WikiLeaks' Julian Assange: How much trouble is he in?
Wikileaks founder Julian Assange could be prosecuted under the Espionage Act, but the US has historically avoided pursuing leak recipients. His primary concern is a 'red alert' issued by Interpol for alleged sex crimes in Sweden.
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But the Assange case might be different, for several reasons.Skip to next paragraph
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First, the Obama administration has been far more interested in prosecuting leak cases than were its immediate predecessors. In May, for instance, an FBI linguist was sentenced to 20 months in prison for leaking classified information to a blogger. In August a State Department contractor, Stephen Jin-Woo Kim, was indicted under the Espionage Act for unauthorized disclosure of classified information to Fox News.
Second, the WikiLeaks case has developed into a highly public and embarrassing incident, and White House critics have stepped up pressure for some kind of US government response. Sarah Palin, Rick Santorum, and other potential Republican presidential candidates have called for Assange to be snatched or neutralized, presumably by the CIA. In that context, prosecution under the Espionage Act may look like a measured response.
And the Espionage Act is a blunt instrument, notes American University's Vladeck. Among other things, it makes it a crime to convey information with the intent to interfere with the success of US military forces. Violations can be punished by substantial prison terms. The statute allows for the death penalty in cases in which the publication of information results in the death of an individual acting as an agent of the US government.
While some in the US are calling on the Obama administration to pursue WikiLeaks as an organization, perhaps by designating it a terrorist organization, Vladeck says an Espionage Act prosecution is more probables.
“They’re far more likely to go after Assange directly,” he says.
Historically the main check on the use of this statute has been political and practical. During World War II, for instance, the US began a prosecution of the Chicago Tribune under the Espionage Act for publishing the information that the US had broken Japanese codes, says Vladeck. But it dropped the case, deciding that it did not want to bring further attention to that information.
The US would have to get Assange extradited to face charges, of course. That might be difficult, but forcing Assange to fight extradition could be a form of punishment in itself.
And it remains unclear how the Supreme Court would balance the Espionage Act statute with the free speech protections of the First Amendment – particularly when the publisher at issue is a foreign, not US, entity.
“The Espionage Act on its face applies to the receipt and unauthorized dissemination of national defense information... Whether the publication of national security information can be punished likely turns on the value of the information to the public weighed against the likelihood of identifiable harm to the national security, arguably a more difficult case for prosecutors to make,” concludes a recent Congressional Research Service report on the issue.