WASHINGTON — Even as some government officials contend that the release of thousands of classified documents by WikiLeaks founder Julian Assange jeopardizes U.S. national security, legal experts, Pentagon officials and Justice Department lawyers concede any effort to prosecute him faces numerous hurdles.
Among them: Prosecutors apparently have had difficulty finding evidence that Assange ever communicated directly with Army Pfc. Bradley Manning, 23, an intelligence specialist who's widely thought to be the source of the documents, but is charged only with misusing and illegally downloading them.
Prosecutors declined to discuss what evidence they have in the Manning case, but three Pentagon officials who cautioned that their information is two months old told McClatchy this week that as of that time prosecutors had no evidence tying Manning to Assange.
The prosecution is now working under the theory that Manning, who was arrested in May in Iraq and is being held at the Marine Corps base at Quantico, Va., provided the information to an unnamed third party who then passed the information to WikiLeaks, according to the officials, who agreed to speak only on the condition of anonymity because the case is still under investigation.
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Manning, who faces as many as 54 years in prison on 10 charges, isn't cooperating with prosecutors, the officials said. His attorney, Maj. Thomas Hurley, didn't answer numerous calls seeking comment.
In addition, any potential Assange prosecution on charges that he intentionally threatened U.S. national security would be complicated because top national security leaders disagree about how damaging the leaks have been. Secretary of State Hillary Clinton said the release could put lives in danger, but Secretary of Defense Robert Gates last week called the reaction "overwrought" in a briefing with reporters.
Also unclear is what law would apply. The Justice Department would most likely charge Assange under one of two laws — the Espionage Act of 1917 or theft of government property, former prosecutors and experts agree.
Either charge would be the first of its kind, however.
No journalist or publisher has ever been successfully prosecuted under the Espionage Act. "We are talking about creative legal territory," said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists and a regular critic of government secrecy policies.
As for theft of government property, that law was designed for actual things, not electronic information to which the government never lost access, experts point out. Throughout Manning's alleged downloading of the documents onto a CD, other government officials could still read the documents — an important difference, experts say, from taking hard copies out of a room to copy them.
"Whether that law can be extended to electronic information is a very open question," said Baruch Weiss, a litigation partner at Arnold & Porter, who specializes in white-collar and national security matters. Weiss is also a former federal prosecutor and served in the Treasury and Homeland Security departments.
Jeffrey Smith, also a partner at Arnold & Porter who served as the CIA's general counsel from 1995 to 1996, agreed.
"We are in an area where law is not clear," he said. "Technology and journalism are changing quickly. The law may not be keeping up but the government responsibility is the same."
To charge Assange under the Espionage Act, the government must prove that he knowingly acted in bad faith with the intent of harming the government and that his freedom to publish isn't protected under the First Amendment, which prohibits Congress from passing laws that restrict the freedom of the press.
The government is likely to argue that Assange knew he was threatening U.S. national security because State Department Legal Adviser Harold Hongju Koh sent Assange a letter Nov. 27 warning him that publishing thousands of diplomatic cables violated U.S. law.
But Weiss said that argument could be undermined by the fact that the State Department didn't respond to several requests from Assange to work out which documents threatened national security.
Proving harm to U.S. national security also would be challenging. The government would likely have to release additional classified information to prove its case, Weiss said. And in an opinion column published in The Washington Post earlier this week, Weiss wrote that Assange's "defense would argue vigorously that prior assessments of harm due to leaks have proven over time to be wrong."
Such a prosecution also would hinge on a finding that Assange isn't a journalist. But the courts have never explicitly defined what makes someone a journalist — a job classification made increasingly fuzzy by the ability of millions of people to self-publish blogs on the Internet — and the government has refrained from charging journalists in cases involving the leaking of government documents.
A Congressional Research Service report written earlier this month on how the government could prosecute Assange noted that at least up to now the courts have found that "although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected."
Finding that WikiLeaks isn't a journalistic organization would also be difficult. While its current release of government documents has drawn the most attention, the organization has published reports on many other topics since its founding in 2006, including a United Nations report alleging the abuse of girls and women by peacekeepers in eastern Congo and 573,000 messages from pagers purportedly chronicling the events of Sept. 11, 2001.
In a 2008 case, several U.S. news organizations, including the Los Angeles Times, the Society of Professional Journalists, Gannett, Hearst and E.W. Scripps filed court briefs supporting WikiLeaks' right to publish after Bank Julius Baer of Switzerland sued in U.S. federal court to prevent WikiLeaks from publishing bank records.
The records, WikiLeaks said, showed that prominent officials from several countries had used the bank to hide assets and avoid taxes. After initially issuing an injunction blocking the publication, the judge reversed himself, saying the case raised "serious questions . . . . of possible violations of the First Amendment."
The legal ambiguity also creates political challenges, Aftergood said.
"Do you run the risk of increasing public support for WikiLeaks activities instead of the opposite? What are the consequences of prosecuting and then losing?" Aftergood asked. "Which course of action is more likely to serve the government's interests? What if a prosecution does not stop the disclosure but accelerates them? What if it inspires the rise of copycat ideas?"
That certainly is a possibility. After the WikiLeaks site came under attack last week, other websites began to mirror its content; according to WikiLeaks, 1,559 other sites were carrying its content in full as of Friday. WikiLeaks also says it has provided encrypted copies of all 251,287 documents to at least 100,000 people and that it will provide the 256-digit passcode to open the files if "something happens" to Assange or WikiLeaks is somehow prevented from operating.
Any U.S. criminal action also is likely to run up against difficulties winning Assange's extradition from Europe. Experts agree European courts will be hesitant to hand Assange over without clear evidence against him of violating U.S. law.
Despite the obstacles, Smith, the former CIA general counsel, thinks the U.S. must prosecute.
The sheer volume of documents makes it likely that the government can find at least one example that proves Assange damaged U.S. national security, he said. He said the fact that WikiLeaks solicits those with classified information to provide it to the website shows an ongoing effort to harm U.S. national security.
To not prosecute, given the number of documents, would be a bad precedent, he said.
"The U.S. government, I just don't see, throwing up their hands and saying there is nothing we can do," Smith said.
Still, any prosecution is likely only to dissuade others from publishing secrets in the future and won't prevent the continued release of the State Department documents, experts agree. WikiLeaks already has said it has the U.S. government's assessment of every detainee who was ever held at Guantanamo Bay and will release the documents next week.
"I don't see a clear linkage between prosecuting and a cessation of publication," Aftergood said. "If prosecution would lead to an end to the publication of these documents, the decision might be straightforward. If prosecution is essentially irrelevant to the process of further disclosure, we are back to where we started."
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