WASHINGTON — Even as some government officials contend that the release of thousands of classified documents by WikiLeaks founder Julian Assange jeopardizes U.S. national security, legal experts, Pentagon officials and Justice Department lawyers concede any effort to prosecute him faces numerous hurdles.
Among them: Prosecutors apparently have had difficulty finding evidence that Assange ever communicated directly with Army Pfc. Bradley Manning, 23, an intelligence specialist who's widely thought to be the source of the documents, but is charged only with misusing and illegally downloading them.
Prosecutors declined to discuss what evidence they have in the Manning case, but three Pentagon officials who cautioned that their information is two months old told McClatchy this week that as of that time prosecutors had no evidence tying Manning to Assange.
The prosecution is now working under the theory that Manning, who was arrested in May in Iraq and is being held at the Marine Corps base at Quantico, Va., provided the information to an unnamed third party who then passed the information to WikiLeaks, according to the officials.
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Manning, who faces as many as 54 years in prison on 10 charges, isn't cooperating with prosecutors, the officials said. His attorney, Maj. Thomas Hurley, didn't answer numerous calls seeking comment.
In addition, any potential Assange prosecution on charges that he intentionally threatened U.S. national security would be complicated because top national security leaders disagree about how damaging the leaks have been. Secretary of State Hillary Clinton said the release could put lives in danger, but Secretary of Defense Robert Gates last week called the reaction "overwrought" in a briefing with reporters.
Also unclear is what law would apply. The Justice Department would most likely charge Assange under one of two laws — the Espionage Act of 1917 or theft of government property, former prosecutors and experts agree.
Either charge would be the first of its kind, however.
No journalist or publisher has ever been successfully prosecuted under the Espionage Act. "We are talking about creative legal territory," said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists and a regular critic of government secrecy policies.
As for theft of government property, that law was designed for actual things, not electronic information to which the government never lost access, experts point out. Throughout Manning's alleged downloading of the documents onto a CD, other government officials could still read the documents — an important difference, experts say, from taking hard copies out of a room to copy them.
"Whether that law can be extended to electronic information is a very open question," said Baruch Weiss, a litigation partner at Arnold & Porter, who specializes in white-collar and national security matters.