Prosecuting WikiLeaks: It's Not Going To Be Easy

WikiLeaks founder Julian Assange

hide captionWikiLeaks founder Julian Assange, shown at a press conference on Nov. 4 in Geneva, may prove difficult to prosecute using the Espionage Act, a World War I-era law.

Fabrice Coffrini/AFP/Getty Images

Law enforcement officials in the United States and around the world are turning up the heat on the website WikiLeaks and its founder, Julian Assange. But all the attention doesn't mean that they will face American-style justice, experts said, because the legal issues in play are both novel and challenging.

Attorney General Eric Holder told reporters this week that there's a real basis to believe crimes have been committed with WikiLeaks' unauthorized release of secret diplomatic cables.

"To the extent that we can find anybody who was involved in the breaking of American law, and who has put at risk the assets and the people that I have described, they will be held responsible," Holder said. "They will be held accountable."

A team of prosecutors and FBI agents in Virginia are aggressively looking at who can be prosecuted using the Espionage Act, a World War I-era law, sources told NPR.

Military prosecutors have already locked up Army Pfc. Bradley Manning, who has been accused in the military justice system of passing information to WikiLeaks.

Experts said that making a case against a government employee who promised to keep the nation's secrets is pretty easy from a legal standpoint. By contrast, Washington defense attorney Abbe Lowell said, prosecuting the website WikiLeaks is no slam-dunk.

"The biggest taboo that has been out there, sort of the dirty little secret in the Espionage Act for a long time, has been whether it would ever be used to prosecute somebody in the media, as opposed to the government employee leaking the information,” Lowell said.

The dilemma, Lowell said, is whether WikiLeaks is a member of the media that warrants special free speech protections, or more like a rogue operation dedicated to hurting the U.S.

"What I worry about and what many worry about is that WikiLeaks makes it easy for the law enforcement community to apply this law for the first time, in a precedent-setting way, that can be used against other people in the media," Lowell said.

WikiLeaks' controversial founder, Assange, is also getting a close look from law enforcement agencies in the United States and abroad. Assange's whereabouts are unknown, and Interpol has put out a notice directing people who see him to notify Swedish authorities so they can detain him in connection with rape allegations in that country.

Scott Silliman, a law professor at Duke University, said any U.S. indictment of Assange requires close analysis.

"They have got to actually show that he came within the context of the Espionage Act," Silliman said. "And in my judgment, that's not an easy case to prove."

That's because Assange could argue that he made U.S. diplomatic cables public for a legitimate reason — to influence foreign policy — forcing prosecutors to demonstrate that he acted instead to help America's enemies.

The Justice Department recently dropped an espionage case against two lobbyists because of that high legal bar, which makes focusing on the people who passed the information to WikiLeaks a simpler legal call.

"I think the Justice Department and the Department of Defense are looking for anyone who was in control of the classification process or the maintenance of classified information or the servers that contained the [information]," Silliman said. "If anyone was grossly negligent and allowed or helped to allow this information to be released, I think that will all be part of this probe."

The Justice Department said people shouldn't expect any criminal charges soon — one more reflection of the difficult legal challenges that this case presents.

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