According to a story by National Public Radio's Carrie Johnson, the U.S. Justice Department is looking into the Espionage Act of 1917, a rarely-invoked piece of legislation which made it unlawful to pass information to America's enemies during World War I. Her sources said it may be hard to make the changes stick:
Experts said that making a case against a government employee who promised to keep the nation's secrets is pretty easy from a legal standpoint. By contrast, Washington defense attorney Abbe Lowell said, prosecuting the website WikiLeaks is no slam dunk.So the issue, according to the defense lawyers Johnson spoke with, boils down to WikiMedia publisher Julian Assange's motives:
"The biggest taboo that has been out there, sort of the dirty little secret in the Espionage Act for a long time, has been whether it would ever be used to prosecute somebody in the media, as opposed to the government employee leaking the information,” Lowell said.
The dilemma, Lowell said, is whether WikiLeaks is a member of the media that warrants special free speech protections, or more like a rogue operation dedicated to hurting the U.S.
"What I worry about and what many worry about is that WikiLeaks makes it easy for the law enforcement community to apply this law for the first time, in a precedent-setting way, that can be used against other people in the media," Lowell said.
Scott Silliman, a law professor at Duke University, said any U.S. indictment of Assange requires close analysis.
"They have got to actually show that he came within the context of the Espionage Act," Silliman said. "And in my judgment, that's not an easy case to prove."
That's because Assange could argue that he made U.S. diplomatic cables public for a legitimate reason — to influence foreign policy — forcing prosecutors to demonstrate that he acted instead to help America's enemies.
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