The Espionage Act and other US laws could be used to prosecute WikiLeaks editor-in-chief Julian Assange, but there is no known precedent for prosecuting publishers in such a case, US congressional researchers have concluded.
The paper by the US Congressional Research Service said the laws have been used almost exclusively to prosecute individuals with access to classified information, who passed it to foreign spies, or the spies themselves.
“Leaks of classified information to the press have only rarely been punished as crimes and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it,” the report said.
The cautionary finding came amid reports that US prosecutors were trying to build a case against Assange, the 39-year-old Australian whose Web site obtained and has been making public a trove of 250,000 US diplomatic cables.
WikiLeaks is believed to have obtained the documents from a US Army private, Bradley Manning, although Assange asserted on Friday that he had never heard of Manning before his name appeared in the press and did not encourage him to take the documents.
Assange, who is free on bail in the UK while fighting extradition to Sweden for questioning in a sex case, said he had learned of rumors of an indictment against him in the US.
In an interview with ABC’s Good Morning America, Assange pointed to the Congressional Research Service report as concluding “it was very unlikely, under law, that we had engaged in any illegal activity.”
“And if it was alleged that our activity would be illegal, then, of course, the New York Times and all other mainstream media organizations would also suffer from that allegation,” he said.
However, the report found that there are a number of laws that could be used to prosecute Assange, including the Espionage Act and several other statutes that govern the release of classified documents.
“It seems that there is ample statutory authority for prosecuting individuals who elicit or disseminate most of the documents at issue, as long as the intent element can be satisfied and potential damage to national security can be demonstrated,” the report said.
The Espionage Act, which prohibits transmitting or receipt of defense information with a reasonable belief it would be used against the US or to the benefit of another country, does not specifically proscribe “publication,” it said.
However, the analysis said publishing such information in the media “could be construed as an ‘indirect’ transmission of such information to a foreign party, as long as the intent that the information reach said party can be demonstrated.”
Punishments under the Espionage Act range from 10 years in prison to the death penalty under certain circumstances, such as when the identity of a covert agent has been disclosed.
Yet another statute prohibits the retention, communication or transmission of classified information obtained by knowingly accessing a computer without authorization, with reason to believe it could injure the US or benefit another country.
It does not specify receipt of the information as a crime, but “criminal culpability might be asserted against persons who did not themselves access a government computer as conspirators, aiders and abettors or accessories,” the report said.
Another statute punishes the theft of government property or records for one’s own or someone else’s use with up to a year in prison.
“While this section does not explicitly prohibit disclosure of classified information, it has been used to prosecute ‘leakers,’” the report said.
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