Can the U.S. Charge Julian Assange With Espionage? [Updated]

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Photo: Fabrice Coffrini/AFP/Getty Images

While every few hours seems to bring new revelations from WikiLeaks's trove of a quarter-million diplomatic cables, the Justice Department and the Pentagon are busy conducting "an active, ongoing criminal investigation" into International Man of Mystery, Julian Assange. No charges are imminent, but federal authorities are looking into the possibility of trying Assange, an Australian citizen, under the Espionage Act. The U.S., however, might have some problems prosecuting. For one, the Espionage Act was passed in 1917, before Supreme Court cases to expand protections under the First Amendment. If the government charged an individual who received and distributed classified information, rather than the person who leaked it, "mainstream media would express the concern that they could face prosecution for reporting information they routinely receive from government insiders," former attorney general Kenneth Wainstein told the Washington Post. Attorney General Eric Holder Jr. assured reporters yesterday that they'll find a way to make the charges against Assange, whatever they are, stick:


"Let me be very clear. It is not saber rattling ... To the extent there are gaps in our laws," Holder continued, "we will move to close those gaps, which is not to say ... that anybody at this point, because of their citizenship or their residence, is not a target or a subject of an investigation that's ongoing."

The prosecution also has to get around the fact that the cables reveal confidential information surrounding foreign policy and diplomacy, rather than military secrets. Under the Espionage Act, the U.S. will need to prove that a particular cable is a threat to national security, which could mean disclosing more classified information to a jury in order to demonstrate the danger.

But problems inherent in the clash between the First Amendment, criminal law, and national security aside, there's also the matter of, well, finding Assange. Most countries' extradition treaties do not cover crimes viewed as political. And Assange, whose whereabouts are unknown, has avoided traveling. Not that he isn't welcome elsewhere. Ecuador's left-leaning government wants to show Assange what it's like in "friendly countries" by offering him refuge and the leeway to "freely expound," particularly on the matter of those 1,621 cables that originated from the U.S. Embassy in Quito.

Lucky for federal authorities, they're not the only ones after Assange. His own government said they have "no option but to absolutely condemn" the leak, and that they've just become aware of the U.S.'s request to cancel his passport. Interpol issued an arrest warrant for Assange earlier this month based on charges in Sweden on suspicion of rape and sexual harassment. Today, Assange filed a second appeal — the first was denied — against the Swedish court that wants to detain him. Assange has continued to deny the charges, maintaining that they're part of a "smear campaign" for whistle-blowing state secrets. We're starting to get the feeling that the next WikiLeaks data dump is going to be on the Assange investigation.

WikiLeaks founder could be charged under Espionage Act [WP]
Ecuador offers Wikileaks founder Assange residency [BBC]
Assange fights rape probe ruling [UKPA]

Update: WikiLeaks claims its website is under a large-scale cyberattack this morning, with malicious traffic coming in at ten gigabits per second. The "distributed denial of service," or DDOS, method is commonly used by hackers. WikiLeaks says the site, which faced a smaller cyberthreat Sunday, is down in Europe and the U.S. But it appears to be intermittently accessible. [CBS News, WikiLeaks/Twitter]