Does the US have a secret indictment against Assange?

His attorneys think so, and so does Toby Harnden of the Telegraph.  Certainly, the Obama administration has talked about charging him with something, if only after the third round of Wikileaks exposés proved significantly more embarrassing to the White House than the previous two.  But that’s hardly a secret, which would give the notion of a surprise indictment a wee hint of conspiracy-theory thinking:

So Julian Assange has been granted bail (in a hearing that was live-Tweeted) but Sweden has appealed and he is still in custody. Meanwhile, Assange’s British lawyer Mark Stephens reveals that a “secretly empanelled” grand jury has been meeting in Alexandria, Virginia to consider American charges against the Wikileaks founder.

What’s going on? It’s more than two weeks since Eric Holder, the US Attorney General, said that the Obama administration was “looking into”charges against Assange. What might these charges be? It’s laid outpretty well here by CNN’s legal analyst Jeffrey Toobin. The bottom line is, as Toobin says, that the First Amendment protection of free speech is not a defence against a crime and the unauthorised distribution of classified information is a crime.

The likelihood is, then, that the US authorities either have a sealed arrest warrant for Assange now or they will have one very soon. What’s happening is that the US wants to wait for the right moment and the right place with which to nab him. This is likely to become a hugely controversial transatlantic issue if, as seems likely, US espionage charges are brought and extradition is sought from either Britain or Sweden.

Why would the Department of Justice bother keeping an indictment secret?  It makes little sense.  If a grand jury has delivered an indictment, this would be the time to make it public.  The UK has custody of Assange and appear inclined to keep him under close watch.  If they were willing to deny bail for a no-charge warrant from Sweden, the court would almost certainly do the same for an espionage warrant from the US.

Furthermore, the announcement of an indictment wouldn’t exactly be a public-relations disaster for the administration, either.  While Wikileaks has been tremendously popular with the progressive base, it certainly hasn’t won the mainstream of America.  Sixty-eight percent of respondents in the WaPo/ABC poll believe that Assange has harmed the US, and 59% want Assange arrested.

The big question will be what charge to levy against Assange.  Espionage applies more to Bradley Manning than it does to Assange, although it’s still a possibility.  Dissemination of classified materials certainly applies and is a serious felony.  Media organizations will object, since more than a few of them have done the same thing, but arguably not as indiscriminately as Assange has in these releases.  And regardless of whether the crime is committed by a reporter or not, it’s still a crime, and the First Amendment doesn’t really apply, as Jeffrey Toobin explains at CNN:

Q: What is the likelihood the Department of Justice can pursue legal action against WikiLeaks, both in civil and/or criminal court? How?

A: There already is a criminal case against Manning, and I am certain there will be further charges against others, especially Assange. I would not be at all surprised if there was a sealed arrest warrant currently in existence against him. The question is whether the American authorities can find him and bring him back to the United States for trial. I think civil charges are less likely, given the peculiar nature of WikiLeaks as a corporation and Web site. There probably is not much to sue.

Q: If WikiLeaks can be defined as a disseminator of information — or a medium through which information is shared — isn’t it afforded the same constitutional protections as the New York Times, CNN and other news organizations?

A: WikiLeaks has the same First Amendment rights as any company or group of individuals. But the First Amendment is not a license to break the law — for WikiLeaks, the New York Times or anyone else.

If the DoJ is serious about indicting Assange on anything, they’d better do it soon, secret or not.