PM - How the US could charge Assange 16/12/2010 - http://www.abc.net.au/pm/content/2010/s3095264.htm

How the US could charge Assange

Mark Colvin reported this story on Thursday, December 16, 2010 18:30:00

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WikiLeaks founder Julian Assange remains in jail in London, while US Government lawyers try to work out what charges Washington might bring against him. -->

MARK COVIN: The Australian founder of WikiLeaks, Julian Assange remains in jail in London, and in the United States government lawyers are using the time to try to work out what to charge him with. The New York Times reports that they're looking for evidence of any collusion in his early contacts with an army intelligence analyst suspected of leaking the information.

John Bellinger was Legal Adviser of the Department of State during the Bush administration and now a partner with Arnold and Porter in Washington, DC. I asked him what Assange might eventually be charged with.

JOHN BELLINGER: I think our Justice Department is considering a variety of different criminal statutes under which Mr Assange could be charged, including the Espionage Act of 1917 which makes it a crime for a person of unauthorised access to information relating to the national defence to disclose it to persons not entitled to receive it.

I think they're also looking at possible charges under the Theft of Government Property Act and under statutes prohibiting unauthorised access to government computers.

MARK COLVIN: The one thing I know about the Espionage Act is that the poet ee. cummings was locked up for 3.5 months for saying in 1917 that he didn't hate the Germans. It's a pretty broad Act isn't it?

JOHN BELLINGER: It's a broad act and all of these statutes but particularly the Espionage Act can be technically very difficult to bring prosecutions under. I think that's probably one reason why we have not seen charges brought yet, at least publicly.

MARK COLVIN: But in the 20s they locked up a lot of people, mostly socialists, I think and unionists for quite long periods of time under the Espionage Act.

JOHN BELLINGER: Well I think what Mr Assange has done is probably orders of magnitude different from some of those cases. After all he's alleged to have accessed 250,000 classified cables and I think amongst those the government can find probably quite a large number of them that would show serious damage to the national security.

MARK COLVIN: But you say he's accessed them, we've all accessed a lot of them now. How will the United States be able to prove that he conspired to get them rather than just being given them?

JOHN BELLINGER: Well, as I understand it, that's what the government is looking at right now is to see whether he could be charged with conspiracy to gain access to these classified documents in addition to holding them and failing to return them to the government.

Now my successor as the legal adviser to the State Department wrote a very stern letter to Mr Assange and his lawyers about 10 days ago.

MARK COLVIN: I've got a copy of that. Was that sent with a particular purpose in mind? In other words, is having sent the letter something which would strengthen the United States' case if it comes to court?

JOHN BELLINGER: Yes, absolutely. What it does is it, one put Mr Assange on notice that disclosure of the information would be expected to cause injury to the United States as well as to individual human rights activists, bloggers, even journalists and, in addition, to ask him to return the information and Mr Assange's failure to return the stolen property, even after receiving a request from US government could be potentially an additional element of an offence under various criminal statutes.

MARK COLVIN: Richard Nixon didn't manage to jail Daniel Ellsberg for leaking the Pentagon Papers, why would the United States be more likely to succeed in the case of Julian Assange?

JOHN BELLINGER: Well these cases can be quite difficult to bring, leaked cases and unauthorised disclosure cases are admittedly quite difficult and I can expect that there would be a substantial legal battle both in a prosecution and also with respect to any extradition.

I do think that the major difference here is just the absolute magnitude of the information that Mr Assange has received and is making public and the damage caused by many of the cables. So in some of these prior cases there was less information or harder to show damage but again, these cases can be difficult to bring but this one does seem to have more serious consequences than the past cases.

MARK COLVIN: WikiLeaks seems to be some sort of collective; why prosecute its founder rather than everybody in it?

JOHN BELLINGER: These are difficult questions. I think certainly the US government is trying to avoid as best it can questions under our first amendment protecting freedom of the press.

MARK COLVIN: Which could arise if Mr Assange claims to be a journalist, as he does, and a publisher, as he does.

JOHN BELLINGER: He will no doubt raise those as a defence and certainly those issues would have to be litigated if he were brought back to the United States.

MARK COLVIN: And the first amendment which protects freedom of speech would come into play there?

JOHN BELLINGER: In cases like this in the past, although there has not been one of this magnitude in the past, certainly individuals have raised their first amendment rights and with Mr Assange, in particular, who has said that he is a journalist engaged in news gathering, I think we can certainly expect that he would raise those issue as a defence.

MARK COLVIN: We've discussed possible charges, what about the possibilities of extradition, either from Sweden or the UK?

JOHN BELLINGER: Well that may be potentially even harder. The government, US government is not yet brought charges or at least publicly but when, if and when they do perhaps the even harder battle would be the battle over his extradition from either Britain or Sweden.

The United States has well functioning extradition agreements with both Britain and Sweden. There's a relatively new Extradition Treaty between the US and the UK. On the other hand both of those treaties have got exception for political offences and I think we can certainly expect that Mr Assange's lawyers would argue that at least charges under the Espionage Act count as political offences. And certainly in the UK with respect to extraditions in recent years, we have seen the British bar kick up huge legal battles.

MARK COLVIN: There's a British hacker who was arrested in 2002, Gary McKinnon, for hacking into US military computers. He was arrested in 2002 as I say and he's still in Britain despite the US's best efforts to extradite him.

JOHN BELLINGER: Yes I'm very familiar with that case.

MARK COLVIN: Could that happen to Julian Assange?

JOHN BELLINGER: I think that could potentially take a very long time to litigate his extradition. Obviously in this case Mr Assange has got a number of individuals who are supporting his case as an example of freedom of expression.

On the other hand, the British government and governments around the world I think are likely to have little sympathy for what he's done because they see that if people like Mr Assange are allowed to act with impunity then soon we will be seeing the leaks of diplomatic cables from governments all around the world.

MARK COLVIN: Sure but these are two countries, Sweden and the UK, which have completely independent legal systems, it does sound as though it's going to be quite a long time before the United States can really get their hands on Julian Assange.

JOHN BELLINGER: I'm expecting that we would see a lengthy extradition battle in either country, assuming that the United States were to actually seek his extradition. As you point out, these past cases have resulted in legal battles that have gone on for years.

MARK COLVIN: John Bellinger who was the legal adviser of the US State Department during the Bush administration.

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