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The Obama administration has charged government employees and contractors who leak classified information — such as former National Security Agency contractor Edward Snowden and former Army intelligence analyst Bradley Manning — with violations of the Espionage Act. But officials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis.
“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”
Justice officials said they looked hard at Assange but realized that they have what they described as a “New York Times problem.” If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper, according to the officials, who spoke on the condition of anonymity to discuss internal deliberations.
WikiLeaks spokesman Kristinn Hrafnsson said last week that the anti-secrecy organization is skeptical “short of an open, official, formal confirmation that the U.S. government is not going to prosecute WikiLeaks.” Justice Department officials said it is unclear whether there will be a formal announcement should the grand jury investigation be formally closed.
“We have repeatedly asked the Department of Justice to tell us what the status of the investigation was with respect to Mr. Assange,” said Barry J. Pollack, a Washington attorney for Assange. “They have declined to do so. They have not informed us in any way that they are closing the investigation or have made a decision not to bring charges against Mr. Assange. While we would certainly welcome that development, it should not have taken the Department of Justice several years to come to the conclusion that it should not be investigating journalists for publishing truthful information.”
There have been persistent rumors that the grand jury investigation of Assange and WikiLeaks had secretly led to charges. Officials told The Post last week that there was no sealed indictment, and other officials have since come forward to say, as one senior U.S. official put it, that the department has “all but concluded” that it will not bring a case against Assange.
A Justice Department spokesman declined to comment, as did former U.S. attorney Neil H. MacBride, whose office in the Eastern District of Virginia led the probe into the WikiLeaks organization.
In an interview with The Post earlier this month, Attorney General Eric H. Holder Jr. said that Justice Department officials are still trying to repatriate Snowden, who has obtained temporary asylum in Russia, to stand trial. But Holder also said that the Justice Department is not planning to prosecute former Guardian reporter Glenn Greenwald, one of the journalists who received documents from Snowden. Greenwald has written a series of articles based on the leaked material. An American citizen, Greenwald has said he fears prosecution if he returns to the United States from his home in Brazil.
Justice officials said that the same distinction between leaker and journalist or publisher is being made between Manning and Assange. One former law enforcement official said the U.S. government could bring charges against Assange if it discovered a crime, such as evidence that he directly hacked into a U.S. government computer. But the Justice officials said he would almost certainly not be prosecuted for receiving classified material from Manning.
Assange has been living in a room in the Ecuadoran Embassy in London since Ecuador granted him political asylum. Assange is facing sexual-assault allegations in Sweden. Assange and some of his supporters have said the Australian national fears that if he goes to Sweden to face those allegations, he will be extradited to the United States.
“He is hiding out in the embassy to avoid a sexual-assault charge in Sweden,” Miller said. “It has nothing to do with the U.S. government.”