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US explores options to prosecute Assange

Some observers say Assange is protected by constitutional tenets of free speech – and some just want him dead

Interpol has added the WikiLeaks founder, Julian Assange, to its wanted list.
Interpol has added the WikiLeaks founder, Julian Assange, to its wanted list.

WASHINGTON // US officials are investigating whether Julian Assange, the founder of the whistle-blower website WikiLeaks, violated US law with the publication of some 250,000 secret diplomatic cables.

It is unclear, however, what legal recourse the US government has to prosecute Mr Assange and what the repercussions of such an investigation may be for the American constitution's tenets of freedom of speech and press.

At the centre of the government's legal efforts is the 1917 Espionage Act, a law that may have outlived its usefulness with Supreme Court rulings expanding press freedoms and protections under the first amendment.

Those are principles that must not be lost in the fight over the massive cable leak, said Dan Gillmor, the director of the Knight Center for Digital Media Entrepreneurship at Arizona State University.

"You'd have to ask, how would Bob Woodward's books be written?" Mr Gillmor said on Wednesday. Woodward is an investigative journalist for The Washington Post, whose work helped exposed the Watergate scandal.

"If the publisher is being charged with [espionage] - and Assange's operation is a publisher among other things - then they're not the ones who leaked it, they had it leaked to them. That would have pretty serious ramifications for [the government's] jurisdiction."

To prosecute regardless, said Mr Gillmor, "is pretty alarming stuff. Whatever anyone thinks of WikiLeaks, my personal view is that the first amendment is a pretty important thing. What he's doing is a form of journalism."

For the government to successfully prosecute Mr Assange under the Espionage Act, it must prove two things: that he had "unauthorised possession" to information that may harm the national defence, and that he published it or wilfully retained it after the government's request to have that information returned.

As a result, prosecuting Mr Assange might effectively undermine efforts to maintain control over its classified materials.

"How do you prove that a particular cable about secret negotiations with Russia was dangerous to national security?" Baruch Weiss, a former federal prosecutor, told the Washington Post this week.

"You have to disclose more classified information to explain to the jury the damage brought about by the disclosure".

That might not dissuade the administration.

"From what I have been reading, the implication that I'm seeing is that the government is looking for a way to charge this guy with espionage," said Mr Gillmor. "I don't see how they could do that without putting journalism itself at risk. I would hope they would not do it."

A further complication for the US administration is that, while it asserts that the latest batch of WikiLeaks revelations poses a direct security threat, it is going to have to be weighed against past promises to maintain and improve governmental transparency.

Early into his tenure as US president, Barack Obama vowed that he would conduct the public's business more openly than previous administrations.

"The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," Mr Obama said.

His words now have to confront the political realities of Mr Assange and WikiLeaks. Several US politicians have actively called for the administration to take action against the WikiLeaks founder, some going so far as to call for his execution.

Mike Huckabee, a Republican presidential hopeful, has taken the matter one step further and called for the government to put to death anyone convicted of releasing the information, a sentiment echoed by Sarah Palin, another Republican presidential contender.

"Whoever in our government leaked that information is guilty of treason, and I think anything less than execution is too kind a penalty," Mr Huckabee said on Wednesday. "They've put American lives at risk. They put relationships that will take decades to rebuild at risk. They knew full well that they were handling sensitive documents they were entrusted."

Mr Assange has recently been the subject of an Interpol warrant on unrelated charges of "rape, sexual molestation and unlawful coercion" in Sweden, and he is effectively on the run. But while Mr Assange's present location is unknown, the possible source of WikiLeaks' vast supply of information is not.

Bradley Manning, a low-ranking military intelligence analyst, who allegedly supplied classified documents on the wars in Afghanistan and Iraq, is believed to have provided WikiLeaks with the secret diplomatic cables. He is being held in military custody awaiting court martial.