U.S. Dilemma: No Easy Way to Charge Assange

WASHINGTON - What did Attorney General Eric Holder mean when he said Monday that "there are other statutes, other tools that we have at our disposal," beyond the laws against espionage, that could be used to prosecute WikiLeaks founder Julian Assange?

For one thing, government officials say, the Justice Department is considering whether a federal law dealing with theft of government property would apply. Part of that statute makes it a crime to receive or keep property that's known to have been stolen. The law applies to anyone who receives it with intent to "convert to his own use or gain."

While that would seem to be a possible fit to the WikiLeaks case, the law has apparently never been used to prosecute anyone for receiving classified information.

It was used in 1984 to prosecute a US naval intelligence analyst, Samuel Morison, who gave top secret photographs of a Soviet aircraft carrier to a British publication, Jane's Defense Weekly. Only Morison was prosecuted, not the publication. He was sentenced to two years in prison.

And in 2001, a former analyst for the Drug Enforcement Administration, Jonathan Randal, was prosecuted under that same law for giving unclassified information to a London newspaper. Once again, the newspaper was not charged. Randal pleaded guilty and was sentenced to a year in prison.

Another federal law makes it a crime to retain classified information that was obtained by improperly accessing it on government computers. The law applies only to the person who actually gets it from a computer and does not directly criminalize retaining classified information that was obtained by someone else. But some legal experts think it could be used to charge someone who's an accessory after the fact.

That brings us back to the espionage laws, which the government clearly is considering.

One of the espionage statutes makes it a crime to receive national defense information if one knows it was obtained illegally and has reason to believe that it could be used "to the injury of the United States or to the advantage of any foreign nation." Some legal experts believe Assange may have tried to inoculate himself against this law when he asked in late November if the U.S. wanted any names blacked out of the most recent document dump.

But on Nov. 27, the State Department sent him a letter advising him that publishing further documents would "place at risk the lives of countless innocent individuals — from journalists to human rights activists and bloggers to soldiers to individuals providing information to further peace and security."

Publication would also, the letter said, place military operations at risk and jeopardize U.S. relations with other countries. The letter was clearly intended to defeat any subsequent argument by Assange that he had no idea the material could be used to injure the U.S.

It's worth noting that the letter, signed by Harold Koh, the State Department's legal adviser, also said that the diplomatic cables WikiLeaks was about to release were obtained illegally and that "as long as WikiLeaks holds such material, the violation of the law is ongoing." That incidates that some government lawyers have concluded that WikiLeaks is violating the espionage laws merely by retaining the cables.

The government faces a considerable obstacle with the espionage laws: They've never before been used to charge a recipient who publishes classified information.

But a senior Justice Department official says the government may be preparing to argue that it's not going after newspapers that actually publish the information in the traditional sense. It would instead claim that WikiLeaks is functioning as a kind of storehouse, gathering and maintaining the material in clear violation of the law.

And there's another obstacle. Before federal prosecutors could put Julian Assange on trial, they'd have to get him here. The U.S. has extradition treaties with several European countries, including Sweden. But some do not apply to crimes considered political. Assange's lawyers could argue that any U.S. prosecution was politically motivated. In any event, the extradition process can take months to work through the courts overseas.

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