2010-12-02 WikiLeaks and the US Espionage Act: legal opinions

"Attorney General Eric H. Holder Jr. has confirmed that the Justice Department is examining whether Mr. Assange could be charged with a crime, but legal scholars say that such an effort would encounter steep legal and policy difficulties," writes Charlie Savage in the New York Times.

“The government has never brought an Espionage Act prosecution that would look remotely like this one,” law professor Stephen I. Vladeck told Savage. “I suspect that has a lot to do with why nothing has happened yet.”

"A relic of World War I, the Espionage Act was written before a series of Supreme Court rulings expanded the First Amendment’s protection of speech and press freedoms. The court has not reviewed the law’s constitutionality in light of those decisions," continues Savage. He points to a 2005 case which "ended in embarrassment" for the government because it could not prove that the accused "specifically intended to harm the United States or benefit a foreign country."

“If you could show that [Assange] specifically conspired with a government person to leak the material, that puts him in a different position than if he is the recipient of an anonymous contribution. If he’s just providing a portal for information that shows up, he’s very much like a journalist,” said Jack M. Balkin, a Yale professor of constitutional law.
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Reuters' Mark Hosenball writes that "U.S. authorities could face insurmountable legal hurdles if they try to bring criminal charges against" Assange. "Three specialists in espionage law said prosecuting someone like Assange on those charges would require evidence the defendant was not only in contact with representatives of a foreign power but also intended to provide them with secrets. No such evidence has surfaced, or has even been alleged, in the case of WikiLeaks or Assange."

Reuters quotes Mark Zaid, a defense lawyer who specializes in intelligence cases, saying it would be "very difficult for the U.S. government to prosecute (Assange) in the U.S. for what he is doing."

"Joseph DiGenova, a former U.S. Attorney in Washington who prosecuted high-profile espionage cases, said that federal authorities would face "pretty tough" legal obstacles if they tried to bring a prosecution against Assange. But he said officials like Holder had to make threats of prosecution, even if they lack legal substance, to "send a signal" to other would-be leakers."
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Trevor Timm of the New York Law School has already made the case last month that WikiLeaks and Julian Assange have committed no crime in publishing such information.