Not long after WikiLeaks entered the international lexicon, the question became not whether the United States government would prosecute founder Julian Assange, but how.
The 39-year-old Australian is deemed the chief architect behind the release of troves of government secrets worldwide, including nearly 750,000 classified Pentagon and State Department documents to date. To some, he's a journalist; to others, an anarchist; to still others, a terrorist. While Assange faces legal trouble across the Atlantic — two Swedish women have accused him of sexual misconduct, and he's now under house arrest in England awaiting extradition proceedings — US prosecutors are reportedly combing the statute books, looking for a way to give Assange yet another label: federal prisoner.
Speculation concerning a criminal inquiry has focused on the Espionage Act, a 1917 statute enacted to blunt criticism of US entry into World War I, but later adapted to protect against dissemination of state secrets. It's not a slam-dunk case against Assange, most agree, in part because of arguable First Amendment protections accorded journalists. But through a combination of breadth and vagueness, federal laws provide an arsenal for prosecutors to pursue Assange — and almost any other muckraker using pen or pixel.
PRESS AND PRECEDENTS
It's impossible to deny the impact of Wikileaks's now-ubiquitous whistle-blowing platform. Consider the groundbreaking reports and documents released by WikiLeaks in just the past 10 months: in April, a video depicting US military forces killing two Reuters journalists and nine Iraqis in 2007; in October, Pentagon files detailing abuse of Iraqi prisoners by US and Iraqi forces, as well as 15,000 previously unreported civilian deaths; and since November, a steady stream of US diplomatic cables, dealing with subjects like Iran's nuclear program and alleged CIA torture.
Naturally, this watershed year for government transparency hasn't sat well with those at the top. US Attorney General Eric Holder, announcing the criminal investigation November 29, promised that this was no mere Department of Justice "saber-rattling."
Though hardly the only option, the Espionage Act is perhaps the most obvious for prosecutors. It prohibits anyone from gathering, transmitting, or receiving defense information, if they have reason to believe that the information could be used against the United States, or to the benefit of a foreign country.
Reporters and lawyers commonly assume that media reporting truthful information are immune to Espionage Act prosecutions. Yet that principle has not been tested in court. Every time it looked as though it might be, the media has narrowly missed prosecution.
The early days of World War II for example, held a close call for media prosecutions. Shortly after the American victory in the Battle of Midway, the Chicago Tribune — an isolationist newspaper opposed to President Franklin D. Roosevelt's successful effort to enter the war — reported that information about the Japanese naval forces had been "well known in American naval circles several days before the battle began." Roosevelt, realizing that this was a tip-off that the Americans had broken Japanese naval codes, was ready to indict the paper for espionage. The administration reversed course only after realizing that the Japanese high command apparently missed reading the Trib that day. Rather than risk a public prosecution that might tip them off, the DOJ spared the press a potentially devastating legal precedent.