Could Julian Assange Be Prosecuted for the Afghan War Logs?

The U.S. government has accused Julian Assange, of the self-styled whistleblower website WikiLeaks, of endangering the lives of U.S. troops and their Afghan allies by publishing more than 75,000 classified documents related to the war in Afghanistan. "The battlefield consequences of the release of these documents are potentially severe and dangerous for our troops, our allies and Afghan partners, and may well damage our relationships and reputation in that key part of the world," Defense Secretary Robert Gates said Thursday. The New York Times  also reported that "Justice Department lawyers are exploring whether Assange and WikiLeaks could be charged with inducing, or conspiring in, violations of the Espionage Act." Do they have a case?

It depends on how Assange got his information. U.S. law defines espionage as transmitting classified national security information "with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation." The person who leaked the documents can almost certainly be prosecuted — attention is currently focused on Army Pfc. Bradley Manning, who is also alleged to have leaked a video of a U.S. helicopter attack earlier this year.

If WikiLeaks was actively involved in removing the documents from the Pentagon — hacking into a computer, for instance — there would likely be a clear cut criminal case against the organization. But if WikiLeaks merely received the documents from someone who broke the law in leaking them, the law is much less clear.

In 2006, a Federal Court ruled that employees of the American Israel Public Affairs Committee could be prosecuted for receiving and transmitting classified U.S. information to Israel, even though they did not themselves leak the information. But WikiLeaks is not a foreign lobbyist and courts have generally given media organizations — though it’s not clear whether the group qualifies — much more leeway.

In the most famous court case on this issue, 1971’s New York Times co. vs. United States
— better known as the Pentagon Papers case — the Supreme Court ruled that the U.S. government could not show a sufficient national-security interest to prevent the publication of documents illegally leaked to the newspaper by defense analyst Daniel Ellsberg. But the court left open whether publication could be blocked if a significant national-security interest could be demonstrated.

Gates believes that the leaks could harm U.S. relations with Pakistan and put Afghans who have worked with the U.S. in danger, but according to First Amendment expert Jack Balkin of Yale University, blocking publication "is justified only where absolutely necessary to prevent almost immediate and imminent disaster."This would be a much tougher case to make.
Assange has also argued that the importance of the documents outweighs the potential danger and would likely deny in court that he intended injury toward the United States. Which narrative is more convincing would be for a jury to decide.

Whether or not the government can make a case, it would be extremely difficult in practice to prosecute Assange in the United States. An Australian citizen, he has no fixed address and his servers are spread throughout the world — though there’s also some discussion of charging him in his home country.

In any case, any attempt to prosecute Assange would inevitably turn what is now a national-security issue into a free-speech battle, an argument that the publicity-hungry Assange is likely more than happy to have.

Thanks to Michael C. Dorf, professor of law at Cornell University, and Laura Handman, co-chair of the appellate practice at the law firm of Davis, Wright, Tremaine.