A reckoning of sorts is approaching for Julian Assange, the WikiLeaks founder who put hundreds of thousands of purloined U.S. military and diplomatic documents on the Internet.
On Nov. 2, Britain’s High Court rejected arguments by his lawyers that the 40-year-old Australian—once convicted of hacking—should not be extradited to Sweden, where he faces questioning for alleged sexual offenses.
Assange’s legal team in London has only about a week left to file an appeal with the same court to allow a new appeal to be heard by the country’s supreme court—but only by convincing the very judges who spurned his earlier arguments that a larger issue of public importance is at stake in extradition.
Meanwhile, his decentralized organization faces closure by early next year—not through legal action but as a result of financial organizations such as Visa, MasterCard and PayPal refusing since last December to process Web donations to keep WikiLeaks afloat.
“If WikiLeaks does not find a way to remove this [financial] blockade, we will simply not be able to continue by the turn of the new year,” Assange told reporters in London last month.
It’s a big come-down for Assange, who last year spurned U.S. government requests to not publish classified documents, and who seemed to revel in his newfound celebrity as self-appointed information crusader and whistle-blower.
But it still does not address the issue of holding Assange accountable for publishing stolen documents, the risk to the lives of those mentioned in the documents, and damage done.
WikiLeaks, a loose, clandestine collection of Internet activists, was founded by Assange in 2007 and gained recognition for releasing documents on issues such as falsified climate-change data and extrajudicial killings in Africa. Prominence, however, came when it put out “Collateral Murder,” a video showing a U.S. Army Apache helicopter in Iraq firing on suspected terrorists. Two of those killed in the firing turned out to be journalists.
That video, which went viral on the Internet, was soon followed by WikiLeaks’ the release of more than 300,000 military documents about the war in Iraq, more than 70,000 documents from the war in Afghanistan, and then hundreds of thousands of diplomatic cables between the State Department and its embassies and consulates.
Many of the documents—which contained the identities of people cooperating with U.S. troops and diplomats—were not redacted, leaving the people mentioned open to possible retaliation by terrorists and home governments.
WikiLeaks published those documents from sites located outside the United States.
The source of the leaked documents was allegedly a disgruntled U.S. Army soldier, Pfc. Bradley Manning, who was serving in as an intelligence analyst in Iraq.
Manning is now detained in the United States and faces court martial. He is central to any U.S. prosecution of Assange, which would come under the Espionage Act or under federal statutes governing conspiracy.
“I think that the espionage claim against a non-American person [Assange] for stealing secrets and publishing them overseas is hard,” said Paul Rosenzweig, a lawyer who helped craft policy and strategy as a senior Homeland Security Department official.
“[And] the extraterritorial application of U.S. law is always dicey because that means other countries can apply their law extraterritorially as well. It would set a precedent.”
The Espionage Act of 1917 is seen as both sweeping and vague, and the government would need to show Assange had “reason to believe [the information published] could be used to the injury of the United States or to the advantage of any foreign nation.”
Espionage is a political crime, and both Britain and Sweden, which have long histories of granting political asylum, would need to be persuaded to hand Assange over to the United States if it actually calls for his extradition.
Assange, who bills himself as a journalist, also could contest charges using as his defense the First Amendment to the Constitution, which governs freedom of speech and publication.
“Our position of course is that we don’t believe it [the Espionage Act] applies to Mr. Assange, and that in any event he’s entitled to First Amendment protection as publisher of WikiLeaks, and any prosecution under the Espionage Act would, in my view, be unconstitutional, and puts at risk all media organizations in the U.S,” said Jennifer Robinson, a member of Assange’s legal team in Britain.
The second path would be to charge Assange with criminal conspiracy. Manning, in purported e-mails to an Internet contact in the United States, said he knew and had been in contact with Assange. That contact was Adrian Lamo, a former hacker who had been profiled in on an Internet news site.
Lamo, who said Manning confessed to him about leaking the classified U.S. documents to WikiLeaks, is the one who went to U.S. authorities about Manning.
Assange denies he himself had had any contact with Manning.
“I had never heard of the name of Bradley Manning before it was published in the press,” Assange has said.
Communication, in itself, would probably not be enough, experts have said. There would have to be evidence of inducement or facilitation being given Manning.
A federal grand jury in Virginia has reportedly been investigating Assange and WikiLeaks and has called witnesses. Information about the secret proceedings has not been made public. News reports, however, have indicated that as part of its investigation it is looking into the Twitter accounts of those allegedly connected to WikiLeaks and Assange, among them a U.S. a computer expert, a Dutch hacker, and a member of Iceland’s parliament.
The New York Times reported that a federal judge has ruled Twitter must disclose the account information of the the three.
U.S. lawyer and Harvard Law School Prof. Alan Dershowitz, in a tweeted news release earlier this year, said he had been contacted to do work in the United States on behalf of Assange, but he is now not commenting any further.
Speculation that an indictment of Assange could soon be issued appear to be just that—speculation.
“It’s clear that Sweden has first dibs on him,” said Rosenzweig. “They have already secured an extradition order. Any American effort would have to trail that.”
If Swedish prosecutors find there is evidence to support claims by two Swedish women that Assange last year coerced them sexually, he would face trial—a matter that would likely put any U.S. intentions of prosecution on hold.
Assange has dismissed the women’s allegations as false, and insinuated they are part of a political plot to punish him for the leaking of the classified U.S. documents.
U.S Attorney General Eric Holder has insisted the U.S. has no intention of dropping the Assange matter, bu that remains to be seen.