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Washington • Even as some government officials contend that the release of thousands of classified documents by WikiLeaks founder Julian Assange jeopardizes U.S. national security, legal experts, Pentagon officials and Justice Department lawyers concede any effort to prosecute him faces numerous hurdles.

Among them: Prosecutors apparently have had difficulty finding evidence that Assange ever communicated directly with Army Pfc. Bradley Manning, 23, an intelligence specialist who's widely thought to be the source of the documents, but is charged only with misusing and illegally downloading them.

Prosecutors declined to discuss what evidence they have in the Manning case, but three Pentagon officials who cautioned that their information is two months old recently told McClatchy Newspapers that as of that time prosecutors had no evidence tying Manning to Assange.

The prosecution is now working under the theory that Manning, who was arrested in May in Iraq and is being held at the Marine Corps base at Quantico, Va., provided the information to an unnamed third party who then passed the information to WikiLeaks, according to the officials, who agreed to speak only on the condition of anonymity because the case is still under investigation.

Manning, who faces as many as 54 years in prison on 10 charges, isn't cooperating with prosecutors, the officials said. His attorney, Maj. Thomas Hurley, didn't answer numerous calls seeking comment.

In addition, any potential Assange prosecution on charges that he intentionally threatened U.S. national security would be complicated because top national security leaders disagree about how damaging the leaks have been. Secretary of State Hillary Clinton said the release could put lives in danger, but Secretary of Defense Robert Gates called the reaction "overwrought" in a briefing with reporters.

Also unclear is what law would apply. The Justice Department would most likely charge Assange under one of two laws — the Espionage Act of 1917 or theft of government property, former prosecutors and experts agree.

Either charge would be the first of its kind, however.

No journalist or publisher has ever been successfully prosecuted under the Espionage Act. "We are talking about creative legal territory," said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists and a regular critic of government secrecy policies.

As for theft of government property, that law was designed for actual things, not electronic information to which the government never lost access, experts point out. Throughout Manning's alleged downloading of the documents onto a CD, other government officials could still read the documents — an important difference, experts say, from taking hard copies out of a room to copy them.

"Whether that law can be extended to electronic information is a very open question," said Baruch Weiss, a litigation partner at Arnold & Porter who specializes in white-collar and national security matters. Weiss is also a former federal prosecutor and served in the Treasury and Homeland Security departments.

Jeffrey Smith, also a partner at Arnold & Porter who served as the CIA's general counsel from 1995 to 1996, agreed.

"We are in an area where law is not clear," he said. "Technology and journalism are changing quickly. The law may not be keeping up but the government responsibility is the same."

Finding that WikiLeaks isn't a journalistic organization would also be difficult. While its current release of government documents has drawn the most attention, the organization has published reports on many other topics since its founding in 2006, including a United Nations report alleging the abuse of girls and women by peacekeepers in eastern Congo and 573,000 messages from pagers purportedly chronicling the events of Sept. 11, 2001.

In a 2008 case, several U.S. news organizations, including the Los Angeles Times, the Society of Professional Journalists, Gannett, Hearst and E.W. Scripps filed court briefs supporting WikiLeaks' right to publish after Bank Julius Baer of Switzerland sued in U.S. federal court to prevent WikiLeaks from publishing bank records.

The records, WikiLeaks said, showed that prominent officials from several countries had used the bank to hide assets and avoid taxes. After initially issuing an injunction blocking the publication, the judge reversed himself, saying the case raised "serious questions ... of possible violations of the First Amendment."

The legal ambiguity also creates political challenges, Aftergood said.

"Do you run the risk of increasing public support for WikiLeaks activities instead of the opposite? What are the consequences of prosecuting and then losing?" Aftergood asked. "Which course of action is more likely to serve the government's interests? What if a prosecution does not stop the disclosure but accelerates them? What if it inspires the rise of copycat ideas?"

That certainly is a possibility. After the WikiLeaks site came under attack following the Nov. 28 release of documents, other websites began to mirror its content; according to WikiLeaks, 1,559 other sites were carrying its content in full as of Friday. WikiLeaks also says it has provided encrypted copies of all 251,287 documents to at least 100,000 people and that it will provide the 256-digit passcode to open the files if "something happens" to Assange or WikiLeaks is somehow prevented from operating.

Any U.S. criminal action also is likely to run up against difficulties winning Assange's extradition from Europe. Experts agree European courts will be hesitant to hand Assange over without clear evidence against him of violating U.S. law.

Despite the obstacles, Smith, the former CIA general counsel, thinks the U.S. must prosecute.

The sheer volume of documents makes it likely that the government can find at least one example that proves Assange damaged U.S. national security, he said. He said the fact that WikiLeaks solicits those with classified information to provide it to the website shows an ongoing effort to harm U.S. national security.

To not prosecute, given the number of documents, would be a bad precedent, he said.

"The U.S. government, I just don't see throwing up their hands and saying there is nothing we can do," Smith said. —

Other WikiLeaks developments

Vatican 'offended' by Irish probe • Newly released U.S. diplomatic cables indicate that the Vatican felt "offended" that Ireland failed to respect Holy See "sovereignty" by asking high-ranking churchmen to answer questions from an Irish commission probing decades of sex abuse of minors by clergy. That the Holy See used its diplomatic-immunity status as a tiny city-state to try to thwart the Irish fact-finding probe has long been known. But the WikiLeaks cables, published by Britain's The Guardian newspaper on Saturday, contain delicate, behind-the-scenes diplomatic assessments of the highly charged situation.

Uribe compares Chavez threat to Hitler • Former Colombian President Alvaro Uribe was ready to order troops to cross into Venezuela and capture rebel leaders in 2008, according to a secret U.S. document released by WikiLeaks. Uribe also told visiting U.S. congressmen, according to another newly released document, that Venezuelan President Hugo Chavez represented a threat to South America similar to the one Adolf Hitler once posed to Europe. Uribe believed "the best counter to Chavez … remains action — including use of the military," according to a Jan. 28, 2008, report from the U.S. Embassy in Bogota.

U.S. fears terror attack in Spain • The U.S. grew so concerned about the possibility of an Islamist terrorist attack in Spain in 2007 that it proposed setting up a counterterrorism center in the country's second-largest city, according to confidential cables. The three U.S. cables, released by WikiLeaks on Saturday, say the U.S. planned the "counterterrorism, anti-crime and intelligence center" at its consulate in Barcelona. The goal was "combating the target-rich environment of terrorist and criminal activities centered in the region," which has a "presence of over 1 million Muslims," a 2007 cable says.