------------------(Congressional Research Service)Criminal Prohibitions on the Publication of
Classified Defense Information
Jennifer K. Elsea
Legislative Attorney
December 6, 2010[snip]Conclusion
[snip]
The Supreme Court has stated, however, that the question remains open whether the publication of unlawfully obtained information by the media can be punished consistent with the First Amendment. Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected. Whether the publication of national security information can be punished likely turns on the value of the information to the public weighed against the likelihood of identifiable harm to the national security, arguably a more difficult case for prosecutors to make.
There are several things that folks forget here:
1. A jury trial. You have to find 12 jurors who will agree to convict. Even here on FR it is about an even split on whether Assange is guilty of anything. One juror holding out and it is a mistrial.
2. The prosecution would have to provide testimony as to what information caused actual harm to national security, and the defense gets to cross examine and provide rebuttal witnesses. There is little information I have seen that falls into that category and I think that the government would look ridiculous when it made its arguments.
3. The problem of overclassification. Even if some of the information is legitimately classified because it would do harm to national security, the huge volume of what we have seen so far is not. One of the real no no's in the classified world is mixing classified and unclassified information because it makes the protection of the classified information hard to protect. All the defense has to show is that much of the information was classified to avoid embarassment to the government, or for some other illegeitimate reason, and there goes the ball game.