The Justice Department would kind of like to prosecute Julian Assange, who most recently leaked a list of "vital" U.S. facilities worldwide. All it has to do is figure out what crime the WikiLeaks founder has committed. Prosecuting Assange under the Espionage Act of 1917 might proving tricky: The government has never successfully prosecuted someone for receiving leaked information, and it's never even tried to prosecute a journalist, which Assange claims to be. Thus, government lawyers are looking at approaching the affair from other angles, as well. Other potential crimes include "trafficking in stolen property" and conspiracy, The New York Times' Charlie Savage reports.

Charging him with trafficking in stolen government property poses problems too--Assange published only copies of government documents. That means they'd be covered by intellectual property laws. But those laws cover trade secrets and artist' works--government documents can't be copyrighted. If Assange does leak documents from Bank of America, as some have reported he's considering, then perhaps he could be prosecuted for stealing trade secrets. Even then, however, Assange could claim it was "fair use," since he did not seek financial gain. Here are some comments on the Justice Department's ongoing attempt to deal with Assange.

• U.S. Will Get Him Eventually, Mark Pesce guesses at The Blueprint. "A compliant Australian government has already made it clear that it will do nothing to thwart or even slow that request--and he'll be charged with espionage, likely convicted, and sent to a US Federal Prison for many, many years. Assange gets to be the scapegoat, the pinup boy for a new kind of anarchism," he notes, "but what he's done can not be undone."

• Pathetic Response from the White House  "The Obama administration's response to the WikiLeaks fiasco is going from inadequate to farcical," declares Commentary's Max Boot. "Prosecutors have had months to prepare a case against Julian Assange for the harm he is doing to U.S. national security by posting online stolen military and diplomatic documents." Though he admits "there are a lot of problems with potential prosecution under the Espionage Act or other statutes," he wonders why, "if those barriers are insuperable" the administration hasn't "proposed legislation to Congress that would allow the prosecution of cyber-vandals like Assange." His bottom line:
  

Given the diplomatic damage that WikiLeaks continues to cause, the administration's inaction so far signals a dangerous ineffectuality that will come back to haunt the U.S. We can't rely on the Swedish courts to lock up Assange for rape--not when the apparent facts of the case appear to be as bizarre as they are.

• WikiLeaks Hasn't Broken the Law, Matthew Ingram argues at GigaOM. Visa, MasterCard, and PayPal "have said they have legal concerns about dealing with WikiLeaks--but is there any real justification for this? Not really." They say users would be violating their terms of service--which disallow helping others engage in illegal activity--to contribute to WikiLeaks, but they allow payments to porno sites. "Needless to say, the phrasing of those rules casts a pretty wide net," he admits, but "all the organization has done is to publish classified documents that originally belonged to the U.S. government--something that may be uncomfortable and embarrassing, but is not obviously illegal (even the Justice Department doesn't seem too sure about whether WikiLeaks is guilty of anything)." Interestingly, "Facebook released a statement saying that it has no issue with WikiLeaks."

• Tricky Position for Justice Department, Nitasha Tiku notes at New York Magazine. "Attorney General Eric Holder has already made clear his interest in pursuing espionage charges against Assange as part of its ongoing investigation. But Assange has his own looming threat over governments that seek to pursue criminal charges against his whistle-blowing website: his claim that he's got a bigger leak coming, to be released if anything happens to him.
  

• Lieberman Calls for New York Times to Be Prosecuted, Too, Mistermix notes at Balloon Juice. "Perhaps Bill Keller [editor of The New York Times] will now realize that" speaking negatively of Assange and "blathering on about the Times' exercise of journalistic judgment does him absolutely no good. He and Julian Assange are the same ... thing to the Liebermans of the world."

• Time to Update the Law, Paul Miller argues at Foreign Policy.
  

The administration is considering prosecuting Assange. But what is the difference between Assange and the New York Times? Why prosecute one but not the other? They both had unauthorized access to classified information and they both communicated the information to others to the detriment of U.S. national security. ... The United States government for all intents and purposes is legally unable to protect classified information, safeguard national security, and prosecute leaks. The one tool it has--the Espionage Act--is a nearly century-old statute that is so draconian, politically radioactive, and difficult to implement that it is essentially defunct. The law was written in a time when there were fewer media outlets and they policed themselves with an ethic of responsibility--in other words, ancient history. Faced with an epidemic of leaks, presidents face the choice of either doing nothing or literally accusing the press of treason. No president is going to do the latter. Under current practice, the press may disclose classified information with complete impunity.

The U.S. needs a new secrecy act that doesn't not require the government to show the leakers had the intent to harm the country, concludes Miller.

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Elspeth Reeve