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On Whether Julian Assange can be Brought to Justice

8:50 AM, Dec 8, 2010 • By DANIEL HALPER
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Gabriel Schoenfeld writes in today's Wall Street Journal:

As of Tuesday, WikiLeaks founder Julian Assange is in British custody on charges of having committed sex crimes in Sweden. Despite his arrest, WikiLeaks volunteers continue to release classified U.S. documents, and the U.S. Justice Department is still investigating whether publishing the secrets constitutes a crime. On that point, U.S. law presents significant hurdles--but they are not insurmountable.

Putting aside the extradition issues, the pertinent statute is the Espionage Act of 1917. That law makes it a crime to disclose information "relating to the national defense" to "any person not entitled to receive it." Mr. Assange has clearly done this. But the law further requires that the perpetrator acted with "reason to believe" that the secret information "could be used to the injury of the United States." Courts have interpreted this to mean that the disclosure must have been made with a "bad faith" purpose. Some contend that proving WikiLeaks' bad faith might be tricky.

Mr. Assange would undoubtedly claim in court, as he already has publicly, that cries of harm to U.S. national security are "fanciful." The attorney Baruch Weiss has suggested in the Washington Post that Mr. Assange could call as his first witness none other than Secretary of Defense Robert Gates. Mr. Gates has taken issue with those alarmed by the latest data dump, calling claims of damage "fairly significantly overwrought" because the revelations have only "modest" consequences for U.S. diplomacy.

Such words may help Mr. Assange, but  Mr. Gates would also be asked to testify about WikiLeaks' massive release of classified military field reports this past summer, including some containing the names of Afghan civilians cooperating with the United States. Back then Mr. Gates called the consequences "potentially severe and dangerous" for our troops and Afghan partners. With hundreds of thousands of secret documents to choose from, prosecutors should be able to demonstrate that Mr. Assange had ample "reason to believe" that his indiscriminate disclosures "could" injure the U.S.

Whole thing here.

Yesterday, Democratic senator Diane Feinstein argued, also in the Wall Street Journal, that Assange could be prosecuted under the Espionage Act of 1917.

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