Fwd: [Marxism] Washington considers espionage charges against Assange

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http://www.washingtonpost.com/wp-dyn/content/article/2010/11/29/AR2010112905973.html

WikiLeaks founder could be charged under Espionage Act

By Ellen Nakashima and Jerry Markon
Washington Post Staff Writers
Tuesday, November 30, 2010; 12:13 AM

Federal authorities are investigating whether WikiLeaks founder
Julian Assange violated criminal laws in the group's release of
government documents, including possible charges under the
Espionage Act, sources familiar with the inquiry said Monday.

Attorney General Eric H. Holder Jr. said the Justice Department
and Pentagon are conducting "an active, ongoing criminal
investigation.'' Others familiar with the probe said the FBI is
examining everyone who came into possession of the documents,
including those who gave the materials to WikiLeaks and also the
organization itself. No charges are imminent, the sources said,
and it is unclear whether any will be brought.

Former prosecutors cautioned that prosecutions involving leaked
classified information are difficult because the Espionage Act is
a 1917 statute that preceded Supreme Court cases that expanded
First Amendment protections. The government also would have to
persuade another country to turn over Assange, who is outside the
United States.

But the sources, who spoke on the condition of anonymity because
the inquiry is rapidly unfolding, said charges could be filed
under the act. The U.S. attorney's office in Alexandria - which in
2005 brought Espionage Act charges, now dropped, against two
former pro-Israel lobbyists - is involved in the effort, the
sources said.

The Pentagon is leading the investigation and it remains unclear
whether any additional charges would be brought in the military or
civilian justice systems. Pfc. Bradley Manning, an Army
intelligence analyst suspected of being the source of the
WikiLeaks documents, was arrested by the military this year.

Holder was asked Monday how the United States could prosecute
Assange, who is an Australian citizen. "Let me be very clear," he
replied. "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." He did not indicate that Assange is being investigated
for possible violations of the Espionage Act.

Although the Justice Department has taken the position that media
organizations could be prosecuted for printing leaked classified
information under the legislation, that prospect is unlikely
because of official aversion to running afoul of the First
Amendment, experts said. Indeed, the Justice Department has never
brought such a case, they said.

"Whenever you're talking about a media organization, the
department is going to look very closely to ensure that any
prosecution doesn't undermine the valid First Amendment
functioning of the press," said Kenneth Wainstein, former
assistant attorney general in the national security division.

But when it comes to Assange, Jeffrey H. Smith, a former CIA
general counsel, said: "I'm confident that the Justice Department
is figuring out how to prosecute him."

Smith noted that State Department general counsel Harold H. Koh
had sent a letter to Assange on Saturday urging him not to release
the cables, to return all classified material and to destroy all
classified records from WikiLeaks databases.

"That language is not only the right thing to do policy-wise but
puts the government in a position to prosecute him," Smith said.
Under the Espionage Act, anyone who has "unauthorized possession
to information relating to the national defense" and has reason to
believe it could harm the United States may be prosecuted if he
publishes it or "willfully" retains it when the government has
demanded its return, Smith said.

But, said former federal prosecutor Baruch Weiss, that statute
raises difficulties of its own. "How do you prove that a
particular cable about secret negotiations with Russia was
dangerous to national security? You have to disclose more
classified information to explain to the jury the damage brought
about by the disclosure," he said.

Perhaps the most significant issue is the Constitution's
protection of people's right to speak freely and to exchange ideas.

"If the government were to prosecute the person who received and
disseminated the classified information - as opposed to the
individual who leaked it from within the government - mainstream
media would express the concern that they could face prosecution
for reporting information they routinely receive from government
insiders," Wainstein said.

Fundamentally, Weiss said, the WikiLeaks case "is not about the
disclosure of troop movements to al-Qaeda or giving the recipe for
the plutonium bomb to North Korea. This is the widespread
publication of information that is important in determining the
future policy of the United States, that could be very important
for people in assessing how well our government is doing its job.
It's a good example of the problems created by the First Amendment
clashing with criminal law, the law protecting national defense
information."

All the experts agreed that it may be difficult for the United
States to gain access to Assange, who apparently has avoided
traveling to the country. Most nations' extradition treaties
exempt crimes viewed as political. "I can imagine a lot of Western
allies would view this not as a criminal act, but as a political
act," said Weiss, who was on the legal team that defended the two
former pro-Israel lobbyists.

Assange's legal pursuers are not confined to the United States.
The International Criminal Police Organization issued an arrest
warrant this month for Assange, who is wanted in Sweden on
suspicion of rape and sexual harassment. Interpol, which is based
in Lyon, France, said it had received the warrant from Swedish
police, according to wire service and newspaper reports.

Assange has proclaimed his innocence and suggested the accusations
are part of a U.S.-orchestrated smear campaign to undercut
WikiLeaks' prestige.

In addition to vowing to hold WikiLeaks to account, the
administration also instituted new measures to try to prevent leaks.

Office of Management and Budget Director Jacob J. Lew instructed
government departments and agencies to ensure that users of
classified information networks do not have broader access than is
necessary to do their jobs, and to restrict the use of removable
media such as CDs or flash drives on such networks.

OMB, the federal Information Security Oversight Office and the
Office of the Director of National Intelligence will evaluate aid
the agencies in their efforts to strengthen classified information
security, Lew said.

The White House move in turn comes a day after the Pentagon
announced similar steps to bolster network security following a
review ordered by Defense Secretary Robert M. Gates in August.

"Protecting information critical to our nation's security is the
responsibility of each individual who is granted access to
classified information," Lew said in his memo. "Any unauthorized
disclosure of classified information is a violation of our law and
compromises our national security."

But lawmakers and national security experts have chided the
administration for not moving long ago to shore up network
security. The U.S. military has been investigating Manning for
months because of suspicions that he passed large amounts of
classified material to WikiLeaks.

"There's been a great deal of attention paid to this issue for a
long time and a lot of work has been done," White House spokesman
Tommy Vietor said. "It's an ongoing process."

nakashimae at washpost.com markonj at washpost.com

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