But, said former federal prosecutor Baruch Weiss, that statute raises difficulties of its own. "How do you prove that a particular cable about secret negotiations with
Russia was dangerous to national security? You have to disclose more classified information to explain to the jury the damage brought about by the disclosure," he said.
Perhaps the most significant issue is the Constitution's protection of people's right to speak freely and to exchange ideas.
"If the government were to prosecute the person who received and disseminated the classified information - as opposed to the individual who leaked it from within the government - mainstream media would express the concern that they could face prosecution for reporting information they routinely receive from government insiders," Wainstein said.
Fundamentally, Weiss said, the WikiLeaks case "is not about the disclosure of troop movements to al-Qaeda or giving the recipe for the plutonium bomb to
North Korea. This is the widespread publication of information that is important in determining the future policy of the United States, that could be very important for people in assessing how well our government is doing its job. It's a good example of the problems created by the First Amendment clashing with criminal law, the law protecting national defense information."
All the experts agreed that it may be difficult for the United States to gain access to Assange, who apparently has avoided traveling to the country. Most nations' extradition treaties exempt crimes viewed as political. "I can imagine a lot of Western allies would view this not as a criminal act, but as a political act," said Weiss, who was on the legal team that defended the two former pro-Israel lobbyists.