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The US Government's Pursuit of WikiLeaks Could Be Its Undoing

by Peter Kirwan

This is about as good as it gets for the United States of America. Backed by the righteous anger of lawmakers and commentators, hundreds -- perhaps thousands -- of the nation's brightest brains are working toward the goal of making Julian Assange answer for his alleged crimes in a US court.

Those engaged in this effort should enjoy the thrill of the chase. If Assange is successfully extradited to the US, a sobering experience will follow. Prosecuting the founder of WikiLeaks could very easily turn into a nightmare. In formal terms, Julian Assange will be the man standing trial. But the participant with the most to lose will be the US government. Victory, if it arrives in any formal sense, will feel pyrrhic.

The US government's position is weak because it possesses relatively few reliable legal tools. Prosecuting Assange under The Espionage Act of 1917, America's version of Britain's Official Secrets Act, still looks like the best option.

Ranging far more widely than its title suggests, the Espionage Act criminalizes the communication of "information relating to the national defense", which "the possessor has reason to believe could be used to the injury of the United States." The act theoretically makes criminals of Julian Assange, the newspaper editors working with WikiLeaks and anyone who reads, or even Tweets, about the contents of a classified cable.

The law's sweeping nature has troubled judges for the best part of a century. As a result, administrations have become reluctant to deploy it.

A civilian *recipient* of classified data has never been convicted under this law. Nor has someone like Assange, who will claim to be protected by the First Amendment to the US Constitution, which protects freedom of speech and freedom of the press.

When the White House went after Daniel Ellsberg, who leaked the Pentagon Papers to The New York Times in 1971, it used The Espionage Act. But Assange's position isn't analogous to that of Ellsberg. Instead, it's closer to that of The New York Times, which published Ellsberg's documents. Even the Nixon administration held back from prosecuting The Times, preferring instead to injunct the newspaper while it pursued Ellsberg through the criminal courts.

The Nixon administration was trying to circumvent the First Amendment. Yet in order to prosecute Assange, the Obama administration may have to confront the First Amendment head on. It may be forced to argue that WikiLeaks isn't a media organization, but merely a web site, devoid of editorial functions, that publishes raw data.

The argument that only "established" media outlets can count on First Amendment protection is profoundly at odds with the reality of media production and consumption in the 21st century. Any prosecution on these grounds will provoke storms of criticism and ridicule.

Neither has Assange made this argument easy for prosecutors. WikiLeaks asked Washington for assistance with redacting the cables and met with a refusal. Yet when The New York Times asked the US government for advice on what to censor, it received suggestions. "The other news organizations supported these redactions," New York Times editor Bill Keller recently wrote in an online discussion. "WikiLeaks has indicated that it intends to do likewise. And as a matter of news interest, we will watch their website to see what they do."

If Assange has been sensible, WikiLeaks is exercising the same editorial judgments as the world's leading newspapers. It's instructive to listen to what Sylvie Kauffmann, executive editor of Le Monde (which also collaborated with WikiLeaks) has to say about this:

"Even the political classes [in France] recognized that the newspapers who had been working on these cables had behaved in a responsible way. They acknowledged that we had been doing our job of selecting the material in an expert way. There was a complete evolution of the public view."

The prospect of the editors of Der Spiegel, El Pais, the Guardian, Le Monde and The New York Times testifying about how they limited unacceptable side-effects should worry the White House. Perhaps Assange's defence team will also want to question US defence secretary Robert Gates about his claim that the damage inflicted by Cablegate has been " fairly modest". If this is the case, perhaps WikiLeaks and its collaborators were a good deal more responsible than critics suggest.

The US government could choose another route to court: it could prosecute WikiLeaks and the news organizations with which it collaborated. This option has been floated by Senator Joe Lieberman, the influential chairman of the Senate Homeland Security and Government Affairs Committee. It has also been described by Steve Vladeck, professor of law at American University, as "crossing a proverbial Rubicon that even the most secrecy-obsessed, First Amendment-indifferent administrations have consistently refused to attempt to bridge". The results would include a full-blown constitutional crisis.

Further risks lie in wait. Thanks to one of the best-known judge-led modifications of The Espionage Act, the US will also need to demonstrate, in the words of one prominent free speech lawyer, that Julian Assange possessed the "highest specific intent to do harm to the United States that you possibly can have".

This is easier said than done. Assange's defence team will argue that his target wasn't the US government per se, but its culture of secrecy and the way in which it conducts foreign wars. Moreover, WikiLeaks has published documents that have irritated many governments. It could be argued that Assange and his colleagues haven't singled out the US for special treatment.

How will the US government prove that WikiLeaks threatened national security? Dianne Feinstein, the Democrat who chairs the Senate Foreign Intelligence Committee, argues that this is "beyond question". But the US courts will require proof. As the former federal prosecutor Baruch Weiss noted recently, this raises difficulties: "You have to disclose more classified information to explain to the jury the damage brought about by the disclosure."

As a result, parts of any trial may be held in secret. Yet if this happens, the credibility of any prosecution will be diminished.

Much is being made of the possibility that Assange "solicited" 251,287 secret documents from Bradley Manning, a 22-year-old US Army private who was serving with the 2nd Brigade 10th Mountain Division in Baghdad before his arrest in June.

If Assange encouraged Manning, it might be easier to prosecute him. Yet the US government may also have encouraged the theft of secrets. As many as three million state employees may have access to SIPRNet, the "completely secure" database at the Department of Defense and State Department from which Manning is alleged to have stolen classified documents. Manning has disclosed how, while working in his office, he downloaded documents on to "a CD-RW labeled with something like 'Lady Gaga'". (To evade suspicion, Manning has said, he "listened and lip-synced to Lady Gaga's Telephone while exfiltratrating possibly the largest data spillage in American history".)

The White House finds itself in the position of a homeowner who has been burgled after leaving his front and back doors wide open. A jury may still convict the thief and those who received stolen goods. But public opinion is likely to marvel at the laxness with which the US government handled secret material that it now describes as so important.

Yet perhaps the biggest risk of all resides in the actions of the US government to date. Daniel Ellsberg leaked the Pentagon Papers, but didn't go to jail. The case was dismissed after evidence emerged of "prosecutorial misconduct". These efforts included an attempt to bribe the presiding judge. White House operatives were also dispatched to break into the offices of Ellsberg's doctor in an effort to steal medical records that could be used to discredit him.

It would beggar belief if the Obama administration sabotaged its case in such a crude fashion. Yet errors of judgement become a distinct possibility when the atmosphere gets this febrile.

Already, there are straws in the wind. Solicitors representing Assange in London have spoken of intimidating letters from the State Department and heavy-handed surveillance. In September, according to The New York Times, three laptops that Julian Assange checked into the hold of a nearly-empty flight from Stockholm to Berlin went missing. They have never been recovered.

Most of all, the courts will be interested in any evidence that the US government authorized denial of service attacks against WikiLeaks. US judges tend to take a dim view of extrajudicial attempts to restrain publication.

Sit back and add it all up: if the founder of WikiLeaks enters a US courtroom, his options will multiply. The government's will diminish. This looks like a classic ju-jitsu moment in which an underpowered defendant can turn the sheer body weight of a prosecutor to his advantage.

Putting Assange behind bars will merely make him a martyr. In 1918, Eugene Debs, the leader of the Socialist Party, was convicted under The Espionage Act and imprisoned. He promptly ran for president from his prison cell. Clearly, Assange cannot run for the White House. But he has a talent for dramatizing his context that cannot be underestimated.

Senator Joe Lieberman has floated the idea of prosecuting The New York Times as well as WikiLeaks. Lieberman should be careful what he wishes for. At this stage, the best possible result for the White House would be the failure of any attempt to extradite Julian Assange to the US.

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