WikiLeaks Prosecution Faces Hurdles

Thursday, 02 Dec 2010 11:43 AM

By Ronald Kessler

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WikiLeaks founder Julian Assange can be prosecuted in this country for espionage, but he may never be brought back to the United States to face the charges.

That’s the judgment of John L. Martin, arguably the country’s foremost expert on the subject.

For 25 years, Martin was in charge of espionage prosecutions by the Justice Department. By the time he retired in August 1997, Martin had supervised the prosecution of 76 spies. Only one of the prosecutions resulted in an acquittal.

Attorney General Eric Holder Jr. has said the Justice Department has an “active, ongoing criminal investigation” of Assange, who is in hiding, over his apparent release of classified documents.

While Assange could be indicted, “as long as he stays out of the United States, we don’t have any jurisdiction over him,” Martin tells Newsmax. “Moreover, because espionage is considered under international law to be a political offense, extradition treaties do not cover those accused of violating the espionage laws of any country.”

A major reason is that espionage laws could be applied to foreign intelligence officers who are under nonofficial cover and therefore have no diplomatic immunity from prosecution. In addition, a country such as Great Britain has an Official Secrets Act that would apply espionage laws to publishing material that other countries may not consider major breaches of security.

As a result, countries are wary of supporting such laws by honoring extradition requests.

“You would never want to put your people in jeopardy by sending an intelligence officer without diplomatic immunity back to that country to face trial for violating its espionage laws,” says Martin, who was an FBI agent before becoming the country’s chief spy prosecutor.

So, while Assange could be charged by the United States, “He would have to come into the United States voluntarily or by some ruse,” Martin says.

However, aside from any treaties, Martin says a foreign country could decide to cooperate by putting him on a boat or airplane destined for this country under guard. That has happened in the past, Martin says.

While Assange would argue that he is a journalist and therefore exempt from espionage laws, those laws actually have no exception for journalists, editors, or publishers, Martin says.

“The espionage laws, believe it or not, do not make an exception for reporters,” Martin says. However, as a matter of policy, reporters and publishers have never been charged under espionage laws.

Martin says Assange could be charged under Section 793 of Title 18 of the U.S. Code, which prohibits unauthorized receipt, possession, or transmittal of classified documents, or under Section 798, which prohibits disclosure or publication of classified communications intelligence information.

Given that Assange has run hundreds of thousands of classified documents on his web site, each one that is properly classified could be included as a separate count of an indictment. As a result, he could face a mounting prison term equivalent to a sentence of life in prison upon conviction, Martin says.

The military arrested Private First Class Bradley Manning, suspected of being the source of the leaked documents, last May after WikiLeaks ran a video it had allegedly obtained from him. Taken by cameras on U.S. Apache helicopters, it shows several civilians, including two Reuters employees, being killed in a U.S. strike in Iraq in 2007.

In an online chat, the Iraq-based intelligence analyst boasted about making available such classified material to the world.

“Since Manning did not transmit these documents to an agent of a foreign power, the more serious espionage offense that carries life imprisonment or death would not apply,” Martin says.

However, “The military will be looking to indict Manning on multiple counts of violating Section 793 of Title 18 of the U.S. Code by passing national security information to an unauthorized person,” Martin says.

The government will have to establish that the documents it selects to be included in the prosecution “related to the national defense, that they were protected information, and that the disclosure of these documents to unauthorized persons could damage national security,” Martin says. “You don't have to prove actual damage, only the possibility that it could cause damage.”

The fact that Manning will face a military court martial gives the government an advantage, Martin says.

“It’s going to be a prosecution where classified documents are central to the government’s case, and in that situation a military judge may close the courtroom to the public to take classified testimony or when the documents are introduced into evidence,” Martin says. “You can’t close a public trial in a civilian courtroom.”

Another advantage in a military case is that each time a soldier commits a violation, he can be charged with violating general orders, a separate crime.

“There's no such offense in civilian court,” Martin says.

Since each properly classified document would represent a separate count, “Manning would face the possibility of 100 years or more in prison,” Martin says. “They could put him away for life if they do it right.”


Ronald Kessler is chief Washington correspondent of Newsmax.com. View his previous reports and get his dispatches sent to you free via e-mail. Go here now.



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