“No Bill of Attainder, no ex post facto Law…”

The US attorney general, Eric Holder,  has announced that the Justice Department and Pentagon are conducting “an active, ongoing criminal investigation” into the latest Assange-facilitated leak under Washington’s Espionage Act.

Asked how the US could prosecute Assange, a non-US citizen, Holder said, “Let me be clear. This is not saber-rattling,” and vowed “to swiftly close the gaps in current US legislation…”

In other words the espionage statute is being rewritten to target Assange, and in short order, if not already, President Obama – who as a candidate pledged “transparency” in government – will sign an order okaying the seizing of Assange and his transport into the US jurisdiction. Render first, fight the habeas corpus lawsuits later.

via CounterPunch.

Before there was a Bill of Rights guaranteeing freedom of speech, freedom of the press, freedom of worship and the right to keep and bear arms, the United States Constitution protected even more basic freedoms.  The Constitution banned ex post facto laws and bills of attainder, guaranteed the right of habeas corpus and defined the crime of treason in narrow and specific terms.

These were the basic principles of a nation founded on the principle of the rule of law – a principle that in the English-speaking world went back to the Great Charter of 1215 and the English Bill of Rights of 1688.  The principle of the rule of law is that no matter how much you anger your rulers, they can’t do anything to you unless you break an actual law with a specific punishment.

The rule of law means that a government can’t punish you for breaking a law that was passed after the fact (ex post facto law).  It can’t pass a law aimed at you personally (bill of attainder).  If you are arrested, you have a right to be brought before a judge and told what specific law you are accused of breaking (habeas corpus).  And you can’t be charged with treason just because you’ve done something that the government didn’t like.

All this has been turned on its head in the case of Julian Assange and Wikileaks.  Eric Holder says that he’s made up his mind to charge Julian Assange with something – although as of now he hasn’t been able to specify a law he has broken.  And if there is no law on the books, he will propose something “to close the gaps in U.S. legislation.”

Senate Minority Leader Mitch McConnell said Assange should be prosecuted to the fullest extent of the law and, “if that becomes a problem, we need to change the law.” [Added 12/11/10]

Holder and others have invoked the Espionage Act of 1917, which was passed at a time when the nation had gone even crazier than it has now.  The Islamophobia of today is nothing compared to the Germanophobia of that era.  The law has never been used against journalists, and for good reason.  If the government can define anything whosoever as a secret, and can punish anyone who reveals its secrets, there are no limits on its power.  How can we the people hold our government accountable if it can keep us from knowing what it does?

[Added 12/11/10] Glenn Greenwald has it right.

Just look at what the U.S. Government and its friends are willing to do and capable of doing to someone who challenges or defies them — all without any charges being filed or a shred of legal authority.  They’ve blocked access to their assets, tried to remove them from the Internet, bullied most everyone out of doing any business with them, froze the funds marked for Assange’s legal defense at exactly the time that they prepare a strange international arrest warrant to be executed, repeatedly threatened him with murder, had their Australian vassals openly threaten to revoke his passport, and declared them “Terrorists” even though — unlike the authorities who are doing all of these things — neither Assange nor WikiLeaks ever engaged in violence, advocated violence, or caused the slaughter of civilians.

Via Glenn Greenwald

Click on National Review for “Reporting Is Not a Crime” by Jonathan H. Adler & Michael Berry

Click on Center for Constitutional Rights for statement about “legal overreach” in Julian Assange’s arrest on sex charges. [Added 12/10/10]

Click on Electronic Frontier Foundation for legal analysis. [Added 12/10/10]

Note: Some material originally on this post was pasted into the post entitled Question for Readers.

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2 Responses to ““No Bill of Attainder, no ex post facto Law…””

  1. Christine jones Says:

    i agree with fact that we american citizens need to ascert our rights and at the same time, know what our rights are. No one mentions californias’ 3-strikes law is “a bill of attainder under “pains and penaties” . Why is three strikes law of california not included in your illegal legislature listings?


    • philebersole Says:

      The California three strikes law mandates a sentence of 25 years to life imprisonment without parole for anyone who commits a serious crime, such as burglary or assault, and then commits two other felonies, serious or not.

      I think three strikes laws are bad because any law with no provision for mercy in exceptional cases is a bad law. But I don’t think they are bills of attainder, because they are not aimed at any specific individual, nor ex post facto laws, because they don’t punish anybody for having done something that was legal when they did it.

      The California law was appealed to the U.S. Supreme Court not as a bill of attainder or ex post facto law, but as a form of cruel and unusual punishment under the Eighth Amendment. The Court held, 5-4, that three-strikes laws are constitutional.

      Such laws may be cruel, but they are not unusual. Versions have been enacted by 24 states.

      I don’t, by the way, claim that Julian Assange is the only person who is or ever was singled out for persecution by the government. Other cases don’t prove anything about his case. Two (or more) wrongs don’t make a right.


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