What's good for the goose...

What is Assange saying to his lawyers?

Julian Assange, the Wikileaks guy, is sitting in jail today. He's been awarded bail, but the Swedes are objecting, so he's staying put. Of course, he's not been arrested for anything to do with Wikileaks (not officially, anyway). Instead, he's been arrested on a rape charge. Maybe the rape charge is a real charge, and maybe it's bogus to keep him locked up while they figure out what to do with him. This is not very clear from the news reports.

But what is clear is that Mr. Assange has lawyers. We know this because they have been talking to the media. I have a hunch that Mr. Assange has some very good funding, and therefore some very good lawyers. I also believe that, whether he's tried in the UK, Australia, or Sweden, he will get a fair trial. His lawyers will see to that. They've already succeeded in getting a UK magistrate to grant bail.

Good lawyers need certain tools to be effective. As one of these tools, the law in most Western systems recognizes, in one form or another, the attorney-client privilege. This is a doctrine that is designed to encourage full and frank dialogue between attorney and client. It is called a legal privilege. The "privilege" part means that third parties are not allowed to discover what the attorney has said to the client, and vice versa. Without that privilege, the thinking goes, it would be more difficult for attorneys and clients to communicate freely with one another. If the client knows that everything he says, or writes, to his lawyer will become public, the client will be reluctant to communicate freely with the lawyer. The privilege attaches to oral discussions, and to documents too.

In general, the attorney-client privilege is recognized as a good thing. The wisdom behind this privilege developed over several hundred years. This collective wisdom teaches us that the privilege improves, rather than hinders, our legal system. Clients are able to apprise their lawyers, and lawyers to advise their clients, and this works to the benefit of everyone.

The Western world recognizes other, similar privileges, such as the doctor-patient privilege. Again, for the most part, these other privileges are good. Society is better off with these privileges than without.

Another such "privilege" (though not normally named as such) is the privilege that attaches to diplomatic communications. As the thinking goes, diplomats need to be free to communicate with one another without fear that the communications will be made public. Without the privilege, diplomats will have to be more circumspect in sharing information with other diplomats. For instance, if a diplomat has information that another country is about invade an ally, that diplomat needs to be able to communicate that to the ally without putting his own country (and perhaps his own life) at risk.

Like other forms of privilege, this doctrine developed over hundreds of years. Like other privileges, it's a good thing, not a bad thing, in most cases. Diplomacy is improved when diplomats can speak freely and confidentially, much as the legal system benefits when attorneys can speak freely to clients, or when doctors and patients can speak freely to one another.

As everyone knows, Mr. Assange is not a fan of this diplomatic privilege. In receipt of a large trove of diplomatic communications, he cheerfully posts them to the Internet. Not shy about commenting on the documents, he invites the world, for instance, to examine some cables to reveal "the true nature of the Afghan war." (He's no fan of business secrets either; soon, we suspect, he will post a large trove of Bank of America files. My mortgage is with that bank, so maybe you'll soon learn my salary and social security number.)

I am very curious to learn whether Mr. Assange feels the same way about other privileges recognized at law. In particular, I'd like to know how Mr. Assange feels about the attorney-client privilege. He probably doesn't read this blog, so I suspect we won't get an answer, but we can still ask the following questions.

-Will you agree, Mr. Assange, to share with us all of the correspondence and documents that you have exchanged with your lawyers? We will find a home for these documents on the Internet.

-Will you direct your lawyers to share all of their notes concerning your case, and to create all of their future notes on a public forum, such as a publicly shared Google Documents account?

-Will you agree to record, and transcribe, all of your telephone discussions with your lawyers, so we can post the transcripts online? We would like to post then for the world to see, so they can examine "the true nature" of your rape charge?

-If not, can we at least listen in on those discussions?

-Ditto for your lawyers' internal discussions. Will you direct them to record their discussions with one another about your case? We would like to post these as well to the Internet.

-If you're charged with espionage, or some other crime relating to Wikileaks, will you make the same commitment for your attorney-client communications there?

-Ditto for any civil suits. If you reveal the name of a spy, or intelligence source, and that person loses his job (or life), you might get sued. Will you be sure to abandon the attorney-client privilege in any civil cases that you become involved with?

Something tells me we will not see an "Assangeleaks" any day soon. Mr. Assange undoubtedly will avail himself of the full benefits of a fair legal system in defending against his rape charge, and against any future legal charges or claims. He will likely assert the attorney-client privilege. We will then see if Assange puts his money where his mouth is.