Can the Wikileaks Founder Be Prosecuted for Espionage by the US?

Julian Ku says the answer is yes, under US domestic statutes … if the US can catch him.  The “him” in question is Julian Assange, an Australian living in Sweden.  (The Swedish prosecutor has withdrawn its unrelated rape charge against Assange in apparent embarrassment, and Assange in turn has accused the prosecutor of possibly having been led into a dirty tricks campaign by the Pentagon.)

But what of US charges of espionage?  Adam Entous and Evan Perez report at the WSJ of the US government considering such charges .  At Opinio Juris, Ku analyzes the US domestic statute and concludes that the obstacle is not bringing charges under the statute, which does not preclude espionage chargers against a foreign person outside the United States, but instead having physical custody over a defendant.  After quoting relevant parts of the Espionage Act:

[T]here is an intent issue here (Did Assange obtain the info for the purpose of or with reason to believe it would be used to injure the U.S.?), but I actually don’t think that would be a problem.  Wikileaks’ lawyer seems to think that the real problem is Assange’s nationality and the fact that Wikileaks does not have a presence in the U.S.  But this is not a problem at all.

The Espionage Act has long been held to apply to foreign nationals who commits acts while abroad (see U.S. v. Zehe, 601 F.Supp. 196 (D. Mass 1985).).  The only problem seems to be actually capturing Assange.  It is worth noting, of course, that abducting Assange, even in violation of the sovereignty of a country where the U.S. has an extradition treaty, would not prevent a U.S. court from trying him. (See U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)).  And finally, Wikileaks may or may not have a First Amendment defense, and even if it does, the precedent of NY Times v. U.S., 403 U.S. 713 (1971), (the Pentagon Papers case) only seems to prevent prior restraint.  Post-publication prosecution is probably OK under the First Amendment.

Is Julian right about this as a matter of US domestic law?  Without having done much background reading, I think so.  But I would welcome informed analysis.

(Off-topic, congratulations to Adam Entous, cited above, for his move from Reuter’s to the national security beat at the WSJ; Entous has done outstanding reporting on the drone and targeted killing campaign.  I follow his reporting closely.)