A blog of politics, law, religion, and the tricky spots where they collide.

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Lawyers in the Bradley Manning case have produced logs of online chats that claim to show Mr Assange coaching the young private on how to break passwords to gain access to military computer networks anonymously.

New spying claim against Assange

This is something of a game changer regarding the legality of Assange’s actions. Publishing information—regardless of how it was obtained, is generally protected by the first amendment. Soliciting that information is more dubious—but probably still okay.

But you don’t have a Constitutional right to help somebody hack into military computer networks.

Presumption of Innocence

Bstriddy replied to my previous post, pointing out that

[Assange has not] been convicted of rape or sexual molestation. Or is the presumption of innocence just for ideologues?

If anybody can find anywhere that I claimed that Assange was convicted of rape or sexual molestation, I’ll send $20 to WikiLeaks’s legal defense fund.1 If you can find a spot where I referred to Assange as a rapist or sex offender without explicitly qualifying it as “accused” or “alleged,” I’ll publicly and profusely apologize to you, Bstriddy, RyKing, Wikileaks, Julian Assange, and maybe Australia while I’m at it. I’m generally very careful about that sort of thing, even when the accused isn’t as hip and liberal as Assange.

With that said, I think there’s a common misconception about what the presumption of innocence means. It does not mean that we need to wait for a court to rule on something before we form opinions about it. It doesn’t even mean we have to agree with the court’s ultimate ruling. Nor does it mean that somebody can’t be locked up pending a trial. It simply means that defendants (in the U.S. or anywhere else that follows the rule) aren’t required to prove their innocence. The burden of proof is on the state. If you answer, “Where were you on January 26” with, “I forget,” “I can’t remember—I was drunk,” or even, “Screw you, judge, I’m not telling,” you won’t be convicted unless the prosecutor can present actual evidence that you committed the crime.

Let’s take three examples. Jared Lee Loughner is accused of shooting Gabrielle Giffords in the head. He He hasn’t been convicted. The “presumption of innocence” applies. This does not mean that we all need to pretend that Jared Lee Loughner did not commit any crime. The evidence against him is pretty well insurmountable. There’s no real probability that he’ll be exonerated.

Then there’s Bill Ayer’s. He’s in fact been found not guilty of some of the weatherman’s bombings. He’s been very open that he actually did commit those crimes—but due to the prohibition on double jeopardy (and the statute of limitations), he can’t be convicted. But we’re not required to pretend he didn’t do what he did.

Is Dick Cheney a war criminal? He hasn’t been convicted of war crimes. He hasn’t even been charged. That doesnt’ stop us from talking about whether Cheney did or did not commit war crimes.

Then there’s Julian Assange. There’s a lot of publicly available information. We’ve seen statements from Assange and his attorneys about Assange’s version of events. We’ve seen media accounts of the indictment. We’ve seen what Assange has denied, confirmed, and stayed silent about. We’ve heard accounts from the victims. And we’ve seen Assange’s decision to smear the accusers and fight extradition. All of it adds up to a credible case for rape and sexual molestation against Assange. He’ll have his day in court and get an opportunity to prove that he’s not guilty of the actual crime.

Until that time, I’ll stick by my contention that 1) the accusations are credible enough to merit consideration, and 2) Assange is a world-class creep with crippling gender-relations problems. To the extent that WikiLeaks does important work, Assange is a distraction.

  1. I’m sure this fund exists somewhere. 

London Court Grants Swedish Request to Extradite Assange

There’s a bit of good, if somewhat expected news. I know a lot of you support Assange’s work—but there are some very serious charges against him. Extradition and likely prosecution will allow the charges and the evidence to be brought publicly. Assange may be convicted—or he may be exonerated. Either way, there is a rigorous and reliable process through which to determine the truth.

Ex-Swiss Banker Gives Data to WikiLeaks

Ready for another wrinkle in the WikiLeaks drama?

This round of data could include some serious whistle-blowing that the U.S. government would readily approve of. Well, probably. It depends who was evading their taxes with a Swiss bank account. If it’s dirt on somebody high enough up, there could be some self-interested backlash. (I don’t anticipate that happening. I don’t think deliberate and concerted tax evasion is endemic among the leading U.S. politicians. People screw up taxes or fail to report things they should have reported—but a concerted effort to hide assets would be big news. Hopefully we’ll see.)

Team Sweden


“Assange had a lot of help making Sweden look like the last place on Earth that you would want to take your penis. The aforementioned megahit movie, The Girl with the Dragon Tattoo, makes the place look like a snow-filled ass cave that Jeffrey Dahmer lived in before he got a raise. (It’s a good movie otherwise.) If you haven’t read any background about the so-called rape charges against Assange, you really should. Apparently Swedish laws are unique. If you have a penis, you’re half a rapist before you even get through customs. And if your condom breaks, that’s jail time. What I’m saying is that the Club Med in Sweden is a nervous place.”

Scott Adams (via azspot)

Alright, now it’s even getting to me. This is a lousy joke and it doesn’t capture the shameful lack of nuance in our legal system (née culture) regarding rape. Sweden has attempted to clarify the nature of rape to it’s citizens with specific, scalable laws. That is infinitely better than the limited, contradictory, and difficult-to-understand American case law.

Men are not given a reasonable understanding of rape - even socializing conceptions of “asking for it” and date rape / deception as normal. Even laudable. And it scarcely bears mentioning how disadvantaged women are by our legal process, which basically demands them to be Joan of Arc to win a conviction of the most obvious offenders. The meek are left to suffer and go to therapy, or kill themselves.

Sweden, unlike Scott Adams, takes rape seriously. Team Sweden.

C2N pretty well captures my feelings on the matter. I would only add that the “It was just a broken condom” slur is sort of like Death Panels For Liberals. A Swedish police report detailing the charges was leaked. If you read the New York Times article on it, you’ll see there’s a heck of a lot more alleged than just a broken condom. Also:

This report should not have been leaked. It compromises the integrity of an investigation. That said:

  1. It’s sort of ironic how Assange’s attorneys are lived over an unauthorized leak.
  2. It doesn’t take a lot of legal knowledge to figure out that “broken condom” doesn’t equate to rape unless we consider Sweden a strange place with unfathomable laws. Of course, we do consider a Sweden a strange place with unfathomable laws. Because we’re American and America is Uniquely Awesome or Uniquely Terrible but either way Uniquely Exceptional.
  3. At this point, if you’re repeating the “it was just a broken condom” canard, you’re spreading misinformation in a pretty atrocious way.
  4. Guys, I’m trying to be on vacation here. This is not a convenient time for a fight on the internet.

(via correlationstonone-deactivated2)

Transparency, Privacy, and Power

  • The WikiLeaks release has increased government transparency by exposing, among other things, unguarded comments people expected to remain relatively private.

  • The airport scanner invade traveler’s privacy by increasing the transparency of their clothes.

  • Julian Assange, who values his own privacy to a nearly paranoid degree, got a dose of transparency when intimate details of his sex life were published to the world.1

We all had strong feelings one way or another on all of these. We want everything to be transparent. Or private. Definitely one or the other. We just disagree on what belongs where. How do we decide what should be transparent and what can remain private?

It’s not simply a matter of wanting privacy for ourselves and transparency for everybody else. Just as we’re outraged when other people’s privacy is violated, we’re diligent to be transparent in many of our own matters. We demand transparency of those we consider our political allies at the same time as we fight to protect journalistic privilege for journalists.

My initial thought is that we demand transparency from those with enough power to abuse. We’d like transparency from our government. We want transparency from corporations. But … there are exceptions. We want to know if we’re bombing people—but most of us are understanding about the need to keep real-time troop movements underwraps. We like to know how large a nuclear arsenal we have and how much we spend to maintain it. But we don’t need to know the exact location of all warheads at all times. As much as we’d like to listen in on certain peace negotiations, we’re usually content to get the gist of it from the newspaper. We can acknowledge that people need space to freely and candidly express their views. We have a very utilitarian relationship the privacy of the most powerful.

Part of the issue is that everybody needs a little space. It’s good to know that everybody poops—but we don’t need the when, where, and how of it. Some things aren’t our business—and we’d like to keep them that way. In the same sense, we expect people to make occasional regrettable remarks—and there’s no need to broadcast those stupid remarks to the entire world. It’s nice to have enough privacy to sometimes say, “I’m sorry,” to let the world forget, and to move on with our lives. As digital records become more comprehensive and more thoroughly linked that’s getting harder and harder. Sometimes we go through phases better forgotten.

There’s something to be said for translucency.

  1. Assange hasn’t been convicted of anything. He may or may not be exonerated on the rape charges. But he’s pretty clearly guilty of charges of aggravated douchery. For better or worse, that part will follow him. 

So what laws did WikiLeaks break again?

When I asked yesterday what the U.S. government had done to persecute WikiLeaks, the answer’s included:

  1. Called WikiLeaks mean names.
  2. Accused WikiLeaks of unspecified criminal activity.

I’m not that concerned about #1. Individual legislators say crazy things. That doesn’t make them actual policy. And, while Sarah Palin is certainly a prominent political figure, she doesn’t actually hold any office. At this point, she’s mostly an influential blogger and media pundit. She doesn’t speak for the United States.

But #2 is concerning. Casual accusations of criminal activity from, for example, Robert Gibbs, are concerning. But it’s more than some off-the-cuff, unguarded remarks from the Whitehouse Press Secretary. According to a Paypal executive, the United States State Department sent a letter to Paypal requesting that the company block payments to WikiLeaks because it is involved in illegal activities. (Edit: It turns out that the State Department did not send a letter to PayPal. Thanks for the correction, Kiteza.) To my knowledge, no charges have been brought against WikiLeaks. It’s unclear whether any case is actually viable. What did WikiLeaks do that’s illegal? What’s the evidence? Has anybody shown that WikiLeaks was more than a passive recipient and distributor of classified documents?

(The New York Times tries to build a case for prosecution here. The article contains some comically disasterous mangling of IP Law and confusions of civil and criminal law. It appears that the writer has spent more time listining to MPAA propaganda than he has researching the actual law.)

Assange and Rape Apologism

Robot-Heart over AZSpot disagree on how we should discuss the rape charges against noted leaker Julian Assange.

Rape apologism usually stems from a gut feeling that not all rapes are equally abhorrent. Society reacts differently to cases where consent was impossible due to age or intoxication than it does to aggravated rape by physical force. It gets even harder when we get into the murky areas involving mistakes about consent. “He behaved badly,” we might say. “But he’s not a rapist.” At least, he doesn’t fit our picture of a “rapist”—even if he (or she) fits the legal definition.

Just as there are different degrees of murder, there are different degrees of sexual assault. But sexual assault, like murder, is always criminal, always abhorrent, and never okay.

Julian Assange has been charged with rape. Sweden’s rape laws are more nuanced than ours—which I think is good policy. It allows the recognition of the gravity of offenses without inviting apologetic comparisons to more graphic offenses. Assange has been charged with the least severe type of rape somebody can commit and still be a rapist. If convicted, that still means he’s a rapist. (The type of rapist who alleges all sorts of international conspiracy to cover his tracks.)

The facts of the case are a bit murky—but the crucial issue is what constitutes consent and whether consent, once given, is a blank check. It appears that Assange had consensual sex with with two women. (Seriatim.) Both women, apparently, consented to have protected sex with him. Assange, apparently, subsequently had non-consensual, unprotected sex with both of them. (Again seriatim.) Supposedly in one case a condom broke during the sex—which is clearly not criminal unless the sex continues post-rupture in a manner that one party doesn’t consent to. In the other case, the women was allegedly asleep when the sex occurred. (Or, as seems more probable, when the sex was initiated.) The primary legal issue appears to be whether consent to sex with a condom is the legal equivalent of consent to sex without a condom.

It isn’t. At least, it shouldn’t be. Consent isn’t a blank check. Consent to one sort of sex isn’t consent to any sort of sex.

Assange hasn’t been convicted of anything—but there are a few things nobody is disputing.

1) Assange had protected sex with both of these women. 2) Assange subsequently had unprotected sex with both of these women. 3) The women are pressing forward with rape charges. 4) Multiple courts in multiple countries have found the charges severe enough to pursue. 5) There has been no evidence whatsoever that anybody is exerting political pressure on the courts to persecute Assange. 6) Assange’s attorney says he didn’t do it. (When I did criminal defense, by extreme coincidence, none of my clients did it either. The astonishing part is that people accept Assange’s attorney’s version of events uncritically.) 7) Assange has attempted to deflect attention from the serious charges he faces by claiming they are politically motivated. 8) It seems to be working.

None of this has anything to do with whether WikiLeaks is a force for good, a force for evil, or something else. Assange, eccentric accused-rapist that he is, is not WikiLeaks. WikiLeaks is not Assange.

Edit: I think Lena Chen has an excellent take on the matter.

(Source: azspot, via azspot)