A debate is raging about whether WikiLeaks founder Julian Assange committed a
crime under United States law by publishing classified US government documents
on the Internet.
The case has led to calls for national secrecy laws to be tightened around the
world. Some legal experts cite a need for revisions to international law in
order to better protect confidential diplomatic communications in the age of
It has been nearly two weeks since US Attorney General Eric Holder announced
the Justice Department had launched a criminal probe.
"I condemn the action that WikiLeaks has taken," Holder said. "It puts at risk
our national security. But in a more concrete way, it puts at risk individuals
who are serving this country in a variety of
capacities, either as diplomats, as intelligence assets - puts at risks the
relationships we have with important allies around the world."
So far, no charges have been filed by the US Justice Department against Assange
or WikiLeaks for the deluge of documents the group has published online in
cooperation with major media outlets, suggesting gaps in the law make it
difficult to prosecute. Assange has been arrested on separate charges by the
British authorities and faces possible extradition to Sweden where he is
accused of rape and sexual molestation, which he denies.
Global legal war
Ben Saul, the co-director of the University of Sydney's Center for
International Law in Australia, says the lack of a US indictment suggests the
Justice Department does not have the evidence it needs to put Assange or
WikiLeaks on trial under existing US law.
Saul says that as a result, US officials appear to be waging a kind of "global
legal war" against Assange and WikiLeaks, which he says is aimed at
discrediting the group as an illegal, even "terrorist", organization.
"Some US politicians and commentators have even called for the assassination or
killing of Julian Assange. This is pretty extraordinary and lawless stuff,"
Saul says. "What this shows about the US's own conduct is that it is really
trying to discredit WikiLeaks by shifting the focus from wrongdoing by the
United States in places like Afghanistan, Iraq, spying on the United Nations
and so on - and instead, trying to focus all the legal attention, all the
attention on crime and illegality, to WikiLeaks."
United States Senator Joseph Lieberman has proposed legislation that would make
it easier for prosecutors to bring leakers to trial. Lieberman says WikiLeak's
dissemination of thousands of US State Department cables and other documents is
"just the latest example of how our national security interests, the interests
of our allies, and the safety of government employees and countless other
individuals are jeopardized by the illegal release of classified and sensitive
He says the legislation he has proposed would "help hold people criminally
accountable who endanger these sources of information that are vital to
protecting our national security interests".
Lieberman also has said he thinks WikiLeaks violated the US Espionage Act, a
law from 1917 that prohibits the unauthorized possession and dissemination of
information related to US national defense.
But Holder acknowledged this week that the Justice Department is looking at
"other statues, other tools" for a possible indictment against Assange because
of the difficulties in applying the Espionage Act to the WikiLeaks case.
Instead, officials say the Justice Department is considering other possible
offenses, such as conspiracy or trafficking in stolen property.
Larry Klayman, a former Justice Department prosecutor who founded the
government watchdog groups Judicial Watch and Freedom Watch, explains why it
would be difficult for Assange to be prosecuted under the Espionage Act or
existing antiterrorism legislation.
"The problem here is for the United States to prosecute Assange, and in most
other civilized countries, they have to show an intent," Klayman says. "A crime
has to be an intentional act, and if Assange did not intend in any way to harm
anyone's interests - and in fact, intended to further the interests of the
people of the United States and the rest of the world - that would be a
difficult point to try to prove by the United States, that he had an evil
motive here to further terrorism. That would be almost impossible to prove in
Klayman says the free press guarantees of the First Amendment of the US
constitution - including a long history of case law on the right to access
government documents of public interest - would make it difficult for the
Justice Department to convict Assange or any of the media outlets around the
world that have published leaked diplomatic cables received through WikiLeaks.
"What Assange has done and WikiLeaks has done and what the media does - The New
York Times does this all the time when they receive documents from the
government, even if those documents are stolen documents - they are inclined to
publish it," Klayman says. "That's why we have the First Amendment. That's why
the media is protected from criminal prosecution.
"In many ways, Assange and WikiLeaks have been serving as a media watchdog
releasing information. As long as he did not himself conspire, and WikiLeaks
did not conspire, to illegally remove documents from the possession, custody,
or control of the United States, Assange has committed no crime."
New convention needed
Other commentators, aware of those First Amendment protections under US law,
say the best strategy is for the US Justice Department to focus its
investigation on who within the US government provided the documents to
WikiLeaks in the first place.
The only international law regarding the protection of diplomatic cables is the
1961 Vienna Convention, a treaty that requires governments to protect
diplomatic information from other governments' embassies in their territory.
Saul says a new convention needs to be negotiated to create an international
rule that is relevant to information leaks in the Internet age.
"What I'm talking about," he says, "is protecting diplomatic information -
communications which are essential to the proper functioning of international
relations. We are not talking about a global rule to protect against the
disclosure of all kinds of national-military information or
national-intelligence information or national police or law-enforcement
information. It's a rule I'm proposing limited to that category of diplomatic
communication only, because if you don't protect those communications, the
global system of trust and diplomacy really begins to break down and that has
some pretty dire consequences for global stability and peace."
Klayman argues against a new international convention to protect diplomatic
communications, saying such a system is likely to be thwarted or abused by
despotic or totalitarian regimes to protect themselves against disclosure of
Saul says a new international treaty could alleviate that threat by allowing a
public interest exception.
"If you're going to create a rule designed to protect diplomatic communications
from disclosure," Saul says, "you need an exception to cover these cases where
some information which is truly in the public interest ought to be disclosable
and publishable. There shouldn't be any criminal penalty for such disclosures."
But which existing international court - if any - would have the jurisdiction
to rule on what is "in the public interest" remains an open question.