The fight against WikiLeaks

By Yvette Walker on February 10, 2012

According to several sources, WikiLeaks published its first leaked documents in 2006. But they began to face criminal prosecution in 2010, around the time of the leaked diplomatic cables.

The U.S. Justice Department opened a criminal probe of WikiLeaks and founder Julian Assange. The New York Times reported that the department was considering charges under the Espionage Act, a move which former prosecutors characterised as “difficult” because of First Amendment protections for the press.

“Calls to prosecute the founder of WikiLeaks, Julian Assange, mounted this week as his organization began releasing documents from a cache of 250,000 State Department cables — its third major disclosure of United States government secrets this year.”

The Espionage Act:  One of the most controversial laws ever passed in the United States, the Espionage Act of 1917 (ch. 30, tit. I § 3, 40 Stat. 217, 219), and an amendment to it passed in 1918 sometimes referred to as the Sedition Act, were an attempt to deal with the climate created in the country by World War I. While most of the Espionage Act was straightforward and non-controversial, parts of this legislation curtailed Freedom of Speech in such a way as to draw an outcry from civil libertarians. It resulted in several important U.S. Supreme Court decisions regarding freedom of speech that continue to be studied. — Free Legal Dictionary

There are some difficulties in prosecuting Assange. WikiLeaks has no headquarters, and the Times notes that that makes a difference:

“There are other legal impediments. It is not clear where Mr. Assange is, and extradition may be difficult. An extradition treaty with Britain, for example, gives British judges the authority to reject an extradition request for “political” charges.

Moreover, Mr. Assange is an Australian citizen. Still, Mr. Holder said Monday that he did not believe that Mr. Assange’s citizenship or location was a barrier to prosecution.

“To the extent there are gaps in our laws, we will move to close those gaps, which is not to say that anybody at this point, because of their citizenship or their residence, is not a target or a subject of an investigation,” he said.”

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