Judiciary panel to take up Espionage Act, legal options against WikiLeaks

Lawmakers might be getting anxious to wrap up business before the holiday recess, but the House Judiciary panel is pulling the full committee together Thursday to delve into options to tackle the WikiLeaks scandal.

The Department of Justice and Attorney General Eric Holder are faced with difficult legal questions as they decide the best course of action to pursue against WikiLeaks founder Julian Assange even as the Capitol Hill drumbeat to charge the WikiLeaks founder under the Espionage Act grows louder.

The Judiciary Committee will be looking at the World War I-era Espionage Act and the "legal and constitutional issues raised by WikiLeaks," as directed by Chairman John Conyers (D-Mich.).

It will be the first congressional hearing on WikiLeaks since the Nov. 28 publication of thousands of classified diplomatic cables, some of which have proven embarrassing to the U.S. government because of their frank tone. The witness list was not yet available.

Incoming Judiciary Chairman Rep. Lamar Smith (R-Texas) also vowed to conduct hearings when he takes the gavel in the new Congress.

But the Justice Department is proceeding with caution: Most experts agree the case crosses into new legal territory where there is little certainty.

Assange surrendered Tuesday to police in London in relation to allegations he sexually assaulted two Swedish women this summer. He was refused bail and is awaiting a Dec. 14 court appearance. Assange has denied any wrongdoing and called the allegations a plot to stop WikiLeaks. He has vowed to fight extradition.


The same day of Assange's arrest Sen. Dianne Feinstein (D-Calif.) penned an op-ed arguing WikiLeaks had violated the Espionage Act by possessing or transmitting information that could endanger national security. The Act also makes it a felony not to return such information to the federal government. Feinstein's stance was echoed by Sens. Kit Bond (R-Mo.) and Joe Lieberman (I-Conn.)

However, no media organization has ever been prosecuted for publishing such information under the Act, and free speech advocates worry about the implications of doing so. The Electronic Frontier Foundation and the ACLU have both expressed skepticism about the constitutional validity of charging Assange with spying.

The Obama administration has responded by attempting to distinguish WikiLeaks from traditional media organizations, with several lawmakers also making the distinction between WikiLeaks and journalism. But Lieberman muddied the waters last week when he suggested The New York Times should possibly face prosecution for publishing some of the materials.

Lieberman acknowledged the First Amendment implications of prosecuting a news organization for publishing documents provided to it, but indicated preventing similar incidents in the future was more important. His comments set off a fresh wave of accusations of censorship, most notably from Russian Prime Minister Vladimir Putin, who accused the U.S. of hypocrisy and undemocratic behavior.

Putin's statements reflect not only Assange's arrest but also the news several firms including Amazon.com, Mastercard and Paypal cut off business ties to WikiLeaks last week in the face of pressure from the U.S. government. State Department spokesman P.J. Crowley denied the government had pressured Paypal on Thursday and took a swipe at those who consider WikiLeaks admirable.

"Some mistakenly applaud those responsible for leaking @StateDept cables, but there is nothing laudable about endangering innocent people," Crowley tweeted.

Lieberman also joined his colleagues in introducing a bill dubbed the SHIELD Act in both chambers that would make disclosing the names of confidential military or intelligence informants illegal. It is unclear if the bill would apply to materials already leaked if passed.

Otherwise the Justice Department and Holder might be forced to prove the connection between Assange and Pfc. Bradley Manning, who has been charged in connection with downloading classified materials. It is unclear whether the two ever communicated directly. DOJ would also have to prove Assange and WikiLeaks are not journalists, a difficult proposition given the lack of a clear definition of the term.

Regardless it appears there will be no swift resolution to the WikiLeaks saga, with the Justice Department indicating no charges against Assange are imminent. Assange appears destined to linger in British jail until the courts there decide whether to extradite him to Sweden to face a warrant for his arrest.