An Indiana University law professor says a nearly 90-year old law could be used to prosecute people associated with WikiLeaks. But the likelihood that anyone outside the military is tried may be small.
The most likely source of prosecution may be violations of the Espionage Act, a 1917 law which prohibits possession and dissemination of sensitive government materials by those without the proper security clearance. The Army private accused of leaking the documents could be tried for multiple breaches of the law, said IU Maurer School of Law professor Fred Cate.
“The private is doomed in so many ways,” Cate said. “First of all, he’s a member of the military, therefore he’s subject to military justice to start with. Alternatively, he could be prosecuted in a civilian court, in which case, if it is proved that he took the documents out of the classified repository in which they existed, then he certainly is going to be found guilty of violating the Espionage Act.”
But Cate says it may be much harder to try WikiLeaks founder Julian Assange, in part because arresting him could prove difficult.
“There is absolutely no question that if the owner of WikiLeaks were in the U.S. jurisdiction, he could be successfully prosecuted under that law.” He said. “The hard question becomes ‘how do we get him?’ And as long as he stays in countries where we don’t have an agreement so that we can actually serve him with process and bring him into the jurisdiction, he is probably going to go scot-free for this.”
Cate said though the Espionage Act is nearly a century old, it has regularly been applied to electronic documents in recent years.