WASHINGTON — Even as some government officials contend that the release of thousands of classified documents by WikiLeaks founder Julian Assange jeopardizes U.S. national security, legal experts, Pentagon officials and Justice Department lawyers concede that any effort to prosecute him faces numerous hurdles.
Among them: Prosecutors apparently have had difficulty finding evidence that Assange ever communicated directly with Army Pfc. Bradley Manning, 23, an intelligence specialist who's thought to be the source of the documents, but is charged only with misusing and illegally downloading them.
Prosecutors declined to discuss what evidence they have in the Manning case, but three Pentagon officials who cautioned that their information is two months old told McClatchy this week that as of that time prosecutors had no evidence tying Manning to Assange.
The prosecution is now working under the theory that Manning, who was arrested in May in Iraq and is being held at the Marine Corps base at Quantico, Va., provided the information to an unnamed third party who then passed the information to WikiLeaks, according to the officials, who agreed to speak only on the condition of anonymity because the case is still under investigation.
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Manning, who faces as many as 54 years in prison on 10 charges, isn't cooperating with prosecutors, the officials said. His attorney, Maj. Thomas Hurley, didn't answer numerous calls seeking comment.
In addition, any potential Assange prosecution on charges that he intentionally threatened U.S. national security would be complicated because top national security leaders disagree about how damaging the leaks have been. Secretary of State Hillary Clinton said the release could put lives in danger, but Secretary of Defense Robert Gates last week called the reaction "overwrought."
Also unclear is what law would apply. The Justice Department would most likely charge Assange under one of two laws — the Espionage Act of 1917 or theft of government property, former prosecutors and experts agree.
Either charge would be unusual.
No journalist or publisher has ever been successfully prosecuted under the Espionage Act. As for theft of government property, that law was designed for actual things, not electronic information to which the government never lost access, experts say. .
"Whether that law can be extended to electronic information is a very open question," said Baruch Weiss, a litigation partner at Arnold & Porter, who specializes in white-collar and national security matters. Weiss is also a former federal prosecutor and served in the Treasury and Homeland Security departments.
Jeffrey Smith, also a partner at Arnold & Porter who served as the CIA's general counsel from 1995 to 1996, agreed.
"We are in an area where law is not clear," he said. "Technology and journalism are changing quickly. The law may not be keeping up but the government responsibility is the same."
To charge Assange under the Espionage Act, the government must prove that he knowingly acted in bad faith with the intent of harming the government and that his freedom to publish isn't protected under the First Amendment, which prohibits Congress from passing laws that restrict the freedom of the press.
The government is likely to argue that Assange knew he was threatening U.S. national security because State Department Legal Adviser Harold Hongju Koh sent Assange a letter Nov. 27 warning him that publishing thousands of diplomatic cables violated U.S. law.
But Weiss said that argument could be undermined by the fact that the State Department didn't respond to several requests from Assange to work out which documents threatened national security.
Proving harm to U.S. national security also would be challenging. The government would likely have to release additional classified information to prove its case, Weiss said. And in an opinion column published in The Washington Post, Weiss wrote that Assange's "defense would argue vigorously that prior assessments of harm due to leaks have proven over time to be wrong."
Such a prosecution also would hinge on a finding that Assange isn't a journalist. But the courts have never explicitly defined what makes someone a journalist and the government has refrained from charging journalists in cases involving the leaking of documents.
A Congressional Research Service report on how the government could prosecute Assange noted that the courts have found that "although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected."
Despite the obstacles, Smith, the former CIA general counsel, thinks the United States must prosecute.
The volume of documents makes it likely the government can find at least one example that proves Assange damaged national security, he said. He said the fact that WikiLeaks solicits those with classified information to provide it to the Web site shows an effort to harm national security.
"The U.S. government — I just don't see throwing up their hands and saying there is nothing we can do," Smith said.