Lambasted as a "traitor" and "terrorist" in the United States, WikiLeaks founder Julian Assange is facing an all-out effort by US officials and politicians who want him tried and arrested. But experts say the path to prosecution is strewn with potential legal complications, including free speech protections under the First Amendment of the US constitution.
"Right now, believe me, at the Justice Department there are many lawyers that are going through all of potential statutes and trying to figure out which statute is going to be the best one to be able to prosecute him," said Bruce Zagaris, an expert on international law at Berliner, Corcoran and Rowe.
The United States officially opened a criminal investigation after WikiLeaks released tens of thousands of secret documents on US military operations in Afghanistan in July.
But now, after being embarrassed by a third massive document dump -- this time a quarter of a million US diplomatic cables, many with candid assessments of world leaders -- US officials are under intensifying pressure to act.
"To the extent that we can find anybody who was involved in the breaking of American law... they will be held responsible," Attorney General Eric Holder said Monday, hinting the United States may go after Assange himself. "To the extent there are gaps in our laws, we will move to close those gaps. It is not the case that anybody at this point, because of their citizenship or their residency, is not a target or the subject of an investigation." So far, though, only one person has been arrested in relation to the disclosures --a 23 year-old private, Bradley Manning, who was taken into custody in May after WikiLeaks released a video showing a 2007 US Apache helicopter strike in Baghdad in which journalists were killed.
Representative Peter King, the top Republican on the House Homeland Security Committee, has urged Holder to prosecute Assange for espionage and for the State Department to designate WikiLeaks a "foreign terrorist organization." Conservative icon Sarah Palin, a former Republican vice presidential candidate and potential White House contender in 2012, has called Assange "an anti-American operative with blood on his hands."
The main legal avenue to pursue potential suspects is considered to be the Espionage Act, which was passed in 1917, during World War I. The Espionage Act allows for prosecutions of anyone who "receives and obtains or agrees or attempts to receive or obtain for any person, or from any source whatever, any documents, writing... or note of anything connected with the national defense" without proper authorization. But the success of such a move remains unclear, according to Duke University law professor Scott Silliman.
"This might be difficult... unless you're able to show some motive on his part and that he actively solicited the information," he told The Wall Street Journal. Zagaris told AFP such an obstacle could be removed if prosecutors identify a few of the leaked documents that were officially classified.
But he rejected suggestions that 39-year-old Assange should face the death penalty for "treason." "In the EU, the death penalty prohibits extradition. It just makes it more complicated when politicians start calling for the death penalty. It makes it more legally and diplomatically difficult."
According to Zagaris, Assange may be arrested in the coming days or weeks in Britain through an Interpol arrest warrant issued as part of an investigation into rape allegations against him in Sweden.
Regardless of the legal justifications used to prosecute Assange, freedom of expression, a right enshrined in the First Amendment of the US Constitution, is likely to come into play. "The courts have made clear that the First Amendment protects independent third parties who publish classified information," said ACLU National Security Project director Hina Shamsi, warning the move could threaten investigative journalism.
"Prosecuting WikiLeaks would be no different from prosecuting the media outlets that also published classified documents." Senate Foreign Relations Committee chairman John Kerry said Tuesday the law should be changed. "We'll probably have to look at the potential of some kind of... tweaking of what the law says," he said.