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Wednesday, December 8, 2010

WikiLeaks and Criminal Prosecution

The suggestion that WikiLeaks, and its founder/frontman Julian Assange, should be prosecuted under United States law raises numerous questions. 

First, any theory of criminality in which a requisite element of the crime is the status of divulged information as "classified information" will raise a huge question of fact as to whether the published information in fact was classified, and then, whether it should have been classified.  The Government classifies all sorts of information in order to prevent its dissemination, and not because it is necessarily sensitive.  The investigation -- whether pre-indictment or during post-indictment, pre-trial discovery -- relating to this issue could be immense.

Secondly, there are First Amendment concerns. There has even been the suggestion from Senator Joseph Lieberman that the New York Times face prosecution.

This raises a separate point, and the point of my analysis here.  There are things you can do, as they are not prohibited.  There are other things you cannot do because they are illegal, or impractical.  And then there is the third category of things that you can do...but should not do, either for reasons of common sense, patriotism or a desire for self-preservation.

Eric Dixon is a New York lawyer and president of Eric Dixon LLC.  Mr. Dixon handles investigative matters and strategic analysis for business, political and individual clients.  He is available for comment at 917-696-2442 and via e-mail at

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