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WikiLeaks founder could be charged under Espionage Act
But, said former federal prosecutor Baruch Weiss, that statute raises difficulties of its own. "How do you prove that a particular cable about secret negotiations with Russia was dangerous to national security? You have to disclose more classified information to explain to the jury the damage brought about by the disclosure," he said.
Perhaps the most significant issue is the Constitution's protection of people's right to speak freely and to exchange ideas.
"If the government were to prosecute the person who received and disseminated the classified information - as opposed to the individual who leaked it from within the government - mainstream media would express the concern that they could face prosecution for reporting information they routinely receive from government insiders," Wainstein said.
Fundamentally, Weiss said, the WikiLeaks case "is not about the disclosure of troop movements to al-Qaeda or giving the recipe for the plutonium bomb to North Korea. This is the widespread publication of information that is important in determining the future policy of the United States, that could be very important for people in assessing how well our government is doing its job. It's a good example of the problems created by the First Amendment clashing with criminal law, the law protecting national defense information."
All the experts agreed that it may be difficult for the United States to gain access to Assange, who apparently has avoided traveling to the country. Most nations' extradition treaties exempt crimes viewed as political. "I can imagine a lot of Western allies would view this not as a criminal act, but as a political act," said Weiss, who was on the legal team that defended the two former pro-Israel lobbyists.
Assange's legal pursuers are not confined to the United States. The International Criminal Police Organization issued an arrest warrant this month for Assange, who is wanted in Sweden on suspicion of rape and sexual harassment. Interpol, which is based in Lyon, France, said it had received the warrant from Swedish police, according to wire service and newspaper reports.
Assange has proclaimed his innocence and suggested the accusations are part of a U.S.-orchestrated smear campaign to undercut WikiLeaks' prestige.
In addition to vowing to hold WikiLeaks to account, the administration also instituted new measures to try to prevent leaks.
Office of Management and Budget Director Jacob J. Lew instructed government departments and agencies to ensure that users of classified information networks do not have broader access than is necessary to do their jobs, and to restrict the use of removable media such as CDs or flash drives on such networks.
OMB, the federal Information Security Oversight Office and the Office of the Director of National Intelligence will evaluate aid the agencies in their efforts to strengthen classified information security, Lew said.
The White House move in turn comes a day after the Pentagon announced similar steps to bolster network security following a review ordered by Defense Secretary Robert M. Gates in August.
"Protecting information critical to our nation's security is the responsibility of each individual who is granted access to classified information," Lew said in his memo. "Any unauthorized disclosure of classified information is a violation of our law and compromises our national security."
But lawmakers and national security experts have chided the administration for not moving long ago to shore up network security. The U.S. military has been investigating Manning for months because of suspicions that he passed large amounts of classified material to WikiLeaks.
"There's been a great deal of attention paid to this issue for a long time and a lot of work has been done," White House spokesman Tommy Vietor said. "It's an ongoing process."