December 10, 2010, 9:47 AM — Any attempt to criminally prosecute WikiLeaks founder Julian Assange for the ongoing disclosure of classified State Department cables will pose huge challenges for the U.S. government, according to a newly updated report by the Congressional Research Service (CRS).
The 24-page report, released this week, examines the criminal statutes involved in the WikiLeaks case and how they might apply outside the U.S. The report concludes that at least some of the information released by WikiLeaks has national security implications and may indeed by covered under the Espionage Act and other criminal laws on the books.
Even so, actually prosecuting Assange for the disclosures would be unprecedented -- and challenging, the report said.
"We are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it," the report bluntly stated. Such an action would have First Amendment implications, and political ramifications "based on concerns about government censorship."
In addition, prosecuting a foreign national whose actions were conducted entirely overseas carries with it certain foreign policy implications and would raise questions related to extraterritorial jurisdiction, the CRS said in its report.
Details of the report were published Wednesday by Steven Aftergood on Secrecy News , a blog run by the FAS Project on Government Secrecy. The blog also posted a link to the CRS report ( download PDF ).
The report comes amid continuing debate about the legal options available to the federal government to hold Assange accountable for the leaks. Some U.S. lawmakers, notably Sen. Joseph Lieberman (I.-Conn) and Sen. Dianne Feinstein (D-Calif.), want Assange prosecuted under the Espionage Act of 1917.
In an opinion piece in the Wall Street Journal on Tuesday, Feinstein said that Assange should be "vigorously prosecuted" for espionage. Feinstein's column quoted an earlier report by the CRS in October that said the government had ample authority to prosecute anyone who actively disseminated information with the intent to damage national security.
"Both elements exist in this case," Feinstein wrote. "The "damage to national security" is beyond question. As for intent, Mr. Assange's own words paint a damning picture."