From an email sent out last night by Constitution Society founder and president, Jon Roland


The Wikileaks saga raises a number of constitutional issues, which deserve to be discussed on this forum. Here are a few:

1. By original understanding and the law of nations as of 1787, an offense is “committed” at the point in space and time of concurrence of mens rea with actus reus, not where the causation and harm may occur. See Introduction to Edward S. Stimson’s Conflict of Criminal Laws. Penal jurisdiction is limited to U.S. soil for all offenses based on where they are committed, except for piracy and felonies on the high seas, or treason by a U.S. citizen. Such extraterritorial jurisdiction does not extend into the territories of foreign states, although we might reasonably deem international commons like Antarctica, or the territory of failed states, to be “high seas” for constitutional purposes.

2. The 20th century saw the advent of “jurisdiction creep” and the doctrine of extraterritorial reach. However, I am unaware that other nations have authorized the United States Congress to make laws for their citizens and their territories. Absent the emergence of the government of the United States as the de facto or de jure world government, it would seem that the reach of U.S. laws to an Australian citizen operating entirely outside the United States is dubious.

3. The Constitution defines treason, but not lesser included offenses. It is either treason, for U.S. citizens, or piracy, for foreign nationals offending U.S. targets, or U.S. nationals offending foreign targets. There would seem not to be any other alternatives. Espionage only arises from the law of war, and for it to apply, there must be a declared state of war. Last I checked, the U.S. Congress had not declared war on Sweden.

4. Contrary to any alleged damage that might have resulted from the publication of information provided by parties unknown, which Wikileaks staff have apparently been diligent in redacting to protect innocent lives, we have some very heavy-handed responses, obviously instigated by the U.S. government, that raise serious civil libertarian concerns: freezing of bank accounts, deletion of the domain name, “arrest” for “questioning” on a alleged “rape by surprise”. It would seem that not only do we need to improve information security, but we need to cut off the ability to make such interventions, without legal authority. That is a far greater scandal than anything Wikileaks may have done.

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