An Assange prosecution would raise 1st Amendment issues

Tribune Washington BureauDecember 7, 2010 

WASHINGTON — Angry over the bombardment of leaks of classified material, top Obama administration officials are considering filing an extradition request with Sweden to have WikiLeaks founder Julian Assange face criminal charges, possibly for espionage.

Any such proceedings would set up a test of whether the First Amendment's protection for a free press extends to a website with a worldwide audience.

"What we're investigating is a crime under U.S. law," P.J. Crowley, a top State Department spokesman, said Tuesday. "The provision of 250,000 classified documents from someone inside the government to someone outside the government is a crime."

His remarks mirrored sharp words Monday from Attorney General Eric H. Holder Jr., who said prosecutors are weighing not only espionage but other crimes as well against the Australian citizen who through his website postings has embarrassed much of the U.S. diplomatic apparatus.

"We have a very serious criminal investigation that's under way, and we're looking at all of the things that we can do to try to stem the flow of this information," Holder said.

Holder added that prosecutors are looking beyond just espionage, and said that "there are other statutes, other tools that we have at our disposal." Among them, according to law enforcement sources, is charging Assange with receiving stolen property.

Assange, 39, was arrested in London on Tuesday and ordered to remain in custody until a hearing next week on his possible extradition to Sweden, where he faces questioning about allegations he sexually assaulted two women.

Mark Ellis, executive director of the International Bar Association, said in an interview that he believes the Obama administration will charge Assange with espionage and seek his extradition to the U.S. from Sweden. But he said Sweden would not turn Assange over to the U.S. unless it is assured that he will not face the death penalty. Although espionage carries a potential death penalty sentence, capital punishment is banned in much of Europe.

In addition, Ellis said, Assange certainly would fight extradition to the U.S., where his name has become anathema to many in Washington.

"This will not be an easy process," Ellis said. "It will be fairly drawn out. It's something that's going to be quite lengthy and quite challenging."

Once he arrives in Sweden, Ellis said, the first step for the U.S. would be to file a written request with that government outlining in detail exactly what charges might be brought against Assange here. "They would want to show that they have the evidence he has violated U.S. law," Ellis said. "The charges should be very specific, that we have the evidence and are preparing a case to show that he violated the Espionage Act, for instance." Also, Sweden must have the same crime on the books that the U.S. would bring against Assange.

Last week the U.S. government notified Assange that he has been treading very close to criminality. In a Nov. 28 letter to him and his attorney, Jennifer Robinson of London, the State Department warned it was illegal for the classified material to have been provided to Assange and that "as long as WikiLeaks holds such material, the violation of the law is ongoing."

Since 1917, the Espionage Act has made it a crime to "willfully communicate" secret government information that could harm national security. Yet, during all that time, the government has shied from prosecuting journalists or the news media for publishing classified information. The First Amendment's freedom of speech and the press has protected journalists in the past, though it is not clear whether the courts would consider Assange a journalist.

But experts in national security law say the WikiLeaks founder is likely to face prosecution because of the scale and brazenness of his operation.

"I think there is a very good chance of a prosecution" under the Espionage Act, said Washington lawyer Jeffrey H. Smith, a former general counsel at the CIA. "His actions are not those of a responsible journalist that would enjoy the protection of the Constitution. He solicited people to commit a crime by sending him classified information. And then he disclosed it on a transmission belt."

In the past, the government has been more willing to prosecute leakers of classified information rather than journalists who publish it, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. Assange could have "a pretty good defense," she said, if it were shown the classified cables were sent to WikiLeaks without his involvement. The Supreme Court has said the "innocent recipient of unlawful information" is usually protected in publishing it, she said.

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