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WikiLeaks, the Espionage Act, and an unlikeable leader

By Bill Dedman
msnbc.com

Msnbc.com has a legal roundtable discussion online now, exploring the prospects of a prosecution of WikiLeaks and its leader, Julian Assange, under the Espionage Act of 1917 and other laws. Thank you to the readers who suggested questions for the panelists, who were: Abbe D. Lowell, the noted defense attorney; Paul Rosenzweig, a former policy official at the Department of Homeland Security; and Prof. Stephen I. Vladeck at American University.

The traditional way to handle this sort of thing is to write a story, a summary, but there are so many issues in play that I thought this was one where it's best to have you hear directly from specialists in the field. We have three distinguished participants, and there's a great deal of subtlety in their answers. Selecting a couple of quotes, or a tally of their "votes" on an issue, wouldn't depict that complexity.

The discussion roamed from WikiLeaks itself to the First Amendment implications of such a case, to the weaknesses of a prosecution and a defense, to the changes needed in the Espionage Act and other laws.

It's not the most important legal point, but it's notable that the three panelists all offered similar answers to the question, what is a weakness for the defense. The answer: the defendant. His statements and demeanor will hurt him with a judge and jury.

Lowell: "Neither Assange nor the type of large disclosure he did (as well as his public statements) will inspire sympathy from a judge ruling on the case or a trial jury deciding whether they like his conduct or him. He stands a serious risk that a court or jury will want to find ways to convict him."

Vladeck: "If the prosecution boils down to whether Assange acted in bad faith, and whether he reasonably should have known that these disclosures would harm U.S. national security, he may have hurt his own cause by being so publicly forthright throughout this controversy, especially with regard to the effects of future leaks. If Assange’s publicly stated goal is to bring down incumbent administrations, banks, and the like, it may be hard for the defense to portray him as someone who didn’t appreciate the harm that might result from the disclosures."

Rosenzweig: "If he ever comes to trial, the jury will not like him. The obvious way to overcome it is to make him act more likeably — I wonder if that would be possible."

Read the full discussion, and let us know what you think. You can offer comments on that page,  where the question for readers is, If WikiLeaks is a news organization, should it still be prosecuted?

Update: The New York Times has a new story on a U.S. effort to charge WikiLeaks and Assange with conspiracy, sidestepping uncertainties with the Espionage Act.