with no more than modest spending increases. Real financial reform, not the weak tea of Dodd-Frank. Less spending on empire building and much, much more spending on real sustainable energy development and engineering.

But we're not going to do this stuff. As near as I can tell, we're not even going to do one single thing on this list. We're not even going to try. In fact, they're all so far from being realistically achievable that it's sort of foolish to even waste breath writing about them. So instead we spend our time reacting to Sarah Palin's latest tweet and demanding that the CIA assassinate Julian Assange. Gotta talk about something, after all, whether the ship is going down or not. Glug, glug.

POSTSCRIPT: Maybe I'll be in a sunnier mood tomorrow morning. Maybe.

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GOP Cynicism Gone Wild

| Tue Nov. 30, 2010 7:48 PM EST

This is ridiculous. Both Democrats and Republicans agree that the new 1099 reporting requirements included in the healthcare reform bill should be repealed. The pain-in-the-ass factor is simply too high to justify forcing everyone to create the mountains of new paperwork it would require. The problem is that the new requirements essentially raise taxes on contractors and small businesses and this raises revenue. So if you want to repeal the requirements, you need to figure out how to make up the revenue, and Democrats and Republicans have been unable to agree on how to do this.

Yesterday, however, Sen. Max Baucus decided the hell with it. The amount of revenue is tiny (less than $2 billion per year), so why not just repeal the 1099 provision, lower everyone's taxes, and forget about paying for it? This is an eminently sensible position, since Republicans want the provision repealed and have repeatedly and unanimously taken the position that tax cuts don't need to be paid for.

So Baucus introduced an amendment to do the deed. And it failed because all but two Republicans voted against it.

Can anyone defend this in any kind of principled way? Republicans are eager to extend the Bush tax cuts on the rich without paying for them, and this will cost over $70 billion per year. Ditto for the estate tax. But the $2 billion 1099 tax? That's a no go. Gotta be paid for. If I didn't know better, I'd say that Republicans don't really want to repeal the 1099 provision at all. They want to keep it around so they have an issue to hammer Democrats with, even if it means voting not to relieve small businesses of a widely cursed new paperwork burden. 

Even for a confirmed cynic, though, this is cynical beyond measure. Anybody got a more Republican-friendly explanation?

WikiLeaks and the Rest of the World

| Tue Nov. 30, 2010 7:01 PM EST

The reliably bellicose Victor Davis Hanson has a bone to pick with the founder of WikiLeaks:

Julian Assange prides himself on being a bomb-thrower, eager to take down Western governments and banks, the U.S. military, etc. Yet, in cowardly fashion, he stays clear of getting involved with dissident leakers from those governments and groups — e.g., China, Iran, North Korea, Hezbollah, Russia, Syria — that (1) do far more damage to the global body politic than the United States, and (2) might well do bodily harm to Mr. Assange should he do to them what he does to Western interests.

I have no doubt that Assange is eager to cause the United States grief, but is there any actual evidence that he's avoided getting involved with China, Russia, Syria, etc.? After all, WikiLeaks has in the past posted leaked documents related to Somalia, Kenya, Scientology, the UN, and Iran. WikiLeaks also hosted some of the Climategate emails, and Assange has warned of coming disclosures about Russia. If WikiLeaks has never posted anything from Hezbollah or North Korea, my guess is that it's because they haven't received any leaks from disaffected North Koreans or Hezbollah militants.

Anyway, this is rapidly becoming a common talking point. Does anyone know if there's any actual truth to it?

Pentagon: DADT Repeal Not a Problem

| Tue Nov. 30, 2010 3:47 PM EST

The military has finally released its long-awaited study on the repeal of Don't Ask Don't Tell, and the results are unsurprising: most service members don't think repeal would be a problem:

The Pentagon has concluded that allowing gay men and women to serve openly in the United States armed forces presents a low risk to the military’s effectiveness, even at a time of war, and that 70 percent of service members believe that the impact of repealing the “don’t ask, don’t tell” law would be either positive, mixed or of no consequence at all.

The full report is here, and an interesting table is below. It turns out that although 30% of respondents think that repealing DADT would affect their unit's ability to train well together (a number that shows up pretty consistently on every question about the effect of repeal), only 10% think it would affect their own readiness and only 20% think it would affect their ability to train well. In other words, there's pretty good reason to think that even the 30% number is overstated. It seems to include a fair number of people who are assuming that DADT repeal would have a negative effect on other people even though it wouldn't have a negative effect on them. My guess is that a lot of this is reaction to a small number of vocal traditionalists, which makes opposition to repeal seem like a bigger deal than it is.

Jeh Johnson, the Pentagon’s chief counsel, agrees, saying that surveys about personnel changes "tend to overestimate negative consequences, and underestimate the U.S. military’s ability to adapt and incorporate within its ranks the diversity that is reflective of American society at large." I suspect he's right. In the end, real opposition is probably more in the range of 10-20% than 30%, and even that will probably produce nothing more serious than occasional grumbling and discomfort for a year or two at most. There's really no further excuse for inaction. It's time for Barack Obama and the Democratic leadership to figure out a way to cut a deal and get repeal passed before Congress recesses.

Does PPACA Contain a Surprise?

| Tue Nov. 30, 2010 2:13 PM EST

One of the reasons that employer-based healthcare is so prevalent in the United States is that it's a good deal: unlike the normal income they recieve, employees don't have to pay taxes on their healthcare benefits. A $5,000 policy costs $5,000. Conversely, if your employer simply paid you a cash wage in lieu of healthcare benefits, you'd have to receive, say, $6,000 in order to buy the same policy. Why? Because you have to pay taxes on the $6,000 and still have $5,000 left over to pay the premium.

This difference in tax treatment is something that wonks on both left and right generally oppose, though in somewhat different ways and as part of somewhat different overall structures. Still, pretty much everyone opposes it. And guess what? Thanks to the healthcare reform bill, it might be going away. The details are complex, but Austin Frakt provides the gist:

PPACA may make it possible for workers to get the same tax break for purchasing health insurance on the individual market (via an exchange or otherwise) as they would if they bought their employer-sponsored plan (if they’re offered one). If this is the case, it removes one huge incentive for maintaining employer-sponsored coverage. With respect to taxation, it levels the playing field between the group and non-group (individual) markets.

There’s still the issue that until 2017 only employees of firms with fewer than 100 workers are eligible for exchange coverage. Beginning in 2017, states can open exchanges to employees of larger firms. Workers of firms of any size could buy coverage on the individual market that is outside the exchange, they just can’t obtain federal subsidies for them. Still, it’s the tax subsidy that makes employer-based coverage so valuable to workers. If it can be applied in the non-group market it would hasten the erosion of employer-based coverage (which is not a bad thing, necessarily).

This all depends on a particular interpretation of provisions in PPACA, but if regulators write the enabling rules properly it might well allow individuals to buy insurance on the exchanges with pretax dollars. This would reduce the cost of insurance substantially for anyone using the exchange. It's worth keeping an eye on.