Wikileaks: Unlikely US prosecution

8 December 2010 Last updated at 18:06 ET

Wikileaks: Barriers to possible US Assange prosecution
By Daniel Nasaw BBC News, Washington
Julian Assange in a car The US would be hard pressed to extradite Mr Assange, experts say

The US government will face significant legal and diplomatic hurdles if it attempts to prosecute Wikileaks founder Julian Assange in connection with the massive internet dump of secret US documents, legal scholars, defence lawyers and former prosecutors say.

Mr Assange is currently held in Britain awaiting possible extradition to Sweden on sex crime charges. But the US authorities have made it clear they hope to prosecute him in the US over the release of thousands of classified diplomatic cables.

US Attorney General Eric Holder said officials were pursuing a "very serious criminal investigation" into the matter.

Yet while Mr Assange has widely acknowledged his role in disseminating classified documents, legal experts say US criminal statutes and case law do not cleanly apply to his case.

US espionage law has been used to prosecute US officials who provided secrets to foreign governments or foreign spies who pursued US secrets.

But Mr Assange, an Australian citizen, former computer hacker and self-described journalist, did not work for the US government, has no known links to foreign governments, and operates on the internet, by all accounts far from US soil.
Proof of harm

No single US law makes it a crime specifically to disclose classified government documents, but legal experts say the government would most likely prosecute under the Espionage Act of 1917, although Mr Holder cited "other tools at our disposal".

Under the Espionage Act, prosecutors would have to prove Mr Assange was aware the leaks could harm US national security, or show he had a hand in improperly obtaining them from the government.

"That act is a difficult act to prosecute people under, especially someone who might be considered a journalist, as he would argue he is," said Gabriel Schoenfeld, a senior fellow at the Hudson Institute and author of Necessary Secrets: National Security, the Media, and the Rule of Law.

In only known one instance has the US prosecuted for espionage individuals who were neither in a position of trust with the government nor agents of a foreign power. That effort ended in failure.

In 2005, two pro-Israel lobbyists associated with Aipac, an Israeli interest group, were indicted and accused of obtaining government information and spreading it to colleagues, journalists and Israeli diplomats. But prosecutors dropped the charges after a judge ruled they would have to prove the pair knew distributing the information would hurt the US.

In Mr Assange's case, lawyer Baruch Weiss, who represented the pro-Israel lobbyists, noted in a Washington Post article that Secretary of Defence Robert Gates has said the leaked diplomatic cables were embarrassing but would have only "modest" consequences for US foreign policy.

In addition, in November Mr Assange contacted US Ambassador in London Louis Susman asking for help redacting information that could put individuals at risk. When the US government refused, Mr Assange wrote he therefore concluded the risk of harm was "fanciful" while stating he had no interest in hurting US national security.
'Leaks rarely punished'

If Mr Assange were convicted, he could claim that he is a journalist afforded free speech protections under the US constitution - and would have a strong defence, some legal experts say.

"Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it," wrote Jennifer Elsea, a legal researcher for the US Congress, in a report obtained by the BBC.

Apart from the Espionage Act, another statute criminalises the taking of government secrets through unauthorised access to a computer, but prosecutors would have to show Mr Assange had a hand in obtaining the documents from the government.

And a law that punishes the theft of government records or property has never been used to prosecute recipients of the information, Ms Elsea wrote.

"There appears to be no statute that generally proscribes the acquisition or publication of diplomatic cables," she added.

Mr Assange's lawyers could also argue in court that the Espionage Act does not apply to foreign nationals acting outside of US territory.

But even getting Mr Assange to the US would prove troublesome, according to Jacques Semmelman, a New York lawyer and authority on extradition law.

Espionage is seen as a political crime, and political offences are not subject to extradition under the US-UK, US-Sweden and UK-Sweden treaties, Mr Semmelman said.