Wikileaks founder Julian Assange and his crew have spent the past few months releasing classified material purloined from the American government. After the latest round of leaks began this weekend, the Obama administration suddenly discovered that there may be laws against that. The White House has engaged in a media blitz to assure Americans that they are right on top of those alleged crimes:
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.
Why is this round of leaks any different than previous leaks about the military? It seems that the release of the diplomatic cables, unlike the earlier releases which identified hundreds of informants in Afghanistan and exposed them to mortal danger, embarrasses Obama administration officials. Apparently it’s fine to blow military operations and the cover of those in a war zone who help the US, but when you make Hillary Clinton blush, well, look out.
Can the DoJ get an indictment? The axiom holds that a prosecutor can get a grand jury to indict a ham sandwich, but convictions are another matter. In this case, though, the indictment seems pretty straightforward. At least some of the material released by Wikileaks is covered by laws protecting classified information, and those laws have been upheld in the past against First Amendment challenges. On the other hand, Assange may have a defense against selective prosecution, since the US government never prosecuted newspapers and reporters in the US that published national-security secrets, most notably the New York Times and the Washington Post. In those cases, though, the papers didn’t publish the documents verbatim and kept the details — especially on personnel — out of print.
At least an indictment would start the ball rolling on arresting or capturing Assange and his Wikileaks team to stop any further damage to American security. Waiting until this moment to start pursuing an indictment is a demonstration of impotence and incompetency.