WikiLeaks

Correction appended: Dec. 9, 2010

So now that WikiLeaks founder Julian Assange has been rounded up in Britain on a warrant out of Sweden, where he's wanted for questioning in two sex assault cases, what would it take for the U.S. government to prosecute him for publishing — and disseminating to newspapers around the world — thousands of classified State Department cables? And what would it mean for freedom of speech and the press in America if it tried?

Those questions hovered over Washington this week after several members of Congress and the Obama Administration suggested that Assange should indeed face criminal prosecution for posting and disseminating to the media thousands of secret diplomatic cables containing candid—and often extremely embarrassing—assessments from American diplomats. Senate Minority Leader Mitch McConnell went so far as to label Assange a high-tech terrorist. "He has done enormous damage to our country and I think he needs to be prosecuted to the fullest extent of the law. And if that becomes a problem, we need to change the law," McConnell said on NBC's Meet the Press Sunday. Attorney General Eric Holder on Monday vowed to examine every statute possible to bring charges against Assange, including some that have never before been used to prosecute a publisher. And in the Senate, some members are already readying a bill that could lower the current legal threshold for when revealing state secrets is considered a crime.

But efforts in either direction will likely run into the same obstacle: The First Amendment. Thanks to nearly a century of cases dealing with the clash between national security and the freedom of the press, the Constitution provides enormous protection for publishers of state secrets. Those who leak the secrets in the first place — government officials, even soldiers, for instance — can and are prosecuted, such as Army private, Bradley Manning, now sitting in a military prison after having been charged with illegally downloading secret files amid suspicions that he gave them to WikiLeaks.

Putting someone like Assange in jail for publishing documents he did not himself steal, on the other hand, is exactly the kind of thing that First Amendment makes difficult. "From everything we've seen, [Manning] was merely responding to the notion that Assange might publish the cables," former CIA inspector general Frederick P. Hitz told TIME. "There's nothing to show that Assange played an active role in obtaining the information." He conceded that the leaks had been tremendously damaging, but added "I don't see any easy effort there" in pursuing charges.

Holder has said the government will explore whether Assange could be charged with a form of theft since the records had been stolen, though such a course is fraught will obstacles, given that the files are digital copies of government records. Holder said too the government will consider whether Assange might be guilty of conspiring somehow with Manning, or went beyond the traditional role of publisher by acting as a kind of broker in dissemenating the files to newspapers around the world. What worries famed First Amendment attorney Floyd Abrams is that if the government stretches to get around the Constitution to charge Assange, it may end up damaging the press freedoms enjoyed by every publisher. Nobody should applaud Assange, Abrams told TIME, but trying to remedy the harm he caused could easily leave the country worse off. "WikiLeaks may just be the price we pay for freedom of the press in this country," Abrams said.

Harvard professor of diplomacy R. Nicholas Burns, a former ambassador to NATO and Greece, said the damage from the cables has been enormous. "I think the leaking of these cables has been a travesty," Burns told TIME. "He has done great harm to our diplomacy, because it strikes at the heart of what diplomacy is: The building of trust between people and between governments. The leaks violate that trust and are going to make some people, not everyone or every government, but some people, much more reluctant to discuss their affairs with American diplomats."

But if WikiLeaks was wrong to publish the cables, what of the newspapers that also published the secret documents? After all, WikiLeaks gave the documents to the New York Times and a number of other papers around the world well in advance, and the newspapers have spent the past week publishing story after story related to their findings — and in some cases, have published the secret cables themselves. Sen. Joseph Lieberman of Connecticut, chairman of the Senate Homeland Security and Government Affairs Committee, told Fox News Tuesday that the Times, too, was suspect. "This is very sensitive stuff ... I certainly believe that WikiLeaks has violated the Espionage Act. But then what about news organizations that accepted it and distributed it? I know they say they deleted some of it and I am not here to make a final judgment on that, but to me The New York Times has committed at least an act of bad citizenship," he said. "Whether they've committed a crime, I think that bears a very intensive inquiry by the Justice Department."

But the law is too broad a brush to try to draw a distinction between WikiLeaks' indiscriminate posting of the cables — which Burns called "nihilistic" — and the more careful vetting evidenced by The New York Times, Abrams said. How do you draft a law that targets WikiLeaks but leaves intact our system of press freedoms? "It's very difficult to do," Abrams said. Besides, he said, "the courts have never required responsibility as a prerequisite to press freedom. That's never been the legal standard." In addition, claims that Assange has simply dumped the documents without reviewing them, much like a traditional editor would, have been disputed. Assange himself told TIME that each diplomatic cable his site has published has been vetted by his own team or by the editors of newspapers with whom he has shared the documents.

Lieberman wants the Senate to draft legislation that will lower the threshold for espionage prosecutions in the future. It wouldn't be the first time Congress has tried. A decade ago, Congress passed a bill that would have done just that, only to have President Clinton veto it just weeks before leaving office. That bill would have put America on footing similar to that of many other countries, including some other democracies. In the United Kingdom, New Zealand, Ireland and many other nations, publication of classified information is a crime simply because the material was secret. But not in this country. "There is no Official Secrets Act" here, Abrams points out.

The only real ammunition America has to protect state secrets, most legal observers agree, is the Espionage Act of 1917, signed into law by President Woodrow Wilson amid fears of domestic unrest and possible sabotage as American entered the First World War. It's a broadly worded act, still on the books, that on its face would make stealing or sharing secrets from the government a federal crime — if a jury agreed that doing so harmed America or aided a foreign power. But Abrams said courts soon recognized that such a broadly worded statute could "make illegal many things that American newspapers publish every day. It was over-broad and covered much too much material." As a result, the Supreme Court spent most of the 20th Century steadily narrowing the Espionage Act's reach when it comes to the news media's publication of secrets.

Some of the most famous cases from those years have almost eerie parallels to the current furor. In 1971, the Nixon Administration tried to stop the New York Times and Washington Post from running reports based on a highly classified secret history of the ongoing Vietnam War. The Supreme Court stopped the government in a 6-3 ruling in favor of the press. The so-called Pentagon Papers opinion was unsigned, and every justice wrote a separate opinion. In a widely cited concurrence, Justice Potter Stewart wrote that he agreed that publication of the secrets during an active war in Vietnam was damaging the U.S. But that wasn't enough, he concluded. "We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable harm to our Nation, or its people."

Stewart's conclusion that it's the President's responsibility, not the press's, to keep secret the nation's secrets — and to be judicious in deciding which are secrets worth keeping — could easily apply today. Hitz, too, sees old echoes in the current case. He deplores the documents' release, but said the very real damage they does not warrant prosecution in light of the First Amendment. "I am terribly concerned about it," he told TIME. "You have to have good information sharing among governments and among intelligence providers if you are going to prosecute this war on terrorism. And this is going to slow these efforts down as a matter of course. The disclosures are going to make (foreign intelligence agencies) more possessive with the information they have."

In fact, he said, Secretary of State Hillary Clinton and others are busy weakening the government's case. "American officials are working overtime to downplay the seriousness of the leaks. And as embarrassing as they are, that's not the standard (for prosecution)," he said.

Lieberman, for his part, said Holder ought to indict Assange, and let judges sort through any constitutional debris that ensues. But Abrams said that's a dangerous path. "I'd say the potential risks outweigh the benefits of prosecution. I think the instinct to prosecute is rational, and I do not mean to criticize the government for giving it serious consideration. But at the end of the day, I think it could do more harm to the national security, properly understood, than letting it go."

If Holder decides to push a case anyway, he may have more immediate obstacles to worry about. For now, Assange is well beyond American jurisdiction, and both Abrams and Hitz said European nations, even the friendliest ones, will look askance at any extradition request that looks to be political in nature.

Correction: The story has been amended to reflect the fact that Assange rejects claims that WikiLeaks has "indiscriminately" dumped documents on its site.