This is about as good as it gets for the United States of America. Backed by the righteous anger of lawmakers and commentators, hundreds -- perhaps thousands -- of the nation's brightest brains are working toward the goal of making Julian Assange answer for his alleged crimes in a US court.
Those engaged in this effort should enjoy the thrill of the chase. If Assange is successfully extradited to the US, a sobering experience will follow. Prosecuting the founder of WikiLeaks could very easily turn into a nightmare. In formal terms, Julian Assange will be the man standing trial. But the participant with the most to lose will be the US government. Victory, if it arrives in any formal sense, will feel pyrrhic.
The US government's position is weak because it possesses relatively few reliable legal tools. Prosecuting Assange under The Espionage Act of 1917, America's version of Britain's Official Secrets Act, still looks like the best option.
Ranging far more widely than its title suggests, the Espionage Act criminalises the communication of "information relating to the national defense", which "the possessor has reason to believe could be used to the injury of the United States." The act theoretically makes criminals of Julian Assange, the newspaper editors working with WikiLeaks and anyone who reads, or even Tweets, about the contents of a classified cable.
The law's sweeping nature has troubled judges for the best part of a century. As a result, administrations have become reluctant to deploy it.
A civilian *recipient* of classified data has never been convicted under this law. Nor has someone like Assange, who will claim to be protected by the First Amendment to the US Constitution, which protects freedom of speech and freedom of the press.
When the White House went after Daniel Ellsberg, who leaked the Pentagon Papers to The New York Times in 1971, it used The Espionage Act. But Assange's position isn't analogous to that of Ellsberg. Instead, it's closer to that of The New York Times, which published Ellsberg's documents. Even the Nixon administration held back from prosecuting The Times, preferring instead to injunct the newspaper while it pursued Ellsberg through the criminal courts.
The Nixon administration was trying to circumvent the First Amendment. Yet in order to prosecute Assange, the Obama administration may have to confront the First Amendment head on. It may be forced to argue that WikiLeaks isn't a media organisation, but merely a web site, devoid of editorial functions, that publishes raw data.
The argument that only "established" media outlets can count on First Amendment protection is profoundly at odds with the reality of media production and consumption in the 21st century. Any prosecution on these grounds will provoke storms of criticism and ridicule...
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Peter Kirwan @'Wired'
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