Last week we had a discussion going in my constitutional law class about what should or should not be secret, the wikileaks scandal came up and one of my classmates thought Assange should be prosecuted. My answer to this was three part: First, Assange did not steal the information, he received it, the person who stole the information is guilty of disseminating secret information, Assange is not. This brings me to my second point, Assange is, ostensibly, a journalist, if he were an American citizen then printing the material would likely fall under Freedom of Press and The New York Times vs United States. Lastly, Assange is not a U.S. citizen, so he is not subject to our laws.
My professor took me aside today and said he had meant to address that last argument after class, turns out that Section 8 of the USA PATRIOT Act extends the reach of U.S. law to foreign nationals in their own countries. The international community and World Court do not concur, but the United States has never recognized any authority but their own. It seems I stumbled into a larger debate.
What do you think? Should the United States prosecute foreign nationals who have violated U.S. law outside of U.S. soil? What right do we have to do this? It should be mentioned that the provision of the PATRIOT Act that allows this is strictly constitutional, as the constitutional places no limit on the reach of the Congress powers.
I don't know how to do that by just using judical means. Getting somebody extradited under these circumstances seems impossible without political pressure.
We can try them in absentia and, in the case of at least one Panamanian citizen, extract them from their home countries by force. We don't seem to give much of a damn about sovereign borders anymore. Political pressure is also an option, and the U.S. has a tremendous amount of clout. The international courts view this as a precedent for anarchy, after all, if we can operate under these rules, why not England, Germany, Israel, Iran.
The U.S. perspective is understandable, but to my view, misguided. We're tired of letting the "bad guys", as George W. Bush called them, get away, we want to be able to go and get them to prevent them from doing something we'll regret. But the scope... In the past the powers of the courts to enforce U.S. law has been limited to U.S. territory because no one would exercise the force necessary to project those powers elsewhere. The PATRIOT Act proclaims that we are now willing to do just that.
What does that make us? We're now dictating law to the entire world, at least those countries without the clout to stop us. If we're prosecuting them under U.S. law, in U.S. courts, aren't they guaranteed constitutional rights? When we prosecute illegal aliens they are afforded due process of the law. If we're extending authority and constitutional protections aren't we, in fact, extending U.S. domain?