By Ellen Nakashima and Jerry Markon
Washington Post Staff Writers
Tuesday, November 30, 2010; 12:13 AM
Federal authorities are investigating whether WikiLeaks founder Julian Assange violated criminal laws in the group's release of government documents, including possible charges under the Espionage Act, sources familiar with the inquiry said Monday.
Attorney General Eric H. Holder Jr. said the Justice Department and Pentagon are conducting "an active, ongoing criminal investigation.'' Others familiar with the probe said the FBI is examining everyone who came into possession of the documents, including those who gave the materials to WikiLeaks and also the organization itself. No charges are imminent, the sources said, and it is unclear whether any will be brought.
Former prosecutors cautioned that prosecutions involving leaked classified information are difficult because the Espionage Act is a 1917 statute that preceded Supreme Court cases that expanded First Amendment protections. The government also would have to persuade another country to turn over Assange, who is outside the United States.
But the sources, who spoke on the condition of anonymity because the inquiry is rapidly unfolding, said charges could be filed under the act. The U.S. attorney's office in Alexandria - which in 2005 brought Espionage Act charges, now dropped, against two former pro-Israel lobbyists - is involved in the effort, the sources said.
The Pentagon is leading the investigation and it remains unclear whether any additional charges would be brought in the military or civilian justice systems. Pfc. Bradley Manning, an Army intelligence analyst suspected of being the source of the WikiLeaks documents, was arrested by the military this year.
Holder was asked Monday how the United States could prosecute Assange, who is an Australian citizen. "Let me be very clear," he replied. "It is not saber rattling.
"To the extent there are gaps in our laws," Holder continued, "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 that's ongoing." He did not indicate that Assange is being investigated for possible violations of the Espionage Act.
Although the Justice Department has taken the position that media organizations could be prosecuted for printing leaked classified information under the legislation, that prospect is unlikely because of official aversion to running afoul of the First Amendment, experts said. Indeed, the Justice Department has never brought such a case, they said.
"Whenever you're talking about a media organization, the department is going to look very closely to ensure that any prosecution doesn't undermine the valid First Amendment functioning of the press," said Kenneth Wainstein, former assistant attorney general in the national security division.
But when it comes to Assange, Jeffrey H. Smith, a former CIA general counsel, said: "I'm confident that the Justice Department is figuring out how to prosecute him."
Smith noted that State Department general counsel Harold H. Koh had sent a letter to Assange on Saturday urging him not to release the cables, to return all classified material and to destroy all classified records from WikiLeaks databases.
"That language is not only the right thing to do policy-wise but puts the government in a position to prosecute him," Smith said. Under the Espionage Act, anyone who has "unauthorized possession to information relating to the national defense" and has reason to believe it could harm the United States may be prosecuted if he publishes it or "willfully" retains it when the government has demanded its return, Smith said.
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."