Hard cases make bad law, it is said. The U.S. government has a hard case to try to make against WikiLeaks founder Julian Assange for masterminding the biggest dump of classified government secrets in history. It will be up to the courts to try not to make bad law out of it.
On the surface, of course, the case looks like prosecutor’s child play. Assange has boasted globally about possessing what he claims are 250,000 classified diplomatic cables from the U.S. State Department. Over the past three weeks, he has been publishing them on the WikiLeaks site for all the world to see.
Confronted with such brazen flouting of the law, the government could hardly be expected to sit by idly, even given the Obama administration’s oft-stated commitment to transparency and openness. So no one should be surprised by Attorney General Eric Holder’s comment on Nov. 29, the day after the classified cables began appearing, that the government had “an active, ongoing criminal investigation with regard to this matter.”
A closer look, however, makes clear that any prosecution poses difficult problems for the government. It would also carry an inevitable risk of infringing freedom of speech and freedom of the press not just for Assange but also for established news organizations and the public at large.
The most obvious legal vehicle for prosecuting Assange would seem to be the Espionage Act. The 1917 law makes it a crime for anyone “having unauthorized possession” of information pertaining to national defense to publish or retain it if the information could be “used to the injury of the United States or to the advantage of any foreign nation”
As soon as the law was mentioned, however, legal experts began pointing out the difficulties. Steven Vladeck, a law professor at American University in Washington, notes that the government has never successfully prosecuted anyone under the Espionage Act for receiving as opposed to leaking classified information.
In the most analogous case, the government failed in prosecuting two lobbyists with the American Israel Public Affairs Committee (AIPAC) for obtaining classified military information and passing it along to Israeli officials. The government moved to dismiss the case in late April 2009 after the judge ruled the government had to prove that the two lobbyists knew the disclosure would harm the United States.
Government lawyers may have had that ruling in mind when the State Department’s legal adviser, Harold Hongju Koh, warned Assange in advance of publication of the potential harms that could result. Koh’s letter, dated Nov. 27, claimed that disclosures would “place at risk” the lives of journalists, human rights activists, bloggers and others as well as “ongoing military operations” and “ongoing cooperation” with other countries.
Maybe, but no conscientious court would accept the claimed dangers just on the government’s say-so. And to date the evidence of concrete harms is lacking.
Admittedly, the United States has been embarrassed by some of the candid disclosures from diplomats in the field. But Assange claims to be redacting the cables before publication. In any event, host countries that would do harm to human rights activists must already be aware of their conversations with U.S. diplomats. And it is unclear that the State Department diplomats have been guilty of loose lips in regard to ongoing military operations.
As an alternative, Justice Department lawyers are reportedly looking at the possibility of prosecuting Assange for conspiracy or trafficking in stolen property. That kind of prosecution would also present problems of proof. First is the conceptual difficulty of treating computerized copying as theft; the government, after all, still has everything that Assange claims to have.
More significantly, the government might need to show that Assange was actively involved in the leak itself. The leaker is widely believed to be Bradley Manning, an Army private and intelligence analyst in Iraq, who has been arrested and charged with unauthorized disclosure of classified information. Perhaps Manning has given government investigators some inculpatory information about Assange, but if so it has not yet been disclosed.
Even if Assange can be implicated directly in the leak, the government will have to walk a delicate line to avoid a prosecution that would criminalize the ordinary journalistic practice of ferreting out information that the government wants to keep secret. The government is contending that Assange is no journalist, but, as Vladeck suggests, Assange’s status as a journalist or not is not the issue. The First Amendment, after all, extends not only to established news organizations but also to pamphleteers, street-corner speakers, and, yes, Internet publishers of all sorts.
Apart from these problems, the government will first have to get its hands on Assange, who was ordered released on bail today [Dec. 14] pending an extradition request from Sweden to face charges of sexual assault. It is unclear how either England or Sweden would respond to a U.S. extradition request for what courts in either country might view as a political issue instead of a true crime.
Events may be coming to a head soon. Assange’s attorney, Geoffrey Robinson, is quoted as saying that the government has convened a federal grand jury in Alexandria, Va., and that an indictment may be imminent. If so, it will be only the first step in a hard case with grave risks for the government if it loses or the First Amendment if it wins.