The Sunday edition of the UK’s “The Independent” reports on the possibility the US might consider passing a new law to prosecute Julian Assange and shut down his successful efforts to publish leaked secret documents.
With the primary goal being to silence Assange, Congress’s first look must be at existing law. The 1917 Espionage Act is the obvious starting place, although history shows this wasn’t strong enough to overcome First Amendment rights claimed by The New York Times when it came under fire for publishing the Pentagon Papers in the 1970s. Can a US law be applied to this Australian journalist?
If this won’t stand up, there might be some technicalities in other provisions such as illegal exposure of US national security individuals to potential public harm — espionage and spy-related charges.
But the last thing anyone should be considering is violating a basic constitutional right contained in Article 1 Section 9 Clause 3: “No Bill of Attainder or ex post facto Law shall be passed.” This means passing a law AFTER an act has been performed to find the party guilty or MORE guilty, and worthy of prison or death.
As it turns out, a Republican congressman, Peter King from New York, among others, is introducing the Securing Human Intelligence and Enforcing Lawful Dissemination (Shield) Bill that makes what Assange is now doing illegal. How the US Constitution can be applied to a non-US citizen in jail in a foreign country is a whole other discussion, but assuming the legal leverage to haul him to the states for prosecution is secured, for what can he be charged?
Says author W. Cleon Skousen in “Making of America”: “This [ex post facto principle] gave every American the RIGHT not to have the Congress pass a law penalizing a person for an act after the act has occurred.”
Skousen cites five situations the ex post facto principle prohibits:
1. Charging someone for an offense that was not illegal at the time it occurred.
2. Charging someone with a crime under a law which has made the offense more serious than when it was committed.
3. Subjecting someone to a greater punishment than was prescribed by the law at the time the offense was perpetrated.
4. Allowing evidence to be introduced under new rules which were not in effect at the time the offense occurred.
5. Passing a law which deprives the accused of some protection to which he was entitled at the time the act occurred.
Skousen gives examples of when ex post facto limitations were overruled:
For a variety of reasons the Supreme Court has held that some laws are not ex post facto even though they may appear to be so. For example, a deportation law authorizing the Secretary of Labor to expel aliens for criminal acts committed before the law was passed is not considered ex post facto because it did not impose a punishment but simply deprived the alien of his illegally acquired privileges. A further extension of this reasoning occurred in the federal court for the Territory of Utah when persons with polygamous families were deprived of the right to vote even though they had not violated the law after the statute against polygamy had been passed. The court excluded the argument that this was ex post facto on the ground that it was not an additional penalty but “merely defined the past practice of polygamy as a disqualification of a voter.” This tenuous reasoning by the court is attributed to the public opinion pressures of the time rather than sound legal reasoning.
If US law will be applied to stop the damage from Assange’s actions, let it be legal, justifiable, challenge-proof, and above all, constitutional.
Paul B. Skousen is a former analyst for the CIA, an intelligence officer in the Reagan White House and staffer for Senator Orrin Hatch. He is a journalist and published author, and the son of W. Cleon Skousen, author of The Five Thousand Year Leap. He is a national Constitution Coach and senior editor with PowerThink Publishing, LLC. Email: paulskousen@comcast.net.
