U.S. officials reportedly are hoping to capitalize on the arrest of WikiLeaks founder Julian Assange in London this week by having him extradited to this country for criminal prosecution. Based on what is known about WikiLeaks' release of hundreds of thousands of confidential documents, that would be a mistake.
Assange was jailed in Britain on Tuesday in connection with charges of sexual assault filed against him in Sweden. U.S. officials, meanwhile, are clearly eager to prosecute him for the leaks, if not under the 1917 Espionage Act then for other criminal charges, including receiving stolen property. Atty. Gen. Eric H. Holder Jr. said that a "very serious criminal investigation" is underway.
But there are potential legal problems with any prosecution. Equally important, punishing Assange for publishing leaked documents would upend an understanding, honored by both Democratic and Republican administrations, that laws against the release of classified information won't be enforced against the media.
Most speculation about a prosecution has focused on the Espionage Act. Some language in that law arguably could be applied to Assange. For example, it forbids anyone who has unauthorized possession of national defense information to communicate, deliver or transmit it to "any person not entitled to receive it."
But the same section requires that the person providing the information have reason to believe it "could be used to the injury of the United States or to the advantage of any foreign nation." Applying that language to Assange is a tricky business. He would no doubt argue — honestly — that his expectation was that release of the documents actually would serve U.S. interests by exposing official wrongdoing to the citizenry.
Prosecuting Assange for receiving stolen property also would be difficult. He could argue that he obtained not government records — the originals of which are still in the possession of the Pentagon and the State Department — but copies.
The most important argument against prosecuting Assange, however, is that doing so would undermine freedom of the press. Penalties have been imposed in the past on government employees who have leaked confidential information, but not on the reporters or editors who published it. Is Assange a journalist? Assuming that he received and published information rather than obtaining it on his own, the answer seems to us to be yes. In principle, we can't see a difference between WikiLeaks and one of the newspapers that published the information.
Governments and private citizens are free to excoriate Assange and to decline to assist his operation, as Amazon did in removing WikiLeaks from its servers. But, based on present knowledge, criminal prosecution would be an ominous overreaction.