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Why prosecuting WikiLeaks' Julian Assange won't be easy

Holder may feel emboldened to move against WikiLeaks because it does not have the look or feel of traditional news media. Still, Assange can rely on the courts to be vigilant in protecting his First Amendment rights and affording him the same protection that traditional media enjoy.

The fact that classified information is involved does not preclude First Amendment safeguards. In the AIPAC case, Judge Ellis rejected the prosecutors' categorical - and dangerous - argument that when classified information is at issue, the First Amendment affords no protection. Of course, the First Amendment is no license to disclose the recipe for the plutonium bomb to Osama bin Laden. But the Justice Department would have to prove that Assange's disclosures were so dangerous to national security as to override the First Amendment. In the words of Justice Oliver Wendell Holmes Jr., the prosecution would have to demonstrate that what the defendant did was as immediate and as dangerous as "falsely shouting fire in a theater." That is a heavy burden to meet.

More secrets would have to be disclosed at trial.

It is very difficult to prosecute a leak without disclosing additional classified information in the process. After all, how does the government convince a jury that releasing a cable's contents damaged national security? By calling an expert witness who tells the jury what information we were getting from a specific foreign government before the disclosure and what happened after the disclosure. Imagine the government spending $1,000 to investigate internal waste of $100 - it might prevent future waste, but the cost-benefit analysis is far from obvious.

The damage is hard to assess.

In some instances, secrecy is clearly vital and disclosure harmful. That is particularly true in the military sphere, but it holds for foreign policy as well. Indeed, the State cables themselves talk about how previous publicity caused the Pakistanis to drag their feet on a plan to remove highly enriched uranium from an aging reactor. But in a prosecution of Assange, his defense would argue vigorously that prior assessments of harm due to leaks have proven over time to be wrong.

In 1971, Solicitor General Erwin Griswold asked the Supreme Court to bar publication of the Pentagon Papers because it would cause a "grave and immediate danger to the security of the United States." Twenty-eight years later, he reversed his position in an op-ed piece in this paper. "I have never seen any trace of a threat to the national security from the publication" of the Pentagon Papers, Griswold wrote. Moreover, he expressed the view that "there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past."

What took 28 years to happen with the Pentagon Papers is already happening with the WikiLeaks cables. Although the State Department is of the opinion that Assange's leaks have done serious damage to our national security - Secretary of State Hillary Rodham Clinton has called them "an attack on America" responsible for "endangering innocent people" and "sabotaging the peaceful relations between nations" - Defense Secretary Robert M. Gates, a savvy Washington veteran, has expressed a different view.

"I've heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer and so on," Gates told reporters at the Pentagon last week. "I think those descriptions are fairly significantly overwrought. . . . Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest."

If Assange is ultimately charged with disclosing information that is potentially damaging to national security, Eric Holder now knows who Assange will call as his first witness: the secretary of defense.

Baruch Weiss, a litigation partner at Arnold & Porter, specializes in white-collar and national security matters. He is a former federal prosecutor and served in the Treasury and Homeland Security departments.

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