U.S. Dilemma: No Easy Way To Charge Assange
What did U.S. Attorney General Eric Holder mean when he said Monday that "there are other statutes, other tools that we have at our disposal," beyond the laws against espionage, that could be used to prosecute WikiLeaks founder Julian Assange?
For one thing, government officials say, the Justice Department is considering whether a federal law dealing with theft of government property would apply. Part of that statute makes it a crime to receive or keep property that's known to have been stolen. The law applies to anyone who receives it with intent to "convert to his own use or gain."
While that would seem to be a possible fit to the WikiLeaks case, the law has apparently never been used to prosecute anyone for receiving classified information.
It was used in 1984 to prosecute a US naval intelligence analyst, Samuel Morison, who gave top secret photographs of a Soviet aircraft carrier to a British publication, Jane's Defense Weekly. Only Morison was prosecuted, not the publication. He was sentenced to two years in prison.
And in 2001, a former analyst for the Drug Enforcement Administration, Jonathan Randal, was prosecuted under that same law for giving unclassified information to a London newspaper. Once again, the newspaper was not charged. Randal pleaded guilty and was sentenced to a year in prison.
Another federal law makes it a crime to retain classified information that was obtained by improperly accessing it on government computers. The law applies only to the person who actually gets it from a computer and does not directly criminalize retaining classified information that was obtained by someone else. But some legal experts think it could be used to charge someone who's an accessory after the fact.
That brings us back to the espionage laws, which the government clearly is considering.
One of the espionage statutes makes it a crime to receive national defense information if one knows it was obtained illegally and has reason to believe that it could be used "to the injury of the United States or to the advantage of any foreign nation."
Some legal experts believe Assange may have tried to inoculate himself against this law when he asked in late November if the U.S. wanted any names blacked out of the most recent document dump.
But on Nov. 27, the State Department sent him a letter advising him that publishing further documents would "place at risk the lives of countless innocent individuals — from journalists to human rights activists and bloggers to soldiers to individuals providing information to further peace and security."
Publication would also, the letter said, place military operations at risk and jeopardize U.S. relations with other countries. The letter was clearly intended to defeat any subsequent argument by Assange that he had no idea the material could be used to injure the U.S.
It's worth noting that the letter, signed by Harold Koh, the State Department's legal adviser, also said that the diplomatic cables WikiLeaks was about to release were obtained illegally and that "as long as WikiLeaks holds such material, the violation of the law is ongoing." That incidates that some government lawyers have concluded that WikiLeaks is violating the espionage laws merely by retaining the cables.
The government faces a considerable obstacle with the espionage laws: They've never before been used to charge a recipient who publishes classified information.
But a senior Justice Department official says the government may be preparing to argue that it's not going after newspapers that actually publish the information in the traditional sense. It would instead claim that WikiLeaks is functioning as a kind of storehouse, gathering and maintaining the material in clear violation of the law.
And there's another obstacle. Before federal prosecutors could put Julian Assange on trial, they'd have to get him here. The U.S. has extradition treaties with several European countries, including Sweden. But some do not apply to crimes considered political. Assange's lawyers could argue that any U.S. prosecution was politically motivated. In any event, the extradition process can take months to work through the courts overseas.
Assange, Wikileaks Mount New Defense
WikiLeaks founder Julian Assange defended his secrets-spilling website in an editorial published in an Australian newspaper Wednesday, a day after he was arrested in London in a sex-crimes investigation.
In the editorial, published by The Australian, Assange writes that there is a great need for WikiLeaks and denies that the site's publication of classified information has endangered lives.
"WikiLeaks has a four-year publishing history. During that time we have changed whole governments, but not a single person, as far as anyone is aware, has been harmed," Assange wrote. "But the US, with Australian government connivance, has killed thousands in the past few months alone."
Also Wednesday, WikiLeaks tweeted a statement on Assange's arrest in Britain on Tuesday.
"Today, Wikileaks editor-in-chief Julian Assange was refused bail by a UK court ... However, this will not stifle Wikileaks," spokesman Kristinn Hrafnsson said in a statement. "The release of the US Embassy Cables — the biggest leak in history — will still continue. This evening, the latest batch of cables were released, and our media partners released their next batch of stories."
The statement also made note of efforts to cut off the flow of money to WikiLeaks.
"We will not be gagged, either by judicial action or corporate censorship. Today Visa joined Mastercard, Paypal, Amazon, EveryDNS and others in cutting off their links," Hrafnsson said. "Wikileaks is still online. The full site is duplicated in more than 500 locations. Every day, the cables are loaded more than 50 million times."
In his editorial, Assange wrote that democracies require strong media to keep governments honest and that WikiLeaks helps fulfill that role. "WikiLeaks has revealed some hard truths about the Iraq and Afghan wars, and broken stories about corporate corruption."
The 39-year-old Australian surrendered to British officials Tuesday to answer a warrant issued for his arrest by Sweden. He is wanted for questioning after two women accused him of having sex with them without a condom and without their consent.
Assange's lawyers say the accusations stem from a "dispute over consensual but unprotected sex" and say the women only made the claims after finding out about each other's relationships with Assange.
Foreign Minister Kevin Rudd told reporters in Brisbane Wednesday that Australia would support Assange as it would any Australian arrested abroad.
"Any Australian citizen is entitled to the presumption of innocence — and that includes Mr. Assange," Rudd said.
During his court appearance, Assange said he would fight extradition to Sweden and he provided the court with an Australian address. Britain's Sky News reported that Assange was receiving consular assistance from officials at the Australian High Commission.
The next court hearing is scheduled for next Tuesday, and Assange will remain in custody until then because he was deemed to be a flight risk.
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Assange Ordered To Jail While Court Decides On Extradition
WikiLeaks founder Julian Assange was sent to jail Tuesday while a London court decides whether to order his extradition to Sweden.
The judge at the City of Westminster Magistrate's Court refused to grant Assange bail, despite several celebrities coming forward and offering to pay his surety.
Assange, who was in court with security guards on either side of him and his lawyer in front, must now stay in custody until December 14. It was not immediately clear if the court would decide on that date whether to release him.
In making his decision, the judge cited the fact that Assange gave no permanent address and has a nomadic lifestyle, and that he has access to significant funding that would make it easy for him to abscond.
English socialite Jemima Khan had offered to pay surety of 20,000 pounds ($31,500) and journalist John Pilger also offered a sum of money.
At the start of the proceedings, Assange was asked for his address and at first gave a post office box. When told that wasn't sufficient, he wrote a location on a piece of paper and handed it to the judge; it was later revealed that Assange wrote "Parkville, Victoria, Australia" on the paper.
The judge repeatedly said the case is "not about WikiLeaks," but about serious sexual offenses that allegedly occurred on three occasions with two women.
The media was allowed inside the courtroom initially but was later ordered to leave.
Assange appeared in court after turning himself in at a London police station. He was arrested on a Swedish warrant, though he has not been charged with any crime.
He refused to agree to be extradited to Sweden, so the court now has roughly 21 days to decide whether to order his extradition, said Mark Ellis, executive director of the International Bar Association.
Even though the Swedish warrant is a European arrest warrant designed for easy transfer of suspects among European states, Assange may still fight it, Ellis said. If the court does decide to allow his extradition, Assange will be allowed to appeal that decision, too, elongating the legal process, he added.
Assange, a 39-year-old Australian, has said he has long feared retribution for his website's disclosures and has called the rape allegations against him a smear campaign.
Sweden first issued the arrest warrant for Assange in November, saying he is suspected of one count of rape, two counts of sexual molestation and one count of unlawful coercion -- or illegal use of force -- allegedly committed in August.
The Australian High Commission in London said Tuesday it was providing consular assistance to Assange as it "would to any Australian under arrest."
Last week, at the request of Sweden's Stockholm Criminal Court, Interpol issued a "red notice" placing Assange on a list of wanted suspects.
A spokesman for WikiLeaks said Tuesday the legal proceedings in London had not affected the site, which facilitates the anonymous leaking of secret information.
"WikiLeaks is operating as normal, and we plan to release documents on schedule," spokesman Kristinn Hrafnson said.
WikiLeaks has been under intense pressure from the United States and its allies since it began posting the first of more than 250,000 U.S. State Department documents November 28.
Since then, the site has been hit with denial-of-service attacks, been kicked off servers in the United States and France, and found itself cut off from funds in the United States and Switzerland.
In response, the site has rallied supporters to mirror its content "in order to make it impossible to ever fully remove WikiLeaks from the internet." More than 500 sites had responded to the appeal by Monday evening, it said.
WikiLeaks has also posted a massive, closely encrypted file, identified as "insurance" -- a file Assange's lawyer has described as a "thermonuclear device." Assange has said the more than 100,000 people who have downloaded the file will receive the key to decoding it should anything happen to him or should the site be taken down.
"The insurance file will only be activated in the gravest of circumstances if WikiLeaks is no longer operational," Hrafnson said.
Ira Winkler, a former National Security Agency analyst, said the file is nearly impossible to decode without the key.
U.S. Attorney General Eric Holder said he has authorized "significant" actions related to a criminal investigation of WikiLeaks, saying U.S. national security has been put at risk.
"We are doing everything that we can," Holder said Monday, though he declined to answer questions about the possibility that the government could shut down WikiLeaks.
Holder also refused to say whether the actions involved search warrants or requests under the Foreign Intelligence Surveillance Act, which authorizes wiretaps or other means, describing them only as "significant." British Foreign Secretary William Hague said the leaked information is also a danger to British national security, calling the leaks "reprehensible" and "irresponsible."
"Governments have to be able to transmit confidential information, to share confidential information, of course, for them to be able to go about their job," Hague told CNN affiliate ITN. "We think it can be a danger to our national security."
Asked Tuesday in Afghanistan for his response to the arrest, U.S. Defense Secretary Robert Gates said, "I haven't heard that, but it sounds like good news to me."
Monday, WikiLeaks published a secret U.S. diplomatic cable listing places the United States considers vital to its national security, prompting criticism from both the United States and Britain that the site is inviting terrorist attacks on American interests.
State Department spokesman P.J. Crowley said the disclosure "gives a group like al Qaeda a targeting list."
The sites are included in a lengthy cable the State Department sent in February 2009 to its posts around the world, asking American diplomats to identify installations overseas "whose loss could critically impact the public health, economic security, and/or national and homeland security of the United States."
The diplomats identified dozens of places on every continent, including mines, manufacturing complexes, ports and research establishments. CNN is not publishing specific details from the list, which refers to pipelines and undersea telecommunications cables as well as the location of minerals or chemicals critical to U.S. industry.
Other leaked documents reveal confidential information relayed by U.S. embassies around the world that shed light on the United States and other countries.
A cable prepared for the visit of U.S. Special Envoy Richard Holbrooke to Saudi Arabia earlier this year says terrorist funding emanating from the kingdom remains a "serious concern."
A series of cables from last year show Chinese officials were increasingly anxious about their citizens obtaining uncensored online content through Google. One Politburo member said he believed the search engine was a "tool" of the U.S. government.
U.S. diplomatic cables from Mexico say their war against drug cartels is frustrated by a risk-averse army and interagency rivalries. It does, however, highlight outstanding successes against cartel bosses.
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WikiLeaks Founder Julian Assange Arrested
British police arrested WikiLeaks founder Julian Assange Tuesday on a European warrant issued by Sweden.
Swedish prosecutors issued the arrest order for the 39-year-old Australian who is wanted on suspicion of committing sexual crimes, which he denies.
Assange was arrested at 9:30 a.m. local time (4:30 a.m. ET) Tuesday and was due to appear at City of Westminster Magistrate's Court later in the day, London's Metropolitan Police said.
Assange has been hiding out at an undisclosed location in Britain since WikiLeaks began publishing hundreds of U.S. diplomatic cables online last month.
The organization's room to maneuver has been narrowing by the day. It has been battered by Web attacks, cut off by Internet service providers and is the subject of a criminal investigation in the United States, where officials say the release jeopardized national security and diplomatic efforts around the world.
Assange's British lawyer, Mark Stephens, had earlier arranged to deliver him to U.K. police for questioning in the sex-crimes investigation.
The U.K.'s Guardian newspaper reported that Assange arrived at court with both of his lawyers, Stephens and Jennifer Robinson, and was expected to release a video statement later Tuesday.
The Guardian reported that WikiLeaks had no plans to issue an encrypted version of its documents that could be published instantly, as it had threatened to do if its staff were arrested.
Assange is wanted on suspicion of rape, sexual molestation and unlawful coercion in Sweden, and the case could lead to his extradition.
Amid Assange's personal legal troubles, his website continued to reveal state secrets.
According to the latest diplomatic cables — reported by the Guardian — NATO has drawn up secret plans to defend the Baltic states, Estonia, Latvia and Lithuania, and Poland against any Russian threat.
Nine NATO divisions were identified for combat operations in the event of Russian aggression and countries were grouped together in a new regional defense scheme codenamed Eagle Guardian, the cables said.
Such revelations have prompted the U.S. to consider prosecuting Assange, but the rape allegation presents a more immediate issue.
Interpol placed Assange on its most-wanted list on Nov. 30 after Sweden issued an arrest warrant. Last week, Sweden's highest court upheld the detention order.
Assange has denied the accusations, which Stephens has said stem from a "dispute over consensual but unprotected sex." The lawyer has said the Swedish investigation has turned into a "political stunt."
'Keen to clear his name'
Another Assange lawyer, Jennifer Robinson, said the WikiLeaks founder had voluntarily offered to cooperate with Swedish prosecutors because he "is very keen to clear his name," but his offers have been refused.
She said it was "disproportionate" to seek an arrest warrant rather than a formal summons for his interrogation.
"Mr. Assange still has not seen the full allegations against him or the potential charges he faces in a language which he understands, which is English, and this is in clear breach of his human rights under the European Convention of Human Rights," Robinson said in an interview with the Australian Broadcasting Corp.
The pressure on WikiLeaks mounted from other quarters Monday: Swiss authorities closed Assange's bank account, depriving him of a key fundraising tool.
And WikiLeaks struggled to stay online in the face of more hacker attacks and resistance from world governments, receiving help from computer-savvy advocates who have set up hundreds of "mirrors" — or carbon-copy websites — around the world.
In one of its most sensitive disclosures yet, WikiLeaks released on Sunday a secret 2009 diplomatic cable listing sites around the world that the U.S. considers critical to its security .
The locations include undersea communications lines, mines, food suppliers, manufacturers of weapons components, and vaccine factories.
'Dangerous'
Pentagon spokesman Col. David Lapan called WikiLeaks' disclosure "dangerous" and said it gives valuable information to the nation's enemies.
U.S. Attorney General Eric Holder said Monday the Obama administration was considering using laws in addition to the U.S. Espionage Act to possibly prosecute the release of government information by WikiLeaks.
Assange has said he and colleagues are taking steps to protect themselves after death threats.
Australian Prime Minister Julia Gillard told a news conference Tuesday that it is "grossly irresponsible" for WikiLeaks to publish items like critical infrastructure lists.
But she backed away from her comment made last week that posting classified U.S. government documents on the WikiLeaks website was an "illegal" act.
After being pressed by reporters to distinguish between leaking the documents and posting them, Gillard said their publication would not have been possible "if there had not been an illegal act undertaken" in the United States.
She said police were still investigating whether Assange had broken any Australian laws.
WikiLeaks has been under intense international scrutiny over its disclosure of a mountain of classified U.S. cables that have embarrassed Washington and other governments.
U.S. officials have been putting pressure on WikiLeaks and those who help it, and is investigating whether Assange can be prosecuted under espionage law.
In what Assange described as a last-ditch deterrent, WikiLeaks has warned that it has distributed a heavily encrypted version of some of its most important documents and that the information could be instantly made public if the staff were arrested.
For days, WikiLeaks has been forced by governments, hackers and companies to move from one website to another.
WikiLeaks is now relying on a Swedish host. But WikiLeaks' Swedish servers were crippled after coming under suspected attack again Monday, the latest in a series of such assaults.
It was not clear who was organizing the attacks. WikiLeaks has blamed previous ones on intelligence forces in the U.S. and elsewhere.
'Born with the Internet'
WikiLeaks' huge online following of tech-savvy young people has pitched in, setting up more than 500 mirrors.
"There is a whole new generation, digital natives, born with the Internet, that understands the freedom of communication," said Pascal Gloor, vice president of the Swiss Pirate Party, whose Swiss Web address, wikileaks.ch, has been serving as a mainstay for WikiLeaks traffic.
"It's not a left-right thing anymore. It's a generational thing between the politicians who don't understand that it's too late for them to regulate the Internet and the young who use technology every day," he added.
Meanwhile, the Swiss postal system's financial arm, Postfinance, shut down a bank account set up by Assange to receive donations after the agency determined that he provided false information regarding his place of residence in opening the account. Assange had listed his lawyer's address in Geneva.
"He will get his money back," Postfinance spokesman Alex Josty said. "We just close the account."
Assange's lawyers said the account contained about $41,000. Over the weekend, the online payment service PayPal cut off WikiLeaks and, according to Assange's lawyers, froze $80,000 of the organization's money.
The group is left with only a few options for raising money now — through a Swiss-Icelandic credit card processing center and accounts in Iceland and Germany.
NATO combat plan
According to the latest leaked cables, NATO took a secret decision to draft contingency plans for the former Soviet states of Estonia, Latvia and Lithuania earlier this year at the urging of the United States and Germany.
The move ended years of division within the alliance over how to view Russia, the Guardian said.
In parallel talks with Warsaw, the newspaper added, Washington offered to beef up Polish security against Russia by deploying special naval forces to the Baltic ports of Gdansk and Gdynia, putting F-16 fighter aircraft in Poland and rotating C-130 Hercules transport planes into Poland from U.S. bases in Germany.
NATO leaders were understood to have quietly endorsed the new strategy to defend vulnerable parts of eastern Europe at a summit in Lisbon last month, the Guardian said.
In Lisbon, NATO and Russia agreed to cooperate on missile defense and other security issues, and hailed a new start in relations strained since Russia's military intervention in Georgia in 2008. U.S. President Barack Obama has a policy of "resetting" relations with Moscow.
But the WikiLeaks cables point to the underlying tension in the relationship between the former Cold War adversaries.
The plan entailed grouping the Baltic states with Poland in a new regional defense scheme, codenamed Eagle Guardian, the paper said.
Poland, the Baltic states and others were rattled by Russia's brief war against Georgia and have been irked by large-scale Russian army exercises in Belarus and by Moscow's new military doctrine that sees NATO expansion as a threat.
The Guardian said nine NATO divisions — U.S., British, German and Polish — had been identified for combat operations in the event of aggression against Poland or the Baltic states.
North Polish and German ports had been listed to receive naval assault forces and British and U.S. warships, the paper said.
The first NATO exercises under the plan were to take place in the Baltic next year, it quoted informed sources as saying.
Germany and other Western European countries had previously opposed drawing up plans to defend the Baltic states, anxious to avoid upsetting Russia.
Earlier this year, the United States started rotating U.S. army Patriot missiles into Poland.
But the secret cables exposed the Patriots' value as purely symbolic. The Patriot battery was for training purposes, and was neither operational nor armed with missiles, said the Guardian.
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Sources: AP, CNN, Guardian.co.uk, MSNBC, Youtube, Google Maps
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