WASHINGTON, Dec. 12 (UPI) -- The United States would dearly like to prosecute WikiLeaks founder and operator Julian Assange but it is having a hard time getting a legal grip on him.
The problem is not just physical custody, but of establishing at what point speech -- in Assange's case the publicizing of confidential and classified information -- becomes a crime. Is Assange, paraphrasing Justice Oliver Wendell Holmes, crying "fire" in a crowded theater?
Some U.S. politicians, such as Rep. Peter King, R-N.Y., have suggested that Assange could be prosecuted under the World War I-vintage Espionage Act, but that could prove problematic. Late last week, lawyers for Assange told a variety of news outlets that he might be indicted under the act soon, though the U.S. Justice Department was denying those reports.
Meanwhile, legislation introduced in the U.S. Senate proposes a new law targeting Assange for allegedly endangering the lives of confidential sources providing information to U.S. intelligence.
How a court would react to a law that punishes behavior occurring before it was enacted is anybody's guess. Ex post facto, or retroactive, laws are banned by Article I of the U.S. Constitution.
Assange's WikiLeaks Web site, of course, is causing considerable U.S. heartburn after posting about 75,000 U.S. cables on the Afghan war and the Pentagon, and is in the process of posting about 250,000 U.S. diplomatic cables that have at the least discomforted and embarrassed U.S. allies across the globe. The materials were provided by unnamed whistle-blowers.
WikiLeaks first appeared on the scene in 2006. In early 2007, The Washington Post was reporting that it was modeled on Wikipedia and would allow widespread contributors to upload sensitive government documents. At first, its principal whistle-blowing target was China.
But that has changed in the last several years. Now, the United States is feeling the heat.
However, all the aggravation hasn't been limited to the U.S. government. The harried Assange, an Australian, has been taken into British custody on a Swedish warrant charging him with sexual assault. His Web site has had trouble finding a home, has been shut down and then restored by a U.S. judge and has twice been hit by massive cyberattacks. His lawyers say all of his troubles stem from political maneuvering by the United States and its allies -- who vehemently deny the allegation.
For their part, the Swedes say the sexual assault charge stems from a simple crime committed on an unwilling victim.
Last month, Attorney General Eric Holder said the U.S. Justice Department had begun an intense investigation of Assange's activities, implying an eventual prosecution, but gave no details.
He said the Espionage Act was only one avenue being considered. Presumably, any U.S. law being considered is already on the books.
WikiLeaks' action "puts at risk our national security, but in a more concrete way it puts at risk individuals who are serving this country in a variety of capacities, either as diplomats, as intelligence assets," Holder said. "It puts at risk the relationships that we have with important allies around the world."
Any prosecution of Assange, and perhaps any of the hundreds of WikiLeaks volunteers, would have to take into account legal precedent.
The 1919 U.S. Supreme Court ruling in Schenck vs. United States set the bar for criminal speech, at least for the next five decades -- any speech that causes a "clear and present danger." Such speech was not protected by the First Amendment, the court said.
The 1917 Espionage Act made it a crime to convey information that interfered with U.S. military operations or hindered the success of those operations during time of war, and violators could be punished with death or heavy prison sentences.
Socialist leader Charles Schenck was indicted in Pennsylvania under the Espionage Act for distributing a leaflet challenging the military draft, citing the 13th Amendment, which banned slavery. For that advocacy, Schenck and a fellow official were convicted and sentenced to prison terms.
The U.S. Supreme Court upheld the convictions. Writing for the unanimous court, Justice Holmes said: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force."
He added: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right."
The "clear and present danger" standard was modified to "imminent lawless action" in 1969's Brandenburg vs. Ohio.
In that case, Ku Klux Klan leader Clarence Brandenburg telephoned a Cincinnati television station with an invitation to attend a Klan "rally" at a farm in Hamilton County. A reporter and a cameraman attended the rally and filmed it.
Brandenburg was convicted under an Ohio statute for advocating "the duty, necessity, or propriety of crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for voluntarily assembling "with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."
He was sentenced to one to 10 years in prison and assessed a $1,000 fine.
But an unsigned opinion by a unanimous U.S. Supreme Court overruled the conviction, saying the statute purports to punish "mere advocacy" and assembly to advocate.
The Supreme Court had upheld a similar "mere advocacy" law in 1927's Whitney vs. California. However, the ruling in Brandenburg overturned Whitney and said later court decisions "have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
The Brandenburg opinion said: "(W)e are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and 14th Amendments," and their free speech and due process guarantees.
In any event, if the Obama administration decides to prosecute Assange, it had better get all of its ducks in a row.
Daniel Ellsberg and Anthony Russo were charged under the Espionage Act for photocopying and releasing the Pentagon Papers in 1971. Both left the courtroom free men, not because they were acquitted, but because a federal judge found improper government behavior, including illegal wiretapping.
The Nixon administration also lost in the Supreme Court in a 1971 bid to prevent publication of the Pentagon documents, a critical Defense Department inside look at the Vietnam War, in the nation's newspapers.