Former federal prosecutor and author Andrew C. McCarthy tackles this thorny question in today's New York Daily News. He begins by laying out a comprehensive rebuttal of the primary arguments offered by Assange apologists:
On close scrutiny, the claims of WikiLeaks apologists melt away.
First, because Assange is unabashedly conducting espionage: He has abetted the theft of national defense secrets with the aim of revealing them and damaging the U.S. Nothing more is required for conviction under the federal Espionage Act. Assange's defenders counter that he is not the U.S. government official who purloined our secrets, nor a conventional spy who handed them over to Al Qaeda or some hostile state. These are red herrings. Our law obliges prosecutors to prove only that a defendant came into unauthorized possession of sensitive intelligence, knew it could be used to harm our nation and disclosed it to others not authorized to have it. The fact that the actual stealing and harming was done by others is beside the point.
WikiLeaks fans next attack allegations of espionage on jurisdictional grounds, arguing that the overseas acts of non-Americans fall outside the reach of our laws. As the Congressional Research Service notes, however, espionage is among the plethora of U.S. penal laws given extraterritorial effect. What's more, Assange appears to have encouraged traitorous U.S. officials to steal classified information and transmit it to WikiLeaks for disclosure. That would raise the specter of criminal conspiracy - and no matter where they are located, conspirators are vicariously responsible for the acts of their American confederates.
Further, Assange's champions portray him as a journalist who purportedly enjoys the sweep of our First Amendment's protections. This claim makes three erroneous assumptions. To begin with, free speech and free press rights do not immunize journalists from liability. In the seminal Pentagon Papers case, the Supreme Court held that no prior restraints could bar publication; the justices did not shield journalists from post-publication prosecution or civil suit for writings that violate the law. Free speech has never been understood to permit libel, obscenity or incitement to violence, nor does it green-light espionage and giving aid and comfort to America's enemies.
...Assange is not a journalist. He is a conspirator in an espionage enterprise. A journalist aims to inform; Assange aims to destroy. But for the sake of argument, let's pretend that the First Amendment insulates the press and that Assange is a journalist. Even then, the protections of our Constitution would be unavailing. In large measure, the Constitution was adopted to secure the United States from foreign threats. The rights vouchsafed by it protect members of our national community from arbitrary government action. They are not a safe harbor for aliens outside our country whose only connection to our body politic is hostile.
McCarthy's conclusion, which he himself admits is unsatisfying, is to indict Assange in absentia and build an airtight case against him -- which may help prospects for his extradition:
Domestic prosecution is unlikely to stop Assange any more than it has stopped Osama Bin Laden, who has been under U.S. indictment since 1998. Nevertheless, the Justice Department must try. It is not the task of federal prosecutors to capture Assange. Instead, they must build the best case they can. A compelling case may help persuade our allies to extradite Assange, and it will ensure that we are ready to proceed against him however long that takes.
Though initially slow to react to WikiLeaks, the Justice Department has stepped up its investigation. Word is, an indictment may be coming.
Julian Assange should be indicted for espionage, and every effort should be made to extradite him to the United States. We may never get him to an American courtroom. But if we do, he is likely to be convicted.
In the interim, he will bear the taint of a wanted outlaw, drastically diminishing WikiLeaks' ability to raise funds, conduct business and further harm the United States.
The insufficiency of this "solution" will rankle Americans who question many elites' fixation with our legal system as the remedy to national security threats. Don't for a minute count McCarthy among those reflexively legalistic ranks. In fact, he literally wrote the book on the folly and peril of America's failed law enforcement paradigm for confronting external menaces.