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WikiLeaks founder lurks beyond reach of U.S. law

Attorney General Eric Holder wants us all to know that the Justice Department has begun a dead-serious probe into WikiLeaks' release of hundreds of thousands of internal government documents, many of them classified.

It is an "active, ongoing criminal investigation," he told reporters this week as news stories stemming from the document dump appeared.

President Obama's top spokesman went further. Robert Gibbs called those responsible "criminals, first and foremost."

You can say that WikiLeaks founder Julian Assange is reckless and dangerous for making the documents public.

You can say he's hurt the international conversation among diplomats and endangered the lives of innocent people who have helped the United States in time of war, people who staked their lives on promises of anonymity.

But before you call someone a criminal, you have to have a law that you can say he broke. Holder is going to have a hard time doing that with Assange.

If the attorney general were confident, he wouldn't have answered a reporter's question about difficulties in prosecuting Assange this way:

"To the extent there are gaps in the laws, we will move to close those gaps."

This is essentially an acknowledgment of a hole in the law. And even if prosecutors can leap across that, they'd then face a really big hurdle in the form of the First Amendment.

Yes, Congress can pass new laws and amend old ones, and would no doubt be happy to do so if it meant locking up Assange. But it wouldn't.

New laws can't criminalize past conduct. The Constitution clearly bans so-called ex post facto laws so that the government can't toss someone in jail for something that was legal at the time it was done.

Besides, even if current law were sufficient, how would authorities bring Assange, an Australian native in hiding outside the United States, into this country to stand trial?

Presented with this question, Holder told reporters that no one's foreign citizenship or residence would prevent him from being targeted. But that brings us back to this question: On what charge could he be indicted?

Without that, Assange could live next door to Holder and wave at him daily without fear of arrest as the nation's top prosecutor went off to work.

No law criminalizes civilian release of classified information, except in rare circumstance, such as revealing the name of an undercover agent or disclosing secret codes. Britain has an Official Secrets Act, but prosecutions are hard to mount, difficult to win and easy to lambaste as politically motivated.

All we've got is that World War I-era spy law, the Espionage Act of 1917. Rep. Peter King, R-N.Y., the next chairman of the House Homeland Security Committee, sent Holder a letter this week urging him to use the law to charge Assange.

The best shot at making that work would be by proving Assange encouraged the leak and conspired with his inside source to disgorge the documents. An Army private first class has been charged under military law with some of the leaks.

And even if investigators can find a clear conspiracy between the two, a ruling by a federal judge in another case shows it isn't easy to use the spy law to prosecute civilians.

"The government would still have to prove it was potentially damaging to national security, that he knew it was potentially damaging, that he understood that his conduct was unlawful," said Baruch Weiss, a former federal prosecutor who helped defend two lobbyists charged with violating that law.

Any prosecution of Assange would come up against First Amendment issues. How can you criminalize speech, especially political speech, especially on matters of grave public importance? That would seem to fly in the face of the Constitution's promise of a free press and free speech.

The administration's best chance of getting Assange behind bars would be to get someone else to do it. The Daily Beast website reported in August that American officials were pitching the idea to Britain, Australia and Germany, arguing that their troops, too, have been harmed by the leaks.

Those are countries without the clear constitutional guarantees of free speech that the United States has. It might work, but there's a reason the founders insisted on free speech and a free press.

Whatever harm the leaks have caused, slipping around the First Amendment isn't the way to fix it.

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