Did WikiLeaks founder Julian Assange commit a crime?

The US Justice and Defense departments are investigating whether they can press charges against Australian citizen and WikiLeaks founder Julian Assange, possibly under the Espionage Act.

Valentin Flauraud/Reuters
Julian Assange, founder of WikiLeaks, is pictured during a news conference at the Geneva Press Club in Geneva, on Nov. 4.

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Australian and US law enforcement agencies are reportedly studying the possibility of criminal charges against WikiLeaks founder Julian Assange, including charges under the Espionage Act, for publishing classified US diplomatic cables.

"We have an active, ongoing criminal investigation with regard to this matter," US Attorney-General Eric Holder told a press conference on Monday.

Such charges, if pursued, could sharply up the legal pressure on WikiLeaks and 39-year-old Mr. Assange, who already faces allegations of rape in Sweden. (Assange's lawyer says the case involved consensual sex, and Assange has claimed it's part of a "smear campaign" against him and the site, according to British newspaper The Daily Telegraph.)

Charges would also add a legal dimension to the mounting outrage and debate over WikiLeaks' decision to go public with more than a quarter of a million US diplomatic cables dating from the 1960s through February this year. The entire cache of 251,287 cables was provided early to Der Spiegel, El País, Le Monde, and The Guardian (who in turn passed them along to The New York Times), but only 281 cables are public so far on WikiLeaks.org.

'People like this are criminals'

The Washington Post cited several unnamed sources in reporting that the US Justice Department, Defense Department, FBI, and US district attorney's office in Alexandria, Va., were all probing WikiLeaks' cable-dump.

One expert told the Post that US authorities have already laid the groundwork for legal action against him, and that he could be liable under the Espionage Act. "I'm confident that the Justice Department is figuring out how to prosecute him," Jeffrey Smith, a former CIA general counsel, told the Post.

Smith noted that State Department general counsel Harold H. Koh had sent a letter to Assange on Saturday urging him not to release the cables, to return all classified material, and to destroy all classified records from WikiLeaks databases.

"That language is not only the right thing to do policy-wise but puts the government in a position to prosecute him," Smith said. Under the Espionage Act, anyone who has "unauthorized possession to information relating to the national defense" and has reason to believe it could harm the United States may be prosecuted if he publishes it or "willfully" retains it when the government has demanded its return, Smith said.

On Monday, White House press secretary Robert Gibbs said flatly, "WikiLeaks and people that disseminate information to people like this are criminals," according to CBS News.

Australia investigating

But other experts say the US could face an uphill battle in pursuing legal charges. Kenneth Wainstein, former assistant attorney general for national security, told CBS News that US espionage laws, including the 1917 Espionage Act, were outdated.

"Those were designed for a different era, a different kind of espionage threat," Wainstein said. "They talk about sketches and code books and signal books. They weren't designed to deal with a mass leak on the Internet."

Australia has also ordered federal police to probe the possibility of charges against Assange, and has formed a task force to pore over the leaked cables, according to Australia's The Age newspaper. The paper paraphrased Attorney General Robert McClelland saying Assange "might face an unpleasant welcome if he returned to Australia."

"The leaking of this substantial amount of information is of real concern to Australia," McClelland said. "Every indication is that some of the documentation could relate to national security classified documentation [and] could prejudice the safety of people referred to in the documentation, and indeed could be damaging to the national security interests of the United State and its allies, including Australia."

Related: WikiLeaks: Bradley Manning isn't a criminal. He's a hero.

Where is Assange?

Meanwhile, the Telegraph reported that Assange was lying low at an undisclosed location in London, out of fear that a public appearance could lead to his arrest and extradition to Sweden to face allegations of sexual assault. Early this month a Stockholm court released an international warrant for his arrest, the Telegraph reported.

... Sources close to Mr Assange admitted yesterday that he had been deliberately kept out of the limelight because of fears that the rape allegations would become a diversion from the story of the leaks.

The Metropolitan Police prioritises international arrest warrants involving allegations of murder or rape, and if the force became aware of an address where Mr Assange was staying, or a location where he was going to be attending a meeting, officers would seek to arrest him, sources said yesterday.

Assange's only appearance since the diplomatic cables began being posted has been "a short piece of grainy mobile phone footage which he had filmed himself in what appeared to be a hotel room," the Telegraph said.

Ecuador offers asylum

But Assange got a rare show of support from Ecuador, which has offered to take him in without condition, according to a report in RTT News attributed to Ecuadorinmediato. (See Spanish-language report here.)

"We are ready to give him residence in Ecuador, with no problems and no conditions," the country's Deputy Foreign Minister Kintto Lucas told the Internet site Ecuadorinmediato on Monday.

"We are going to invite him to come to Ecuador so he can freely present the information he possesses and all the documentation, not just over the internet but in a variety of public forums," Lucas added.

Ecuador's offer reflects its current government's "not so warm relations with Washington," according to RTT News.

US officials believe WikiLeaks obtained more than 250,000 US diplomatic cables and other sensitive information from US Army intelligence analyst Pfc. Bradley Manning, who is thought to have downloaded them from secure US communications systems while serving in Iraq. WikiLeaks has refused to reveal who provided the files.

Manning was arrested in May for unauthorized downloading and distributing of those files, and is now in solitary confinement in a military prison in Quantico, Va., awaiting a likely court-martial. He was charged in July with crimes that carry a maximum 52-year jail sentence, according to the Telegraph.

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