Legal experts, including a pair of former U.S. prosecutors discussed U.S. law and how it relates to the leaking of documents online by the WikiLeaks organization and its founder Julian Assange.

Their testimony on Thursday before the House Judiciary Committee indicated viewpoints weighing the possibility that a prosecution could be forthcoming. U.S. Attorney General Eric Holder of the U.S. Department of Justice has indicated that his agency is exploring the possibility.

Charging the organization or Assange with a crime under the Espionage Act would be unprecedented on various fronts, according to a former U.S. prosecutor.

Doing so would be unprecedented because it would be applying the law to a non-government official, who had no confidentiality agreement, who did not steal the information, who did not sell or pay for the information involved, who was quite out front and not secretive about what he was doing, who gave the U.S. notice and asked if the government wanted to make redactions to protect any information, and in a context that can be argued to be newsgathering and dissemination protected by the First Amendment, said Abbe David Lowell, currently a partner at McDermott Will & Emery, LLP.

If the Act applies to this disclosure, then why does it not apply as well to the articles written by The New York Times and other traditional media with the same disclosures? he said.

Kenneth Wanstein, a partner at O'Melveny & Myers, LLP, former Presidential adviser on security one-time U.S. prosecutor, said the U.S. could mount a case.

He said the key to overcoming concerns that prosecution of WikiLeaks would unduly jeopardize the constitutionally protected role of the press in the United States would be to distinguish the organization's mission and conduct from that of other news outlets.

While news organizations publish pieces of sensitive newsworthy information through investigative reporting, he said WikiLeaks facilitates disclosures of government information and works to circumvent laws prohibiting such disclosures. It also releases huge troves of leaked materials with little to no regard for current relevance or resulting damage, he said.                                                    

Edward Levi, a professor of law at the University of Chicago, said the closest scenario to the WikiLeaks release had to do with the 1970s publishing of a top secret Defense Department study of the Vietnam war.

[I]n the Pentagon Papers case, the Court held that although elected officials have broad authority to keep classified information secret, once that information gets into other hands the government has only very limited authority to prevent its further dissemination, he said.

Gabriel Schoenfeld, a Senior Fellow with the Hudson Institute said there had been no successful convictions of leakers in U.S. history and only one attempted prosecution against Chicago Tribune owner Robert McCormick during World War II. The case involved the publishing of ultra-sensitive material in a Tribune story strongly suggesting a naval victory at Midway had come about because the U.S. had been successfully reading Japanese codes. U.S. officials backed off the prosecution because they didn't want to draw attention to a story the Japanese had seemingly ignored, he said.

Schoenfeld says that the WikiLeaks material being published today is closer to the Tribune case than the Pentagon Papers case.

The secrets that are being revealed today are not historical in nature; they involve ongoing diplomatic, military and intelligence programs, he said.