By Mark Hosenball and Jeremy Pelofsky
WASHINGTON | Fri Dec 17, 2010 9:04pm EST
WASHINGTON (Reuters) – WikiLeaks’ founder Julian Assange’s crusade for greater official transparency could backfire by provoking a U.S. government crackdown on leaks that might entangle even journalists, legal experts warn.
Attorney General Eric Holder has said the Obama administration is examining whether criminal charges could be brought against Assange for helping make public hundreds of thousands of classified U.S. documents. Officials say one law under study is an espionage statute that has rarely been used against recipients of official leaks.
Lawmakers, including the leadership of the Senate Intelligence Committee, have said that if U.S. criminal law is too weak or antiquated to shut down WikiLeaks, legislation should be introduced to make such action easier.
Assange, an Australian computer expert whom Swedish authorities want to question over alleged sexual offenses, has angered the United States by releasing secret diplomatic cables and U.S. military reports on his website and teaming up with newspapers around the globe to amplify the impact of the disclosures.
He told reporters on Friday he was the target of an aggressive U.S. investigation and feared that extradition to the United States was “increasingly likely.”
Experts in espionage and freedom of information law say any U.S. crackdown on Assange and similar leak wholesalers or brokers would likely make it easier for the government to mount prosecutions against anyone who receives leaks of unauthorized information — most notably journalists.
“The consequences of (Assange’s) behavior for the American press could be stark and painful,” said Floyd Abrams, an expert on press freedom.
Assange may be a “weirdo, but I don’t see how he’s different from any other journalist,” said Victoria Toensing, a former senior Justice Department prosecutor and congressional intelligence expert.
She said that if the government tried to prosecute Assange for conspiring with others to violate the espionage law by suborning leakers, media organizations like The New York Times, which published the leaks, could face equal legal jeopardy.
Steven Aftergood, a campaigner against excessive government secrecy with the Federation of American Scientists, said any U.S. effort to prosecute Assange “threatens to lower the threshold for the prosecution of journalists covering national security. Journalists who routinely seek out classified information could be brought under the law.”
There has long been a tug of war between public officials’ desire to protect official secrets and the news media’s determination to expose the inner workings of government.
The media scored a major victory in 1971 when the U.S. Supreme Court, citing the First Amendment’s constitutional guarantee of press freedom, ruled the Nixon administration could not stop newspapers from publishing the Pentagon Papers, a highly classified study of the Vietnam War.
In the past, Congress has rejected efforts to tighten U.S. anti-leak laws through creation of an American equivalent of the Official Secrets Act, a British law that prosecutors have found difficult to use against leaks unrelated to serious espionage.
Past U.S. cases involving leaks of classified information have taken months if not years to investigate. Federal authorities have rarely if ever sought to bring charges against journalists or news organizations, although the Obama administration has launched at least one prosecution of a former official suspected of being a journalist’s source.
Building a U.S. case against Assange or anyone else connected to the leak of the classified information would take time. Justice Department officials have given no indication that charges against Assange or others are imminent.
Geoffrey Robertson, a lawyer for Assange, told Reuters on Friday he and other members of Assange’s legal team had “no knowledge whatsoever” about what actions U.S. investigators and prosecutors might be pursuing.
Former federal prosecutor Glen Donath said it was likely a grand jury had been impaneled to hear evidence but that it would take time for FBI investigators to collect the evidence and build a possible case.
“I think it’s highly likely that the government is pursuing evidence to try to prove Mr. Assange was an active collaborator or co-conspirator with (Private Bradley Manning, a soldier imprisoned on suspicion of leaking thousands of secret documents) and not just a passive recipient of all the leaked documents,” said Donath, now in private practice.