Editor's Note: The distinctions Peter Kemp draws here between protected speech and incitement take on new relevance in light of the shootings in Tucson January 8.
It would seem appropriate at this point in time to examine some law on the numerous calls by various high-profile political or commentariat figures in the US (and one in Canada particularly) that Julian Assange be kidnapped, executed, murdered or otherwise "whacked," to use a favorite Hollywood gangster expression.
The CIA and/or US military forces have been invoked by some as the agents who would carry out such extra-curial "services," of which it must be said, such actions - both incitement and carrying the incitement out - are undoubtedly unlawful. Doubtless the early December Assange-illegal-posturing prime minister of Australia would not officially take kindly to the latter course of action.
The web roll of inciters or borderline inciters is growing.
Bob Beckel, an American political commentator and an analyst on the Fox News Channel, said, "There's only one way to do it: illegally shoot the s-o-b."
Tom Flanagan, ex-senior adviser to Canadian Prime Minister Stephen Harper, said, "I think Assange should be assassinated, actually." (He has since retracted this statement, which will help him if he is charged and convicted.)
Jonah Goldberg is among the less incite-ful. Goldberg is a US syndicated conservative columnist and author who asked, "Why wasn't Assange garroted in his hotel room years ago?" To be fair to Goldberg, he also said he didn't expect the US government to kill Assange, merely "to stop him."
Rep. Peter King (R-New York) said, "I mean, they are assisting in terrorist activity," when he requested that the administration have WikiLeaks declared a terrorist organization.
William Kristol wrote an article, "Whack Wikileaks" citing Marc Thiessen and asking, "Why can't we use our various assets to harass, snatch or neutralize Julian Assange and his collaborators, wherever they are?"
Jeffrey T. Kuhner, columnist at The Washington Times, wrote under an article, "Assassinate Assange":
He is aiding and abetting terrorists in their war against America. The administration must take care of the problem - effectively and permanently.... Mr. Assange is not a journalist or publisher; rather, he is an enemy combatant - and should be treated as such.... [W]e should treat Mr. Assange the same way as other high-value terrorist targets.
And so on. There are many more denouncements of Assange that border on incitement, including Vice President Biden's response to an interview question: "[Assange is] closer to being a high-tech terrorist."
One could assume, to be generous, that the vice president was pandering to much more extreme inciters and to the perceived political weakness on the subject of WikiLeaks, but the implied crucial question behind this list of incitements and near-incitements reminds us of a historical scenario in which the question pronounced is most commonly quoted today as, "Will no one rid me of this turbulent priest?"
Rhetorically meant statements, as Henry II readily - if belatedly - understood, can so easily become perceived imperatives among the minions.
While not all of these utterances and writings would necessarily satisfy the required elements of a charge of incitement, and notwithstanding the use of euphemisms such as "whack" or "permanently neutralize" and allusions to assassination by descriptions such as "terrorist organization" and "enemy combatant," they still leave an objective reader with little doubt that some of the authors want Assange dead, and that others would not be sorry to see it happen.
One other common thread that runs through all of the statements are mistaken assertions, or, at the very least, premature assertions, of illegality. As Glenn Greenwald pointed out recently and eloquently on a CNN broadcast, Mr. Assange is doing no more, or less, than what The New York Times is doing.
That, in any event, is a matter for a court to decide, if and only if Mr. Assange is charged with an offense, and if, and only if, he is then extradited to the US - both tall orders by many accounts, especially the latter.
Even if Julian Assange is charged, the presumption of innocence applies, and certainly there cannot be a presumption that he deserves death without trial - a form of hysterical presumption unknown to law that one might reiterate.
Inciting a crime was once a common law offense:
English common law
In English criminal law, incitement was an anticipatory common law offence and was the act of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime.... The inciter must intend the others to engage in the behaviour constituting the offence, including any consequences which may result, and must know or believe (or possibly suspect) that those others will have the relevant mens rea.
Many nations or states have since codified incitement law. A few examples are as follows:
(1) A person who urges the commission of an offense is guilty of the offense of incitement.
(2) For the person to be guilty, the person must intend that the offense incited be committed.
464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offenses, namely, (a) every one who counsels another person to commit an indictable offense is, if the offense is not committed, guilty of an indictable offense and liable to the same punishment to which a person who attempts to commit that offense is liable.
s.44 (1) A person commits an offense if:
(a) he does an act capable of encouraging or assisting the commission of an offense; and
(b) he intends to encourage or assist its commission.
In the United States, there is no automatic First Amendment protection per Brandenburg v. Ohio, 395 U.S. 444 (1969):
"Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
While such prima facie incitement by way of the utterances and writings we have seen may well go unpunished, presumably for political reasons, it will not necessarily go unpunished in other countries - and especially so should the inciters have the courage of their convictions to repeat those unlawful incitements in other jurisdictions. The gentleman from Canada appears to be in some legal hot water with a complaint, although it seems he has not yet been charged.
The inciters may well contemplate this writing of Mohandas Karamchand Gandhi, who taught the British Empire a thing or two about the exercise and effect of nonviolent noncooperation, a concept, we can readily assume, not unknown to Mr. Assange:
"An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it. Truth stands, even if there be no public support. It is self-sustained."
The truth is that Julian Assange is no terrorist; he is not a war-defined "belligerent" acting with intent against the United States; and he cannot be treasonous against the US, since, by definition, he is not a citizen of the United States.
And lastly, on truth, as Ron Paul put it so well:
In a society where truth becomes treason, however, we are in big trouble. The truth is that our foreign spying, meddling and outright military intervention in the post-World War 2 era has made us less secure, not more, and we have lost countless lives and spent trillions of dollars for our trouble. Too often its the official government lies that have given us endless and illegal wars resulting in hundreds of thousands of deaths and casualties.
This article is a much expanded variant of my open letter to the inciters at WikiLeaks Central.