Any attempt to criminally prosecute WikiLeaks founder Julian Assange for the ongoing disclosure of classified State Department cables will pose huge challenges for the U.S. government, according to a newly updated report by the Congressional Research Service (CRS).
The 24-page report, released this week, examines the criminal statutes involved in the WikiLeaks case and how they might apply outside the U.S. The report concludes that at least some of the information released by WikiLeaks has national security implications and may indeed by covered under the Espionage Act and other criminal laws on the books.
Even so, actually prosecuting Assange for the disclosures would be unprecedented -- and challenging, the report said.
"We are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it," the report bluntly stated. Such an action would have First Amendment implications, and political ramifications "based on concerns about government censorship."
In addition, prosecuting a foreign national whose actions were conducted entirely overseas carries with it certain foreign policy implications and would raise questions related to extraterritorial jurisdiction, the CRS said in its report.
The report comes amid continuing debate about the legal options available to the federal government to hold Assange accountable for the leaks. Some U.S. lawmakers, notably Sen. Joseph Lieberman (I.-Conn) and Sen. Dianne Feinstein (D-Calif.), want Assange prosecuted under the Espionage Act of 1917.
In an opinion piece in the Wall Street Journal on Tuesday, Feinstein said that Assange should be "vigorously prosecuted" for espionage. Feinstein's column quoted an earlier report by the CRS in October that said the government had ample authority to prosecute anyone who actively disseminated information with the intent to damage national security.
"Both elements exist in this case," Feinstein wrote. "The "damage to national security" is beyond question. As for intent, Mr. Assange's own words paint a damning picture."
The CRS report makes it clear that there is currently no one statute that "generally proscribes the acquisition or publication of diplomatic cables, although government employees who disclose such information without proper authorization" may be prosecuted.
But the report goes on to add that a "patchwork" of statutes exist that would apply to the information contained in the cables.
Among those laws is one relating to the willful retention, communication and transmission of classified information obtained through unauthorized computer access. Another statute covers the theft or conversion of government records for personal use or for the use of someone else.
The real question, though, is whether those statutes could be used to prosecute Assange, according to the report. Past prosecutions have always involved individuals who had access to classified information who then made it available to foreign agents. In some cases, foreign agents who illegally accessed classified information while in the U.S. have also been prosecuted.
But "leaks of classified information to the press have only rarely been punished as crimes," the CRS said.
Also, there is nothing in the language of the Espionage Act that suggests it can be used to prosecute foreign nationals outside the U.S. The Act has been used just once to prosecute individuals who did not hold a position of trust in the government.
That case involved two pro-Israeli lobbyists in Washington who received classified information from government workers who they knew were not authorized to disclose the information. That case, however, ended with the charges being dropped because of concerns that classified information would be revealed during trial.
Even if the Espionage Act could be used to prosecute Assange, extraditing him to the U.S. will pose a challenge because Assange's alleged crime could be viewed as a political offense for which no extradition is available.
The report, in conclusion said: "Whether the publication of national security information can be punished likely turns on the value of the information to the public weighed against the likelihood of identifiable harm to the national security, arguably a more difficult case for prosecutors to make."