Legal Commentary

Goldsmith: Don?t Try to Try Assange

By Jonathan H. Adler

Jack Goldsmith argues that it would be a mistake for the United States to try and prosecute Wikileaks? Julian Assange.

The government should fully investigate how this major breach of national security occurred. But prosecuting Assange would be a mistake.

The first problem with going after Assange is that the effort is likely to fail. Extraditing Assange from England (where he is now) or Sweden (where he may go to face charges of sexual assault) would not be easy, especially since Assange?s actions might be deemed a ?political offense,? for which exceptions are made to extradition obligations.

Even if the U.S. government surmounts this hurdle, a criminal conviction is not assured. The most relevant law, the Espionage Act, is famously overbroad and thus an uncertain basis for prosecution. This is one reason the government has never successfully prosecuted a member of the media for soliciting or publishing classified information. Nor has the government ever successfully prosecuted a non-media organization for solicitation or receipt of classified information.

A failed attempt to prosecute Assange would be worse than not prosecuting him. It would make the United States look even more ineffectual than it does as a result of the leaks.

Goldsmith goes on to explain that a successful prosecution of Assange ? however unlikely ? could threaten press freedoms. It?s one thing to go after individuals who leak government secrets, but quite another to prosecute those who obtain such secrets and then distribute them further. Journalists solicit and distribute classified information all the time, but they should not be prosecuted for it (an argument I?ve made as well). Leaks of sensitive information can certainly harm national security, but they can also expose government wrong-doing. Federal efforts are better spent ferreting out and prosecuting leakers than going after the journalists, bloggers and internet troublemakers who disseminate leaked information further.

Full post as published by The Volokh Conspiracy on February 12, 2011 (boomark / email).