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.
WikiLeaks founder Julian Assange has grabbed the world’s attention by publicizing a vast trove of secret US diplomatic documents. But his actions have also enraged top government officials around the world. How much trouble is he in, legally speaking?
Perhaps more than he has bargained for. Mr. Assange could be sent to prison for a very long time if the US is able to successfully prosecute him under the Espionage Act. The statute is a broad law that provides for harsh penalties, notes Stephen Vladeck, an expert in national security law at American University in Washington.
The real question may be whether the US Department of Justice wants to pursue the matter. Historically, the US has not prosecuted leak recipients. The US might not be eager to provide Assange a courtroom forum in which he can bring further attention to the contents of his trove of classified cables.
“Legally he is in quite a bit of trouble,” says Mr. Vladeck. “It remains to be seen if that is true in a practical sense.”
At the moment, Assange’s primary legal trouble is in Sweden, not the US. The international police organization Interpol has issued a “red notice” on Assange in conjunction with an arrest warrant for sex crimes filed in November by Sweden’s International Public Prosecution Office.
The “red notice” is not an international arrest warrant, however. It simply is a notice that a valid arrest warrant exists in a participating Interpol country. It does not compel a nation to hold Assange or extradite him to Sweden.
Assange’s lawyer has been scathing in his denunciation of the Swedish allegations, and says he will investigate whether they are linked to the US promise to pursue him for the leaks. (Editor's note: An earlier version of this story referred to "charges" against Assange. He has not been charged.)
Swedish officials have turned down offers to speak to Assange, and have yet to forward him a formal notice of the allegations he faces, said attorney Mark Stephens.
“Given that Sweden is a civilized country, I am reluctantly forced to conclude that this is a persecution and not a prosecution,” wrote Mr. Stephens in an e-mail to the Associated Press.
Meanwhile, White House spokesman Robert Gibbs on Wednesday took a tough line in response to inquiries about whether the US wishes to arrest Assange, either due to the Interpol “red notice” or for prosecution under US law.
“Obviously, there is a series of criminal activities that have happened that are being looked into, and our government has not ruled any options out,” said Mr. Gibbs in an ABC broadcast interview.
Some legal experts believe it would be difficult for the Justice Department to take Assange on. Prosecution of leak cases is notoriously tricky, in part because it is often difficult to establish the chain of leaking from the original source of the material to the recipient.
But the Assange case might be different, for several reasons.
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.