The next close call came decades later, in the 1971 "Pentagon Papers" case, when the Supreme Court rebuffed the Nixon administration's attempt to restrain publication by the New York Times of a leaked Defense Department study of errors made fighting in Vietnam.
But while the court made it clear that the government could not stifle reporters for publishing the truth, it left open the possibility of punishing them for it. Five of the nine justices said they would have been open to criminal prosecution after the stories had run. (After Watergate, however, the government lacked the will to do so, and no such prosecution ever took place.)
Thus, Assange can take only cold comfort from Espionage Act precedents. But sticky issues still remain: getting Assange inside American borders will require at least some cooperation from authorities abroad, and, even if the government secures an indictment, convincing 12 out of 12 jurors that WikiLeaks harmed the US is no sure bet. Rather than injuring the nation, Assange's lawyer could argue, the disclosure might have served Americans by providing a clearer picture of what's being done in their name and with their tax money.
But the Espionage Act is not the only avenue available to prosecutors. US law lists approximately 4500 distinct federal crimes — up from 3000 in 1980 — many of which are derived from vaguely-worded statutes whose language allows for a wide variety of applications.
And unearthing those applications is something of a prosecutorial sport. Over beer and pretzels, federal prosecutors in Manhattan would play a parlor game fit for a Dickens novel, as Columbia Law School Professor Tim Wu recounted in a 2007 Slate series. Random celebrities would be named — say, Mother Teresa or John Lennon — and prosecutors would search for plausible statutes to pin on the hapless headline-makers. The more obscure the law, the better.
So it's no mere posturing when Holder says, with regard to the Espionage Act, that "there are other statutes, other tools that we have at our disposal."
Consider the following prosecutorial options:
CONSPIRACY Prosecutors are reportedly looking into whether Assange collaborated with the alleged source of the military leaks, Army Private Bradley Manning, to obtain information. If so, this could potentially make Assange a co-conspirator alongside Manning, who is currently being held in solitary confinement at a military prison in Quantico, Virginia, and is expected to face a military trial this spring. Assange vehemently denies any connection with Manning, pointing out that WikiLeaks's anonymous electronic "drop box" platform is designed to protect a leaker's identity. If in fact such a connection exists, however, the government still faces difficult questions with a conspiracy prosecution. To what extent, it will be asked, do traditional media reporters engage in similar "conspiracies" in attempting to elicit scoops from government sources?
THEFT OF GOVERNMENT PROPERTY According to the relevant portions of this statute, "Whoever . . . knowingly converts to his use, or without authority . . . conveys . . . any record . . . or thing of value of the United States," can be imprisoned for up to 10 years. Without any established link between Assange and Manning, a prosecution under this statute would be difficult, due to that pesky word "knowingly." The government would have to show that Assange knew the documents were stolen from the government, and that he was acting in violation of this law. On the other hand, it may or may not be difficult, given the nature of the documents, for jurors to conclude that it was obvious the documents were the product of a theft.