The Wikileaks Cablegate – a Legal Backgrounder

Apart from the understandable hype surrounding the Wikileaks Cablegate, there are many legal questions that need clarification. I have tried here to summarize available sources and comments on the different aspects of the Cablegate.

1. Wikileaks Cablegate as a violation of espionage laws

Australian and US law enforcement agencies are reportedly studying the possibility of criminal charges against WikiLeaks founder Julian Assange, including charges under the Espionage Act, for publishing classified US diplomatic cables. The US Espionage Act was adopted in 1917. There are some opinions that the Espionage Act is generally viewed as outdated in light of more modern case law on the First Amendment, also shown in the federal government loss in the Pentagon Papers case. Others say that if the US really believes that the Espionage Act is a constitutional law that ought to be enforced then they’d better be prepared to go after the New York Times, Le Monde, Der Spiegel, and El Pais, all of which published the classified cables after being granted early access and were part of a clear conspiracy with Wikileaks to break the Espionage Act.

U.S. Congressman Peter King has also vowed for the US to declare Wikileaks a terrorist organization, which would presumably allow the US to use anti-terrorist legislation, possibly Title VIII of the Patriot Act. There, however, provisions allow prosecuting the person who gained unauthorized access and caused subsequent damage to a protected computer, which could only be applied to the person who stole the cables in the first place.

In conclusion, it is possible for the US government to use the Espionage Act, but it will face many hurdles due to its potential unconstitutionality.

2. Julian Assange’s Rape Conviction

INTERPOL has made public the Red Notice, or international wanted persons alert, for WikiLeaks founder Julian Assange at the request of Swedish authorities who want to question him in connection with a number of sexual offences. However, INTERPOL cannot demand that any member country arrests the subject of a Red Notice.

Assange’s lawyer, Mark Stephens has previously said that the allegations were made after Assange had consensual sex with two women who turned on him after becoming aware of each other’s relationships. Sweden’s Supreme Court was reviewing Assange’s appeal of the order to detain him. Court official Kerstin Norman, who is handling the case, said a decision is expected late Wednesday or Thursday.

There is reportedly also a European arrest warrant for Assange by the Swedish authorities, but it was incorrectly filled out.

3. Amazon Hosting for Wikileaks

Amazon Web Services has stopped hosting Wikileaks. This was done for unspecified reasons, but as Larry Dignan points out, Amazon states clearly in its terms of service that it can host you as well as terminate an agreement at will.

4. Death Threats to Julian Assange

Certain individuals in the US have publicly called for the murder of Julian Assange. In US case law advocacy of violence can only be prohibited when there is clear incitement of an imminent violent act. I am not an expert in US law, but it appears to me that these threats constitute a violation. However, it is not clear whether someone in the US or Australia would want to prosecute those threats. In Bulgaria or in the European Union in general these threats would be prosecuted.

5. Conclusion

Three developments should be observed:

• if and how the US decides to prosecute Wikileaks and/or the newspapers that leaked the cables, and
• how the criminal case against Julian Assange is processed by the Swedish prosecution and courts, and
• whether some legal action is taken against individuals that incite the killing of Mr. Assange.