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U.S. government looking at ways to criminally charge Julian Assange

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December 9, 2010

The U.S. government said earlier this morning that it is looking at various ways to criminally charge Wikileaks founder Julian Assange for getting access to and then leaking sensitive documents that are only on a 'need to know basis' and making those documents publically available on the Web.

It also added that Assange could be in serious legal trouble for disclosing classified information because he is not a journalist.

When asked whether traditional media organizations that republish secret documents could be prosecuted, State Department spokesman Patrick Crowley said that the Obama administration applauds "the role of journalists in your daily pursuits. In our view, Mr. Assange is not a journalist, and that makes all the difference," Crowley added.

Crowley's remarks come as DoJ (Department of Justice) prosecutors and FBI agents are scrambling to piece together enough evidence to build a legal case against Assange, who was arrested yesterday in London on unrelated sexual charges filed in Sweden.

The U.S. government could then seek his extradition to the United States, which the U.K. Independent reported today has already been the topic of discussions between U.S. and Swedish officials.

"We have pledged that we will investigate this fully and we will pursue anyone that we feel has violated U.S. law. So I can't predict where that investigation will lead at this point," said Crowley.

Attorney General Eric Holder recently said that the legal investigation into WikiLeaks, which became public in July, is ongoing, and has escalated tremendously since Dec. 1st.

A group of U.S. politicians has been very vocal and critical in demanding that the Obama administration charge Assange under the U.S. Espionage Act. Last week, Rep. Peter King, the incoming Republican chairman of the House Homeland Security Committee, urged the administration to "criminally charge WikiLeaks activist Julian Assange" for conspiracy to disclose classified information.

Senator Dianne Feinstein (D-Calif.) and Kit Bond (R-Miss.) did the same and voiced the same concerns.

But this could very well be a Catch 22 Situation... The U.S. Espionage Act draws no distinction between traditional journalism and WikiLeaks-style informational activism. It merely makes it illegal to disclose "information relating to the national defense" as long as that information could be used "to the injury of the United States."

Still, the U.S. government isn't letting that one go away.

That means reporters and editors at The New York Times, which have published a subset of the documents, could in theory face criminal charges as well. And so could anyone operating one of the 1,289 mirror hosting sites that currently exist since Amazon's EC-2 unit stopped hosting the site last week.

The Pentagon previewed this argument a few months ago when arguing that "WikiLeaks's webpage constitutes a brazen solicitation to U.S. government officials, including our military, to actually break the law."

But Assange calls himself an "editor" and said before his arrest that political pressure to cut off WikiLeaks' funds and Web hosting "are dangerous moves towards a digital McCarthyism. These actions, and the others like it, are not the result of a legal process, but rather, are the result of fear of falling out of favor with Washington."

Nevertheless, because of the First Amendment's guarantee of a free press, no president, Republican or Democrat, has ever chosen to wield the U.S. Espionage Act against media organizations. And it isn't clear that the U.S. Supreme Court would allow such a prosecution to continue today either.

Which is why the Obama administration has been trying to draw a sharp distinction between WikiLeaks and traditional journalists -- who would be unlikely to post thousands of raw cables to the Internet and more likely to bow to pressure not to publish any sensitive documents.

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For example, the New York Times delayed its exposé of the Bush administration's warrantless wiretapping for over a year for the same reasons.

"I would not draw any parallel between WikiLeaks and The New York Times," Pentagon spokesman Geoff Morrell said last week on MS-NBC. "The New York Times has not posted for all the world, including our enemies, to mine, a database of un-redacted raw documents, classified information that they solicited to be stolen. That's just not the same."

Joseph Lieberman of Connecticut, the head of the Senate Homeland Security Committee, would remove the media's First Amendment shield completely, if he could. In an interview yesterday on Fox News, he suggested that news organizations should be prosecuted as well.

He said "To me, the New York Times has committed at least an act of bad citizenship. And whether they've committed a crime, I think that bears very intensive inquiry by the Justice Department. And, again, why do you prosecute crimes? Because if you don't, well, first you do because that's what our system of justice requires. Second, if you don't prosecute people who commit crimes, others are going to do it soon and again. And I'm afraid that's what's going to happen here. You can't let Assange and his people get away with this since others will follow in their tracks, literally duplicating similar documents and causing even more harm to the safety of the United States."

Another approach the Justice Department could take, which might be more likely to pass First Amendment muster: arguing that Assange, and anyone else deeply involved with WikiLeaks, is guilty of conspiracy by soliciting classified materials. That's something that journalists tend to shy away from doing.

Since WikiLeaks began releasing confidential U.S. State Department cables in November, at a pace that seems guaranteed to maximize the embarrassments for Washington, an increasing number of service providers have distanced themselves. The list includes, PayPal, Visa, MasterCard and EveryDNS.

Yesterday, the websites of both MasterCard and Visa were inaccessible at many times due to DoS (Denial of Service) attacks by some Wikileaks fans that want to protest the two credit card companies for cutting off WikiLeaks' founder Julian Assange's personal accounts.

"The issue appears to be the result of a concentrated effort to flood our corporate website with traffic and slow down its access," said MasterCard spokesman James Issokson, in a prepared statement. "We are working to restore normal service levels."

Issokson said the DoS attack didn't affect the use of credit cards or financial security, however, but just the public-facing websites. Representatives from Visa were not immediately available for comment, since the attacks happened after 5.00 PM EST. Mastercard's site was attacked earlier this morning at around 10.30 AM EST.

But Adam Levin, consumer credit and privacy expert for said that it's cause for alarm for credit card holders, who should "religiously monitor their accounts daily for signs of fraudulent activity, especially at this busy time of the year, both with physical store sales as well as online."

"In the real world, not one single account is fully and completely safe from economic terrorism," said Levin. "The sophistication level of hackers grows geometrically every single day."

Like MasterCard and PayPal, Visa Europe, a division of Visa International, also stopped accepting payments for WikiLeaks.

"Visa Europe has taken immediate and specific action to suspend Visa payment acceptance on WikiLeaks' website pending investigation into whether it contravenes Visa operating rules, including compliance with local laws in the markets where we operate," said Visa, in a prepared statement.

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Source: The U.S. Justice Department.

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