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US vs Assange

December 2, 2010

The pressure on WikiLeaks founder Julian Assange is mounting. Not only has he been put on Interpol's wanted list for alleged sex crimes in Sweden, but the US is mulling how to take legal action against him as well.

Julian Assange in November 2009 in Copenhagen
Julian Assange could face serious charges in the USImage: picture alliance/dpa

After Interpol went public on Wednesday with an alert calling for the arrest of the WikiLeaks founder in connection with allegations of sex offenses in Sweden, Assange is now wanted in the 188 countries that are members of the international police organization.

While the sex crimes alleged to have been committed by Assange are not connected to the current WikiLeaks document release of some 250,000 diplomatic cables, the US is investigating separately whether to prosecute Assange for publishing the classified files.

Calls for Washington to take action against Assange have been increasing ever since the massive data publication started on November 29, but the US government so far has not officially declared whether and how it will try to build a case against Assange and WikiLeaks.

WikiLeaks a terrorist organization?

Congressman Peter King, the incoming chairman of the influential Homeland Security Committee, went so far as to ask Secretary of State Hillary Clinton to investigate whether WikiLeaks could be designated a foreign terrorist organization (FTO), a move that would give US authorities greater leeway in going after the group.

However, legal experts interviewed by Deutsche Welle, don't believe this will be possible under US law.

"I think it doesn't work, even though there's a lot of venom now directed at WikiLeaks and at Assange personally," says William C. Banks, a law professor and director of the Institute for National Security and Counterterrorism at Syracuse University. "I think that the institutional makeup of the organization simply doesn't fit the profile of those designated as FTOs by the United States."

Jonathan Hafetz, a law professor at Seton Hall University in Newark who also serves as a lawyer for Guantanamo inmates, concurs that WikiLeaks can't be labeled a foreign terrorist organization under the statute.

The more likely legal basis for the US government to prosecute Assange, argue Hafetz and Banks, would be the so-called Espionage Act of 1917. Under the law, explains Banks, the US would have to prove three things: One, that he had unauthorized possession of information related to national security; two that he could bring harm to the US or aid an enemy; and three that he had willfully kept that information after the US demanded that he return it.

Strong case

Banks believes that Washington could fulfill all three requirements. "So as a legal matter, I believe they have a pretty strong case against Assange," says Banks. "I think that Assange is vulnerable under the act."

US Attorney General Eric Holder during a press conference in Hongkong in October 2010
US Attorney General Eric Holder is exploring legal options against AssangeImage: AP

Hafetz remains more skeptical: "There are a couple of potential obstacles there. The government would have to show that there was harm to national security which could force the government to divulge classified information."

What's more, adds Hafetz, trying WikiLeaks under the Espionage Act poses some "potentially very significant first amendment issues if WikiLeaks is defined as a media organization like a newspaper." The first amendment to the US Constitution guarantees freedom of speech and the freedom of the press.

First amendment issues

"I think there are some real first amendment and freedom of speech consequences and problems trying to prosecute WikiLeaks for publishing information," says Hafetz. "In fact, it's hard to draw the line. Why would they then not prosecute the New York Times or the other newspapers?"

Determining whether Assange and WikiLeaks do indeed enjoy first amendment rights and can be considered a media outlet would be a key question if it came to a trial. Of course to prosecute Assange, the US would also first have to get jurisdiction over him, meaning he would have to step foot on US soil or be extradited by another country, a process which could also be fraught with difficulties.

Regardless of whether the US ultimately decides to prosecute Assange, both experts emphasize that it is actually more important to plug the source of the leaks.

Plugging the whole

"The more responsible actions I think are to make the information that needs to be secure more secure," says Banks. "We need to reform our own secrecy laws so that not too much is made classified or secret, which is part of the problem here."

WikiLeaks data dump on its Internet site
The US should focus on preventing leaks from occuring in the first place, experts sayImage: dpa

The US, argues Banks, has always over-classified material. A lot of the information contained in the recent leaks "had no business being held closely in the first place."

In addition, we should reform "our own criminal laws so that we are not relying on a World War I relic to prosecute a contemporary crime," says Banks.

Trying to prevent leaks from happening in the first place is really what the US government should focus its energy on now, adds Hafetz.

"At the end of the day, even if WikiLeaks is prosecuted, it doesn't stop another organization from potentially publishing other documents."

Author: Michael Knigge
Editor: Rob Mudge