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US Department of Justice Argues Assange Has No First Amendment Rights

153 points by silasdb 7y ago

i_dont_know_ 7y ago
I've heard people say the US constitution lays out limits of what the US government can do, as opposed to rights of US citizens. So, if the US government wants to hold you in detention, they have to tell you why, not because you have that 'right', but because they are bound by law to do so in all circumstances irrespective of what passport you're carrying. Again, I've only heard this before -- I'm not at all a legal scholar. Can anyone confirm or deny this interpretation and possibly give more reading material around it?
- bumby 7y ago
  The first ten amendments are literally called the "Bill of Rights". It limits what the government can do because doing so would be in opposition to the rights of US citizens. "Rights of citizens" and "limits of government" are two sides to the same coin. Edit: should have used “person” rather than “citizen”. I was mirroring the verbiage used by the OP and should have been clearer. E.g. non-citizens are still granted Miranda rights
  - sokoloff 7y ago
    I think GP is asking whether these are limits in government as compared to all people or limits against only US citizens.
    - i_dont_know_ 7y ago
      Exactly
    - zigzaggy 7y ago
      This question has been debated and discussed often, especially since the “wars” on drugs and terror (with similar results). The truth is that the constitution protects all people in MOST cases, but not all. (0) It’s a complex answer and, as someone else mentioned, things change by case law (court decisions) all the time. Note that if someone is being charged as some type of combatant or intelligence operative, they will have very few “rights” and apparently can be held for a very long time (see Gitmo). 0. https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?a...
      - i_dont_know_ 7y ago
        Thank you! Just what I was looking for :) Though I get sadder the deeper I read
  - Symmetry 7y ago
    "Citizen" is never mentioned in the Bill of Rights. It's all "The Government shall make no law" or "the people" or "the accused" which apply equally to any other person within the United States. Even undocumented immigrants are protected by the Bill of Rights and legal non-citizen residents certainly are.
    - ReptileMan 7y ago
      The question is whether the Bill of Rights ends at US border from what I understand.
      - flyingfences 7y ago
        Well, one might expect the exercised powers of the US government to end at the US border...
        ceejayoz 7y ago
        I think /u/ReptileMan is talking more about situations like border crossings, where the Border Patrol claims some rights don't apply because you haven't been granted entry yet, even though you're technically on US soil. There are also questions about scenarios like https://en.wikipedia.org/wiki/Anwar_al-Awlaki https://en.wikipedia.org/wiki/Anwar_al-Awlaki, where a US citizen was executed by the US without trial while overseas.
      - bumby 7y ago
        I think it’s a bit more complicated than that. I think the issue is whether those rights apply to non-citizens outside the border. I think it’s generally well established that rights travel abroad with citizens. However, it’s less clear if they apply abroad (or even to U.S. territories) to non-citizens. E.g. United States v. Verdugo-Urquidez claims it does not apply to non-citizens who do not have a voluntary association with the U.S. Edit: I'll try to be more clear. The rights of U.S. citizens extend beyond the border when dealing with the U.S. government. I was not implying other governments must recognize U.S. Constitutional rights when dealing with U.S. citizens.
  - i_dont_know_ 7y ago
    But it's not framed as "rights of citizens" in the actual wording of the Constitution (it was intended to be, yes, but that's another topic). For instance, the first amendment doesn't say "All citizens have the right to...", but rather says "Congress shall make no law..." Subtle difference, but important. Similarly, other parts of the bill of rights refers to "people", not just citizens. Generally, for issues that happen entirely within the United States, it's interpreted to really mean "people". So if you're in the US on a work visa and get arrested, you are allowed to plead the 5th and it's supposed to be honored. It gets weirder when events aren't entirely contained in the US. If I write an article critical of the US government while outside the US, do I have constitutional protection against US retribution? If so, does that come from my passport, or from the fact that the US government just isn't allowed to do that to anyone, period? That's more what I'm asking.
    - bumby 7y ago
      >If I write an article critical of the US government while outside the US, do I have constitutional protection against US retribution? If you are a citizen, yes. If you are not, there’s at least some precedent that the answer is no. I’m curious to your perspective on the subtle difference in wording. What does this difference impart legally? To me it feels like a distinction without a difference Edit: after having my morning coffee, I realized an important distinction is when the U.S. citizen is considered a combatant. See Anwar al-Awlaki, where the government stated, "We do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action", although it looks like the specific details about their opinions on his 4th amendment rights were not clear due to redaction. [1] [1] https://www.washingtonpost.com/world/national-security/legal-memo-backing-drone-strike-is-released/2014/06/23/1f48dd16-faec-11e3-8176-f2c941cf35f1_story.html https://www.washingtonpost.com/world/national-security/legal...
      - i_dont_know_ 7y ago
        Someone has linked to a really nice legal review somewhere up in the comments, so my question is mostly answered now... but to answer your question about what I see as a difference in wording above: If the law said "All citizens have the right to express their opinion" then a law saying "Non-citizens expressing their opinions will be punished" is OK. If, on the other hand, the law said "Congress will not make any laws restricting the expressing of opinions" (closer in wording to what we have) then a law saying "Non-citizens expressing their opinions will be punished" is no longer OK.
  - DiogenesKynikos 7y ago
    In general, the individual liberties set out in the Bill of Rights apply broadly to all people, in all their interactions with the US government. The Bill of Rights does not use the word "citizen," but does in several places use the broader term "person." For example, > No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; It also uses the phrase, "the people." For example, in the 4th Amendment, > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. In the case of the 1st Amendment, which concerns freedom of speech/religion/the press, it appears to be a general prohibition on government interference with freedom of speech, with no specification of whose freedom of speech is meant: > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
  - the6threplicant 7y ago
    They are inalienable rights first. It has nothing to do with citizenship. If I'm on US soil then I have (roughly) the same right as a US citizen. That's what so great about the Bill of Rights. (note there some specific clause for US citizens but they are labelled as such eg US president etc)
  - jack_h 7y ago
    It should also be noted that historically these were restrictions on the federal government only (see Barron v Baltimore). This is a pretty important distinction since states were not limited here. In practice most states have their own constitution which generally follows the federal constitution to some extent. Of course after the 14th Amendment was passed the legal theory of selective incorporation under the Due Process clause was developed in the early 20th century. Interestingly we are still in the process of incorporating the first eight amendments to the states 150 years later; e.g. the second amendment is the most recently incorporated amendment, the third still hasn't been incorporated though.
- afthonos 7y ago
  (Sorry, no links, but this is fairly uncontroversial US history:) There was a big debate around the bill of rights. Proponents felt it was essential, because otherwise the government would violate those rights. Opponents either didn’t feel this was a justified fear, actively wanted more state power, or claimed that enshrining certain rights explicitly implies that they were the only ones reserved to the people. That last objection was the basis for the Tenth Amendment. That said, in practice, what the government can and can’t do is decided not by the text of the Constitution but by the string of precedents that control its legal interpretation. In other words, reading the Constitution gives you at best a very basic intuition of how the US political system works, and this intuition will often be very very wrong. So, you’re theoretically right, but it doesn’t affect the practical reality on the ground even in principle.
  - raxxorrax 7y ago
    While true, if the constitution is not fulfilled in the eyes of the citizens, it can just flush all those legal governmental proceedings down the toilet, including the whole body of government. Some even argue it to be their duty. That is the basis of every democracy. Consent of the governed and all that.
    - ptero 7y ago
      <tin foil on> Supposedly democratic governments learned a few tricks on how they could manipulate the opinions of the governed to avoid being thrown out. Some fear works. Wars, too (that is, when at war people will cut their government extra slack), so they claim wars on {drugs,terrorism,...}. They also leverage mass media. This is not a relationship of control, just symbiosis: fear is still pretty easy to sell. <tin foil off>
  - Psyladine 7y ago
    >or claimed that enshrining certain rights explicitly implies that they were the only ones reserved to the people. Which is the situation we're in. If you don't have a positively asserted specific legal right, it doesn't otherwise exist, except in how limited your behaviors are by law. "The sky is the limit" vs "the limit is the sky"
abtinf 7y ago
This is not a credible source. Has there been any reporting from a major paper?
- romaaeterna 7y ago
  You can watch the recorded video where the quote was taken from and be your own reliable source: https://www.youtube.com/watch?v=YwK1tPdaHkY https://www.youtube.com/watch?v=YwK1tPdaHkY
  - sokoloff 7y ago
    That’s not an original source to prove the claim in the headline. It’s someone making a claim that the DoJ is making that claim. (A video of “B says that A said” is not the same as an original video or text from A, particularly when A and B are adversaries.)
    - romaaeterna 7y ago
      He is an original source, as a person who saw the filings. Perhaps not unbiased though. And contra your statement, there is no reason to suspect that the DoJ's self-description of their filings would be in any way more accurate. (Do you trust the student's description of his essay, or the teacher's evaluation of it?)
      - sokoloff 7y ago
        The DoJ filing is an original source for the argument. The video above is much closer to hearsay than to an original source. I would no more (and no less) accept hearsay as original testimony from counsel on either side of the case.
        romaaeterna 7y ago
        There is some difference between "testimony" and "reporting". One is law, one journalism. There are, quite rightly, different standards.
NeedMoreTea 7y ago
UK govt should be refusing all US extradition requests, and suspending all trials until it is accepted Sacoolas be extradited to the UK.
- orf 7y ago
  I came to comment exactly the same thing. Someone who murdered a UK citizen then fled justice has been refused extradition by the USA, but the UK is supposed to extradite Assange? Come on.
  - ur-whale 7y ago
    You're assuming the UK government has an actual choice in the matter. I don't think they do.
    - bilekas 7y ago
      Why wouldn't they exactly ?
      - belval 7y ago
        The parent is probably referring to Brexit, soon the UK will need to make a new trade deal with the US. Until that's done I doubt that we will see them say "no" to the US very often.
      - threeseed 7y ago
        UK desperately needs a trade deal with the US. In order for them to have regulatory divergence from the EU there will have to leave on WTO terms. Without US opening up as a market UK will struggle to avoid a long term economic recession. And as we know Trump doesn't look at trade in isolation. He looks at the overall relationship like a child would i.e. "are they doing what I want or not". So there is zero chance UK will do anything this year that isn't to Trump's liking.
        bilekas 7y ago
Causality1 7y ago
It's bizarre to me that the US constitution's philosophical basis is that it does not create rights but only recognizes natural or God-given rights that people already have, yet the US government doesn't recognize those rights for anyone but its own citizens.
- bumby 7y ago
  My (limited) understanding is that the Constitution does extend to non-citizens in many circumstances. Those are the ones that state rights of a "person" rather than "citizen". E.g., "nor shall any State deprive any person of life, liberty, or property, without due process of law"
- ianhawes 7y ago
  It is largely an untested theory. The USG asserts that his 1A protections do not apply because he is not a USC and speech was outside the US. That begs the question of whether the court then has jurisdiction. It is a good rule of thumb that if you are being tried in the US, the constitution applies to you.
fit2rule 7y ago
I truly hope there will be more leaks in the future. So far, we're seeing the tip of the ice-berg - but I predict that if Assange dies without justice, there are going to be repercussions. There are a lot of angry people out there, sitting on a goldmine of information, just waiting to see how this proceeds. I can't imagine a scenario where Wikileaks is pounded into the ground, and the rest of the world goes quiet - sure, mainstream mind control being what it is, we may forget Assange soon enough. But the truth wants to be free, and when crimes against humanity are committed at such scale as the Coalition is capable, there has to be more on the horizon. One wonders what the AirWars folks are thinking about all of this. I sure hope groups like these, as well as Wikileaks, is going to survive this onslaught of injustice. The truth will come out. There'll be more leaks.
BLKNSLVR 7y ago
I'm wondering at what point the Australian Government might actually stand up in the defense of one of it's citizens against potential (and maybe even actual) human rights violations. Australian politicians very much like to talk about 'protecting Australians' when it comes to ISP data retention and laws against encryption, but they tend to go entirely missing in the kind of situations where they are actually needed on behalf of a citizen that, in this case, needs potentially life-saving protection.
- fit2rule 7y ago
  Not going to happen. They will bow to the needs of the USA, as Brazil has now done in its prosecution of Greenwald. Wikileaks is sitting on a ton of info about the ADF's war crimes as well, and the Australian government want nothing more than to prevent the intense scrutiny of its proud fighting force by the worlds' people that would result from such a leak. They are fighting tooth and nail to ensure that Wikileaks is invalidated completely in the minds of the Australian public, who generally have very little temerity when it comes to criticism of their armed forces actions. EDIT: Besides which, there is Australia's heinous Sedition law, which is being floated as the means by which Assange would be silenced were he to land back in Australias territory.
  - threeseed 7y ago
    Australian Federal Police is already investigating war crimes committed by the Defence Force: https://www.abc.net.au/news/2019-09-20/afp-travels-to-afghanistan-to-investigate-alleged-war-crimes/11527426 https://www.abc.net.au/news/2019-09-20/afp-travels-to-afghan... The media has had plenty of information about alleged war crimes so I doubt Wikileaks is going to offer anything new.
    - fit2rule 7y ago
      .. and as we can see from this token investigation, the media in Australia is also under attack for its own investigations of ADF war crimes, a situation for which Australia has been lambasted by international journalistic organisations - who are strangely silent on Assange's treatment. So .. There is more to come.
docdeek 7y ago
> "According to WikiLeaks, witness statements submitted to the court by US prosecutors on Saturday argue that Assange does not enjoy First Amendment protections because he is not a US citizen and because the amendment allegedly does not protect speech made outside the United States.” Isn’t this another way of saying US legal protections don’t apply to people who aren’t American, and aren’t physically present in America (or under its jurisdiction)? I feel like this would be the case for other countries, too: free speech laws that protect Americans in America wouldn’t protect them in China or Australia or Kenya, and Kenyans, Australians and Chinese citizens outside of the US aren’t protected by US law, either.
- yorwba 7y ago
  If US law doesn't grant protection to Assange because he's neither a US citizen nor physically present in America, then it also shouldn't be possible to prosecute him for things he did while neither a US citizen nor physically present in America.
  - chadcmulligan 7y ago
    This is something I've always found confusing about the entire situation - Assange is an Australian citizen who did something in Iceland, yet the USA is applying its laws to him. Granted he obtained US intelligence from a US citizen, but how is this his problem? I find it hard to understand how this is possible.
  - chinesempire 7y ago
    Not to defend US justice system, but Assange allegedly jeopardized US national security, which is in the interest of US to protect. If Assange was in a country that had no treaties with US, say for example Iran, he could avoid extradition easily, not so easily if there are strong agreements on both parties like UK and US have. There are reasons why he wasn't in Iran or Afghanistan, one of them is that his life would be in more danger there than in any western court. If Assange was extradited from Sweden, the country he escaped from, which is still an European country, he had the certainty that he could not be sentenced to the death penalty, that's a non-negotiable option if US ask for extradition from EU. UK will not be EU anymore starting from 1st of February 2020.
Tycho 7y ago
Wait, hold on a minute here, I was assured that the one thing Assange should have done years ago was turn himself over to the authorities and let justice take his course. Can someone explain to me how things could have diverged so badly from the expected path?
- fit2rule 7y ago
  You were lied to - Assange is in the target of a large, highly profitable military-industrial-complex. Actual justice is not on the table; anyone paying attention has known this for years.
  - bilekas 7y ago
    > Assange is in the target of a large, highly profitable military-industrial-complex Woah there, went full tinfoil hat on us for a moment. Agree, their intentions are probably to set an example and will act aggressively on Assange as much as possible, but they are still bound by their laws.. And in turn; 'justice'.
  - threeseed 7y ago
    Everything is being done in pretty strict accordance with the law. US believes he committed a serious crime and as such it's expected they would seek extradition just like with every other person who does so.
    - raxxorrax 7y ago
      > Everything is being done in pretty strict accordance with the law. Everything besides the war crimes he uncovered? Yeah, sure. He dropped the pants of high government officials and this is simply a case of revenge. Let's call it what it is.
    - lovich 7y ago
      Aren't we reading about the US government denying that he has 1st amendment rights when the US government is restricted from denying those rights by the 1st amendment? The amendment doesn't specify US citizens get a positive right, it limits the government itself
ReptileMan 7y ago
So the same justification for gitmo. Nothing new.
deleted 7y ago
[deleted]
torstenvl 7y ago
As someone whose legal arguments have been drastically misunderstood by papers of much higher reputation (looking at you, WaPo), I'm skeptical of the accuracy of the claim.
kerkeslager 7y ago
Well, that certainly undermines the credibility of the Dept. of Justice's previous claims that Assange would receive a fair trial. If Assange doesn't have first amendment rights, what other inalienable, constitutional human rights doesn't he have?
sjg007 7y ago
If the US wants to apply US law globally then US constitutional rights should apply to you if the US wants to prosecute you. I imagine if this goes forward it will end up at the US Supreme Court. Also if Assange is on US soil at the time of prosecution then the 1st amendment should apply and it should be retroactive.
- cambalache 7y ago
  Unless the US fancies itself as the new Roman empire.
- david_draco 7y ago
  The US should respect article 19 of the Universal Declaration of Human Rights, or retreat from its signature to it. Related, the US should respect the UN's ban on wars on aggression (Article 2, 39 of the charter), or otherwise retreat from its membership.
lettergram 7y ago
I mean... he’s also not a U.S. citizen, and wasn’t / isn’t under the jurisdiction of the U.S... so sure if they argue he has no first amendment rights, then how do they argue they have jurisdiction?
- creaghpatr 7y ago
  Because it concerns US property (classified intelligence)
- agotterer 7y ago
  Isn’t this a slippery slope? Could the argument be made that anyone who isn’t a U.S. citizen isn’t protected by the constitution then? Not a citizen, you can’t say what you want when you want. Not a citizen you don’t get the right to due process. Etc.
  - non-entity 7y ago
    The US just assassinated a high ranking military official of a nation we arent at war with openly without even attempting it covertly. It would seem that they are already well invested in carrying out justice against foreign nationals as they see fit
pyb 7y ago
"Between December 19 and January 13, lawyers had just two hours to brief Assange and take instruction. They were granted one more hour to confer on January 13, when Assange last appeared in court." IANAL, but that doesn't sound normal to me, particularly for such a case.
SllX 7y ago
Horseshit. The Bill of Rights is descriptive of some of the natural rights of men, not prescriptive. The reason it exists at all was to satisfy people who quite rightly thought that without the extra legal insulation a malicious Congress or government would trample all over them. Go read the 1st Amendment, it’s right here: > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The first five words are “Congress shall make no law”, or basically, this isn’t a grant given to the people, this is a restriction on the type of laws Congress is allowed to pass, and if Congress can’t pass a law, then a President can’t enforce it because it doesn’t constitutionally exist!
- JumpCrisscross 7y ago
  > if Congress can’t pass a law, then a President can’t enforce it because it doesn’t constitutionally exist Yet federal health workers can be legally bound to secrecy. The Bill of Rights is in natural conflict with itself. My rights restrict your freedoms and vice versa. This is a complicated dance that has been extensively litigated.
  - SllX 7y ago
    Federal health workers are civil servants. The restrictions on their rights are of an employer-employee variety, or of a contractural variety. Nobody put a gun to their head and told them to enter the civil service, and they can choose to leave it. Again, go read the Bill of Rights. They are restrictions on the national government’s ability to legislate or take certain actions against you, not a grant of rights doled out to satisfy you. “You have the freedom to speak and of the press, etc.” is far less powerful and meaningful than “Congress shall make no law...”
    - JumpCrisscross 7y ago
      > The restrictions on their rights are of an employer-employee variety An arrangement defined and described by laws Congress wrote. Laws which restrict the free speech of Americans. I agree that the negative rights of the American Constitution are far superior to the positive-rights philosophy of e.g. the UN Declaration on Human Rights, which is unenforceable ambiguous. But these rights are balanced against each other in a complex way.
deogeo 7y ago
> witness statements submitted to the court by US prosecutors on Saturday argue that Assange does not enjoy First Amendment protections because he is not a US citizen and because the amendment allegedly does not protect speech made outside the United States. Wouldn't this logic extend to all the other amendments as well? Meaning Assange has no rights, at which points, why even bother with a trial? Just execute him as soon as he touches US soil. Of course, this logic could be applied to all foreign nationals then. My only question is, if US rights don't apply to foreign nationals, how come legal restrictions do apply? Can the executive branch just arbitrarily decide which laws apply to a foreign national?
AndrewKemendo 7y ago
Having dealt with this issue while overseas and having done some previous searching, the question of whether the Constitution applies to Non-Citizens residing outside of the US is unclear in law. Note, the distinction here: Someone who is residing outside of the US. "Assange does not enjoy First Amendment protections because he is not a US citizen and because the amendment allegedly does not protect speech made outside the United States" Julian Assange is an Australian Citizen who was residing in the United Kingdom and was not being held by agents of the US Government. It's unclear under what precedent he would enjoy protections under the US Constitution.
- shadowgovt 7y ago
  There's a strong Constitutional construction argument that argues the Constitution applies to all people regardless of citizenship if the government intends to put legal binding upon them and we are not in a state of war. But I believe the US executive branch has not ascribed to that legal philosophy since at least George W. Bush's presidency.
  - Isamu 7y ago
    Agreed, many of the rights described were once considered the "natural" rights of man, not granted, and I thought the language clearly demonstrated that main concern was with restricting the power of government from denying those rights. Not everybody believes in rights that are not granted, so I think the view that these rights only applied to citizens was always around, but yes, 9/11 did provide added motivation to deny rights to non-citizens.
  - AndrewKemendo 7y ago
    I think that's a good argument, but I'm not a lawyer, I just know that the Rules Of Engagement for military members extended the spirit of the constitution, to how we were supposed to interact with the local population in Iraq. In Assange's case though I don't see how the First Amendment will help here, as the charge is "Conspiracy to commit Computer Intrusion." I don't think the district court is making a case about whether Assange has the right to publish data freely.
stjohnswarts 7y ago
No judge will support that, not even cronies put in by Trump. The only way they would get anything even close is to have him declared an enemy combatant and that's not going to happen.

153 points by silasdb 7y ago

I've heard people say the US constitution lays out limits of what the US government can do, as opposed to rights of US citizens. So, if the US government wants to hold you in detention, they have to tell you why, not because you have that 'right', but because they are bound by law to do so in all circumstances irrespective of what passport you're carrying. Again, I've only heard this before -- I'm not at all a legal scholar. Can anyone confirm or deny this interpretation and possibly give more reading material around it?

bumby 7y ago
The first ten amendments are literally called the "Bill of Rights". It limits what the government can do because doing so would be in opposition to the rights of US citizens. "Rights of citizens" and "limits of government" are two sides to the same coin. Edit: should have used “person” rather than “citizen”. I was mirroring the verbiage used by the OP and should have been clearer. E.g. non-citizens are still granted Miranda rights
- sokoloff 7y ago
  I think GP is asking whether these are limits in government as compared to all people or limits against only US citizens.
  - i_dont_know_ 7y ago
    Exactly
  - zigzaggy 7y ago
    This question has been debated and discussed often, especially since the “wars” on drugs and terror (with similar results). The truth is that the constitution protects all people in MOST cases, but not all. (0) It’s a complex answer and, as someone else mentioned, things change by case law (court decisions) all the time. Note that if someone is being charged as some type of combatant or intelligence operative, they will have very few “rights” and apparently can be held for a very long time (see Gitmo). 0. https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?a...
    - i_dont_know_ 7y ago
      Thank you! Just what I was looking for :) Though I get sadder the deeper I read
- Symmetry 7y ago
  "Citizen" is never mentioned in the Bill of Rights. It's all "The Government shall make no law" or "the people" or "the accused" which apply equally to any other person within the United States. Even undocumented immigrants are protected by the Bill of Rights and legal non-citizen residents certainly are.
  - ReptileMan 7y ago
    The question is whether the Bill of Rights ends at US border from what I understand.
    - flyingfences 7y ago
      Well, one might expect the exercised powers of the US government to end at the US border...
      - ceejayoz 7y ago
        I think /u/ReptileMan is talking more about situations like border crossings, where the Border Patrol claims some rights don't apply because you haven't been granted entry yet, even though you're technically on US soil. There are also questions about scenarios like https://en.wikipedia.org/wiki/Anwar_al-Awlaki https://en.wikipedia.org/wiki/Anwar_al-Awlaki, where a US citizen was executed by the US without trial while overseas.
    - bumby 7y ago
      I think it’s a bit more complicated than that. I think the issue is whether those rights apply to non-citizens outside the border. I think it’s generally well established that rights travel abroad with citizens. However, it’s less clear if they apply abroad (or even to U.S. territories) to non-citizens. E.g. United States v. Verdugo-Urquidez claims it does not apply to non-citizens who do not have a voluntary association with the U.S. Edit: I'll try to be more clear. The rights of U.S. citizens extend beyond the border when dealing with the U.S. government. I was not implying other governments must recognize U.S. Constitutional rights when dealing with U.S. citizens.
- i_dont_know_ 7y ago
  But it's not framed as "rights of citizens" in the actual wording of the Constitution (it was intended to be, yes, but that's another topic). For instance, the first amendment doesn't say "All citizens have the right to...", but rather says "Congress shall make no law..." Subtle difference, but important. Similarly, other parts of the bill of rights refers to "people", not just citizens. Generally, for issues that happen entirely within the United States, it's interpreted to really mean "people". So if you're in the US on a work visa and get arrested, you are allowed to plead the 5th and it's supposed to be honored. It gets weirder when events aren't entirely contained in the US. If I write an article critical of the US government while outside the US, do I have constitutional protection against US retribution? If so, does that come from my passport, or from the fact that the US government just isn't allowed to do that to anyone, period? That's more what I'm asking.
  - bumby 7y ago
    >If I write an article critical of the US government while outside the US, do I have constitutional protection against US retribution? If you are a citizen, yes. If you are not, there’s at least some precedent that the answer is no. I’m curious to your perspective on the subtle difference in wording. What does this difference impart legally? To me it feels like a distinction without a difference Edit: after having my morning coffee, I realized an important distinction is when the U.S. citizen is considered a combatant. See Anwar al-Awlaki, where the government stated, "We do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action", although it looks like the specific details about their opinions on his 4th amendment rights were not clear due to redaction. [1] [1] https://www.washingtonpost.com/world/national-security/legal-memo-backing-drone-strike-is-released/2014/06/23/1f48dd16-faec-11e3-8176-f2c941cf35f1_story.html https://www.washingtonpost.com/world/national-security/legal...
    - i_dont_know_ 7y ago
      Someone has linked to a really nice legal review somewhere up in the comments, so my question is mostly answered now... but to answer your question about what I see as a difference in wording above: If the law said "All citizens have the right to express their opinion" then a law saying "Non-citizens expressing their opinions will be punished" is OK. If, on the other hand, the law said "Congress will not make any laws restricting the expressing of opinions" (closer in wording to what we have) then a law saying "Non-citizens expressing their opinions will be punished" is no longer OK.
- DiogenesKynikos 7y ago
  In general, the individual liberties set out in the Bill of Rights apply broadly to all people, in all their interactions with the US government. The Bill of Rights does not use the word "citizen," but does in several places use the broader term "person." For example, > No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; It also uses the phrase, "the people." For example, in the 4th Amendment, > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. In the case of the 1st Amendment, which concerns freedom of speech/religion/the press, it appears to be a general prohibition on government interference with freedom of speech, with no specification of whose freedom of speech is meant: > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
- the6threplicant 7y ago
  They are inalienable rights first. It has nothing to do with citizenship. If I'm on US soil then I have (roughly) the same right as a US citizen. That's what so great about the Bill of Rights. (note there some specific clause for US citizens but they are labelled as such eg US president etc)
- jack_h 7y ago
  It should also be noted that historically these were restrictions on the federal government only (see Barron v Baltimore). This is a pretty important distinction since states were not limited here. In practice most states have their own constitution which generally follows the federal constitution to some extent. Of course after the 14th Amendment was passed the legal theory of selective incorporation under the Due Process clause was developed in the early 20th century. Interestingly we are still in the process of incorporating the first eight amendments to the states 150 years later; e.g. the second amendment is the most recently incorporated amendment, the third still hasn't been incorporated though.
afthonos 7y ago
(Sorry, no links, but this is fairly uncontroversial US history:) There was a big debate around the bill of rights. Proponents felt it was essential, because otherwise the government would violate those rights. Opponents either didn’t feel this was a justified fear, actively wanted more state power, or claimed that enshrining certain rights explicitly implies that they were the only ones reserved to the people. That last objection was the basis for the Tenth Amendment. That said, in practice, what the government can and can’t do is decided not by the text of the Constitution but by the string of precedents that control its legal interpretation. In other words, reading the Constitution gives you at best a very basic intuition of how the US political system works, and this intuition will often be very very wrong. So, you’re theoretically right, but it doesn’t affect the practical reality on the ground even in principle.
- raxxorrax 7y ago
  While true, if the constitution is not fulfilled in the eyes of the citizens, it can just flush all those legal governmental proceedings down the toilet, including the whole body of government. Some even argue it to be their duty. That is the basis of every democracy. Consent of the governed and all that.
  - ptero 7y ago
    <tin foil on> Supposedly democratic governments learned a few tricks on how they could manipulate the opinions of the governed to avoid being thrown out. Some fear works. Wars, too (that is, when at war people will cut their government extra slack), so they claim wars on {drugs,terrorism,...}. They also leverage mass media. This is not a relationship of control, just symbiosis: fear is still pretty easy to sell. <tin foil off>
- Psyladine 7y ago
  >or claimed that enshrining certain rights explicitly implies that they were the only ones reserved to the people. Which is the situation we're in. If you don't have a positively asserted specific legal right, it doesn't otherwise exist, except in how limited your behaviors are by law. "The sky is the limit" vs "the limit is the sky"

abtinf 7y ago

This is not a credible source. Has there been any reporting from a major paper?

romaaeterna 7y ago
You can watch the recorded video where the quote was taken from and be your own reliable source: https://www.youtube.com/watch?v=YwK1tPdaHkY https://www.youtube.com/watch?v=YwK1tPdaHkY
- sokoloff 7y ago
  That’s not an original source to prove the claim in the headline. It’s someone making a claim that the DoJ is making that claim. (A video of “B says that A said” is not the same as an original video or text from A, particularly when A and B are adversaries.)
  - romaaeterna 7y ago
    He is an original source, as a person who saw the filings. Perhaps not unbiased though. And contra your statement, there is no reason to suspect that the DoJ's self-description of their filings would be in any way more accurate. (Do you trust the student's description of his essay, or the teacher's evaluation of it?)
    - sokoloff 7y ago
      The DoJ filing is an original source for the argument. The video above is much closer to hearsay than to an original source. I would no more (and no less) accept hearsay as original testimony from counsel on either side of the case.
      - romaaeterna 7y ago
        There is some difference between "testimony" and "reporting". One is law, one journalism. There are, quite rightly, different standards.

NeedMoreTea 7y ago

UK govt should be refusing all US extradition requests, and suspending all trials until it is accepted Sacoolas be extradited to the UK.

orf 7y ago
I came to comment exactly the same thing. Someone who murdered a UK citizen then fled justice has been refused extradition by the USA, but the UK is supposed to extradite Assange? Come on.
- ur-whale 7y ago
  You're assuming the UK government has an actual choice in the matter. I don't think they do.
  - bilekas 7y ago
    Why wouldn't they exactly ?
    - belval 7y ago
      The parent is probably referring to Brexit, soon the UK will need to make a new trade deal with the US. Until that's done I doubt that we will see them say "no" to the US very often.
    - threeseed 7y ago
      UK desperately needs a trade deal with the US. In order for them to have regulatory divergence from the EU there will have to leave on WTO terms. Without US opening up as a market UK will struggle to avoid a long term economic recession. And as we know Trump doesn't look at trade in isolation. He looks at the overall relationship like a child would i.e. "are they doing what I want or not". So there is zero chance UK will do anything this year that isn't to Trump's liking.
      - bilekas 7y ago

Causality1 7y ago

It's bizarre to me that the US constitution's philosophical basis is that it does not create rights but only recognizes natural or God-given rights that people already have, yet the US government doesn't recognize those rights for anyone but its own citizens.

bumby 7y ago
My (limited) understanding is that the Constitution does extend to non-citizens in many circumstances. Those are the ones that state rights of a "person" rather than "citizen". E.g., "nor shall any State deprive any person of life, liberty, or property, without due process of law"
ianhawes 7y ago
It is largely an untested theory. The USG asserts that his 1A protections do not apply because he is not a USC and speech was outside the US. That begs the question of whether the court then has jurisdiction. It is a good rule of thumb that if you are being tried in the US, the constitution applies to you.

fit2rule 7y ago

I truly hope there will be more leaks in the future. So far, we're seeing the tip of the ice-berg - but I predict that if Assange dies without justice, there are going to be repercussions. There are a lot of angry people out there, sitting on a goldmine of information, just waiting to see how this proceeds. I can't imagine a scenario where Wikileaks is pounded into the ground, and the rest of the world goes quiet - sure, mainstream mind control being what it is, we may forget Assange soon enough. But the truth wants to be free, and when crimes against humanity are committed at such scale as the Coalition is capable, there has to be more on the horizon. One wonders what the AirWars folks are thinking about all of this. I sure hope groups like these, as well as Wikileaks, is going to survive this onslaught of injustice. The truth will come out. There'll be more leaks.

BLKNSLVR 7y ago

I'm wondering at what point the Australian Government might actually stand up in the defense of one of it's citizens against potential (and maybe even actual) human rights violations. Australian politicians very much like to talk about 'protecting Australians' when it comes to ISP data retention and laws against encryption, but they tend to go entirely missing in the kind of situations where they are actually needed on behalf of a citizen that, in this case, needs potentially life-saving protection.

fit2rule 7y ago
Not going to happen. They will bow to the needs of the USA, as Brazil has now done in its prosecution of Greenwald. Wikileaks is sitting on a ton of info about the ADF's war crimes as well, and the Australian government want nothing more than to prevent the intense scrutiny of its proud fighting force by the worlds' people that would result from such a leak. They are fighting tooth and nail to ensure that Wikileaks is invalidated completely in the minds of the Australian public, who generally have very little temerity when it comes to criticism of their armed forces actions. EDIT: Besides which, there is Australia's heinous Sedition law, which is being floated as the means by which Assange would be silenced were he to land back in Australias territory.
- threeseed 7y ago
  Australian Federal Police is already investigating war crimes committed by the Defence Force: https://www.abc.net.au/news/2019-09-20/afp-travels-to-afghanistan-to-investigate-alleged-war-crimes/11527426 https://www.abc.net.au/news/2019-09-20/afp-travels-to-afghan... The media has had plenty of information about alleged war crimes so I doubt Wikileaks is going to offer anything new.
  - fit2rule 7y ago
    .. and as we can see from this token investigation, the media in Australia is also under attack for its own investigations of ADF war crimes, a situation for which Australia has been lambasted by international journalistic organisations - who are strangely silent on Assange's treatment. So .. There is more to come.

docdeek 7y ago

> "According to WikiLeaks, witness statements submitted to the court by US prosecutors on Saturday argue that Assange does not enjoy First Amendment protections because he is not a US citizen and because the amendment allegedly does not protect speech made outside the United States.” Isn’t this another way of saying US legal protections don’t apply to people who aren’t American, and aren’t physically present in America (or under its jurisdiction)? I feel like this would be the case for other countries, too: free speech laws that protect Americans in America wouldn’t protect them in China or Australia or Kenya, and Kenyans, Australians and Chinese citizens outside of the US aren’t protected by US law, either.

yorwba 7y ago
If US law doesn't grant protection to Assange because he's neither a US citizen nor physically present in America, then it also shouldn't be possible to prosecute him for things he did while neither a US citizen nor physically present in America.
- chadcmulligan 7y ago
  This is something I've always found confusing about the entire situation - Assange is an Australian citizen who did something in Iceland, yet the USA is applying its laws to him. Granted he obtained US intelligence from a US citizen, but how is this his problem? I find it hard to understand how this is possible.
- chinesempire 7y ago
  Not to defend US justice system, but Assange allegedly jeopardized US national security, which is in the interest of US to protect. If Assange was in a country that had no treaties with US, say for example Iran, he could avoid extradition easily, not so easily if there are strong agreements on both parties like UK and US have. There are reasons why he wasn't in Iran or Afghanistan, one of them is that his life would be in more danger there than in any western court. If Assange was extradited from Sweden, the country he escaped from, which is still an European country, he had the certainty that he could not be sentenced to the death penalty, that's a non-negotiable option if US ask for extradition from EU. UK will not be EU anymore starting from 1st of February 2020.

Tycho 7y ago

Wait, hold on a minute here, I was assured that the one thing Assange should have done years ago was turn himself over to the authorities and let justice take his course. Can someone explain to me how things could have diverged so badly from the expected path?

fit2rule 7y ago
You were lied to - Assange is in the target of a large, highly profitable military-industrial-complex. Actual justice is not on the table; anyone paying attention has known this for years.
- bilekas 7y ago
  > Assange is in the target of a large, highly profitable military-industrial-complex Woah there, went full tinfoil hat on us for a moment. Agree, their intentions are probably to set an example and will act aggressively on Assange as much as possible, but they are still bound by their laws.. And in turn; 'justice'.
- threeseed 7y ago
  Everything is being done in pretty strict accordance with the law. US believes he committed a serious crime and as such it's expected they would seek extradition just like with every other person who does so.
  - raxxorrax 7y ago
    > Everything is being done in pretty strict accordance with the law. Everything besides the war crimes he uncovered? Yeah, sure. He dropped the pants of high government officials and this is simply a case of revenge. Let's call it what it is.
  - lovich 7y ago
    Aren't we reading about the US government denying that he has 1st amendment rights when the US government is restricted from denying those rights by the 1st amendment? The amendment doesn't specify US citizens get a positive right, it limits the government itself

ReptileMan 7y ago

So the same justification for gitmo. Nothing new.

deleted 7y ago

[deleted]

torstenvl 7y ago

As someone whose legal arguments have been drastically misunderstood by papers of much higher reputation (looking at you, WaPo), I'm skeptical of the accuracy of the claim.

kerkeslager 7y ago

Well, that certainly undermines the credibility of the Dept. of Justice's previous claims that Assange would receive a fair trial. If Assange doesn't have first amendment rights, what other inalienable, constitutional human rights doesn't he have?

sjg007 7y ago

If the US wants to apply US law globally then US constitutional rights should apply to you if the US wants to prosecute you. I imagine if this goes forward it will end up at the US Supreme Court. Also if Assange is on US soil at the time of prosecution then the 1st amendment should apply and it should be retroactive.

cambalache 7y ago
Unless the US fancies itself as the new Roman empire.
david_draco 7y ago
The US should respect article 19 of the Universal Declaration of Human Rights, or retreat from its signature to it. Related, the US should respect the UN's ban on wars on aggression (Article 2, 39 of the charter), or otherwise retreat from its membership.

lettergram 7y ago

I mean... he’s also not a U.S. citizen, and wasn’t / isn’t under the jurisdiction of the U.S... so sure if they argue he has no first amendment rights, then how do they argue they have jurisdiction?

creaghpatr 7y ago
Because it concerns US property (classified intelligence)
agotterer 7y ago
Isn’t this a slippery slope? Could the argument be made that anyone who isn’t a U.S. citizen isn’t protected by the constitution then? Not a citizen, you can’t say what you want when you want. Not a citizen you don’t get the right to due process. Etc.
- non-entity 7y ago
  The US just assassinated a high ranking military official of a nation we arent at war with openly without even attempting it covertly. It would seem that they are already well invested in carrying out justice against foreign nationals as they see fit

pyb 7y ago

"Between December 19 and January 13, lawyers had just two hours to brief Assange and take instruction. They were granted one more hour to confer on January 13, when Assange last appeared in court." IANAL, but that doesn't sound normal to me, particularly for such a case.

SllX 7y ago

Horseshit. The Bill of Rights is descriptive of some of the natural rights of men, not prescriptive. The reason it exists at all was to satisfy people who quite rightly thought that without the extra legal insulation a malicious Congress or government would trample all over them. Go read the 1st Amendment, it’s right here: > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The first five words are “Congress shall make no law”, or basically, this isn’t a grant given to the people, this is a restriction on the type of laws Congress is allowed to pass, and if Congress can’t pass a law, then a President can’t enforce it because it doesn’t constitutionally exist!

JumpCrisscross 7y ago
> if Congress can’t pass a law, then a President can’t enforce it because it doesn’t constitutionally exist Yet federal health workers can be legally bound to secrecy. The Bill of Rights is in natural conflict with itself. My rights restrict your freedoms and vice versa. This is a complicated dance that has been extensively litigated.
- SllX 7y ago
  Federal health workers are civil servants. The restrictions on their rights are of an employer-employee variety, or of a contractural variety. Nobody put a gun to their head and told them to enter the civil service, and they can choose to leave it. Again, go read the Bill of Rights. They are restrictions on the national government’s ability to legislate or take certain actions against you, not a grant of rights doled out to satisfy you. “You have the freedom to speak and of the press, etc.” is far less powerful and meaningful than “Congress shall make no law...”
  - JumpCrisscross 7y ago
    > The restrictions on their rights are of an employer-employee variety An arrangement defined and described by laws Congress wrote. Laws which restrict the free speech of Americans. I agree that the negative rights of the American Constitution are far superior to the positive-rights philosophy of e.g. the UN Declaration on Human Rights, which is unenforceable ambiguous. But these rights are balanced against each other in a complex way.

deogeo 7y ago

> witness statements submitted to the court by US prosecutors on Saturday argue that Assange does not enjoy First Amendment protections because he is not a US citizen and because the amendment allegedly does not protect speech made outside the United States. Wouldn't this logic extend to all the other amendments as well? Meaning Assange has no rights, at which points, why even bother with a trial? Just execute him as soon as he touches US soil. Of course, this logic could be applied to all foreign nationals then. My only question is, if US rights don't apply to foreign nationals, how come legal restrictions do apply? Can the executive branch just arbitrarily decide which laws apply to a foreign national?

AndrewKemendo 7y ago

Having dealt with this issue while overseas and having done some previous searching, the question of whether the Constitution applies to Non-Citizens residing outside of the US is unclear in law. Note, the distinction here: Someone who is residing outside of the US. "Assange does not enjoy First Amendment protections because he is not a US citizen and because the amendment allegedly does not protect speech made outside the United States" Julian Assange is an Australian Citizen who was residing in the United Kingdom and was not being held by agents of the US Government. It's unclear under what precedent he would enjoy protections under the US Constitution.

shadowgovt 7y ago
There's a strong Constitutional construction argument that argues the Constitution applies to all people regardless of citizenship if the government intends to put legal binding upon them and we are not in a state of war. But I believe the US executive branch has not ascribed to that legal philosophy since at least George W. Bush's presidency.
- Isamu 7y ago
  Agreed, many of the rights described were once considered the "natural" rights of man, not granted, and I thought the language clearly demonstrated that main concern was with restricting the power of government from denying those rights. Not everybody believes in rights that are not granted, so I think the view that these rights only applied to citizens was always around, but yes, 9/11 did provide added motivation to deny rights to non-citizens.
- AndrewKemendo 7y ago
  I think that's a good argument, but I'm not a lawyer, I just know that the Rules Of Engagement for military members extended the spirit of the constitution, to how we were supposed to interact with the local population in Iraq. In Assange's case though I don't see how the First Amendment will help here, as the charge is "Conspiracy to commit Computer Intrusion." I don't think the district court is making a case about whether Assange has the right to publish data freely.

stjohnswarts 7y ago

No judge will support that, not even cronies put in by Trump. The only way they would get anything even close is to have him declared an enemy combatant and that's not going to happen.