21 Aug Can the U.S. Prosecute Wikileaks’ Founder? Sure, If They Can Catch Him
The WSJ has an article on the U.S. Defense Department’s push for a criminal prosecution of Wikileaks for releasing U.S. government documents on the Afghanistan war.
Several officials said the Defense and Justice departments were now exploring legal options for prosecuting Mr. Assange and others involved on grounds they encouraged the theft of government property.
Bringing a case against WikiLeaks would be controversial and complicated, and would expose the Obama administration to criticism for pursuing not just government leakers, but organizations that disseminate their information.
I agree it would be controversial, and probably counterproductive, to try to prosecute Wikileaks’ founder Julian Assuange. But as a legal matter, I don’t think there are many obstacles to his prosecution under U.S. law, as conservative Marc Theissen argues here.
The most relevant law, the Espionage Act, would seem to cover Assange’s alleged conduct.
(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States,…(b) receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, . . . knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter;
Obviously, there is an intent issue here (Did Assange obtain the info for the purpose of or with reason to believe it would be used to injure the U.S.?), but I actually don’t think that would be a problem. Wikileaks’ lawyer seems to think that the real problem is Assange’s nationality and the fact that Wikileaks does not have a presence in the U.S. But this is not a problem at all.
The Espionage Act has long been held to apply to foreign nationals who commits acts while abroad (see U.S. v. Zehe, 601 F.Supp. 196 (D. Mass 1985).). The only problem seems to be actually capturing Assange. It is worth noting, of course, that abducting Assange, even in violation of the sovereignty of a country where the U.S. has an extradition treaty, would not prevent a U.S. court from trying him. (See U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)). And finally, Wikileaks may or may not have a First Amendment defense, and even if it does, the precedent of NY Times v. U.S., 403 U.S. 713 (1971), (the Pentagon Papers case) only seems to prevent prior restraint. Post-publication prosecution is probably OK under the First Amendment.
So Wikileaks really does have serious legal exposure, and pretty weak legal defenses. I hope they are getting better U.S. legal advice than the WSJ article describes. And if I were Assange’s lawyer, I would advise him to avoid the U.S., and international waters and airspace, for as long as possible.