With Bradley Manning receiving a 35-year prison sentence on Wednesday, observers of the WikiLeaks saga are wondering what’s next for Julian Assange, the site’s founder?
In particular, the potential extradition of Assange to the United States to face charges would, in theory, pose a major First Amendment test.
Manning provided Assange and WikiLeaks with more than 700,000 classified documents that were eventually published on the WikiLeaks website and some other online destinations.
Since the Manning trial started, much of the speculation about Assange was if the WikiLeaks founder, who is currently at Ecuador’s embassy in London, will face criminal charges in the United States, possibly under the Espionage Act.
The idea of trying to prosecute Assange has been in the news going back to 2010, when the New York Times said the Justice Department was looking at other ways, beyond the Espionage Act, to charge Assange.
At the time, Attorney General Eric Holder acknowledged there were potential First Amendment issues charging a newspaper like the Times, for publishing information from Assange, but the same may not be true for Assange.
Assange said back in December 2010 that American officials told WikiLeaks there were"“thoughts of whether I could be charged as a co-conspirator to espionage, which is serious."
After Manning was convicted last month, Assange’s legal representatives said they believed a grand jury was meeting to consider charges against Assange and that some charges may have already been decided.
The Washington Post also said a government spokesperson confirmed the existence of a WikiLeaks grand jury.
The Post said prosecutors in the Manning case were careful to label WikiLeaks not as a publisher, but as an "activist organization," and that prosecutors cast Assange as a co-conspirator in the Manning case.
The distinctions are important because the federal government has never successfully prosecuted a newspaper or another news-gathering publisher for receiving leaked information, and then publishing it.
WikiLeaks considers its actions as a form of journalism, which would raise serious First Amendment considerations if Holder pursues charges against Assange.
NBCNews.com recently ran a very interesting three-person interview with experts Abbe D. Lowell, Paul Rosenzweig and Stephen Vladeck on the constitutional issues involved in the Assange case.
The feature is interesting because it presents three ideological viewpoints on a multi-faceted issue.
Lowell had represented two lobbyists for a pro-Israel lobbying group accused of violating the Espionage Act in case that is close to the WikiLeak’s situation; Rosenzweig was in the President George W. Bush administration and is a security expert; Vladeck is a law professor at American University who argued against the Bush administration in the case of Hamdan v. Rumsfeld.
The experts agreed that one factor is that Assange isn’t an American citizen and he wasn’t in the United States when the Manning information was published.
Lowell said that if the United States were able to get Assange here for trial, he would enjoy First Amendment protection regardless of his citizenship. Vladeck agreed; Rosenzweig didn’t.
All three were leaning toward a prediction that Assange will be indicted, if he survives his legal problems in Sweden and can be successfully extradited to the United States.
And the experts agreed, for different reasons, that the Espionage Act needs a serious revision.
But Rosenzweig had the final word in the debate with his claim that it was highly unlikely that Assange would be sent to the United States, since Ecuador and Sweden don’t have a history of political extradition.
"In truth, I see this as a very high hurdle and have trouble envisioning how it would be overcome," he said.
Philadelphia’s National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center’s blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America’s history and a variety of expert contributors.