A debate is raging about whether WikiLeaks founder Julian Assange committed a crime under U.S. law by publishing classified U.S. 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 the Internet.
It has been nearly two weeks since U.S. Attorney General Eric Holder Jr. 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 U.S. 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 Centre for International Law in Australia, says the lack of a U.S. indictment suggests the Justice Department does not have the evidence it needs to put Assange or WikiLeaks on trial under existing U.S. law.
Saul says that as a result, U.S. 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 U.S. 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 U.S.'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."
U.S. 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 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 information."
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 U.S. Espionage Act, a law from 1917 that prohibits the unauthorized possession and dissemination of information related to U.S. national defense.
But Holder acknowledged this week that the Justice Department is looking at "other statutes, 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 court."
Klayman says the free-press guarantees of the First Amendment of the U.S. 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 U.S. law, say the best strategy is for the U.S. Justice Department to focus its investigation on who within the U.S. 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 on Diplomatic Relations, a treaty which requires governments to protect diplomatic information of other governments' embassies on 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 crimes.
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.