At one level, the United States has responded to the Wikileaks release of State Department cables by tightening their internal operations, basically looking at their own insufficiencies in protecting information. I think they have an unrealistic expectation because of the inherent insecurity of information in a technological age, but at least they’re pointing the finger in the proper direction.

At the other level, the US is straining to find a suitable law with which to charge Julian Assange, who is not an American citizen and who did not engage in this particular practice on American soil.

Federal authorities are investigating whether WikiLeaks founder Julian Assange violated criminal laws in the group’s release of government documents, including possible charges under the Espionage Act, sources familiar with the inquiry said Monday.

Attorney General Eric H. Holder Jr. said the Justice Department and Pentagon are conducting “an active, ongoing criminal investigation.” Others familiar with the probe said the FBI is examining everyone who came into possession of the documents, including those who gave the materials to WikiLeaks and also the organization itself. No charges are imminent, the sources said, and it is unclear whether any will be brought.

This really isn’t much of a case. First off, they’d have to get Assange arrested abroad and extradited to the US, which isn’t terribly likely. In fact, just today Ecuador offered him a home. The US doesn’t seem to have much problem with kidnapping people they don’t like off a foreign street, but that’s approximately what it would take.

Then there’s the use of the Espionage Act. I can see using it on Bradley Manning, but if they use it on Assange, they’d basically have to use it on every newspaper who reprinted any part of the cables, since they all would be in just about the same position. They’re protected by First Amendment press freedoms, but Assange would surely argue the same. The law has never been used in this way on someone who published classified documents that they obtained from a source. The Supreme Court allowed the far more sensitive Pentagon Papers to be published.

Third, the Espionage Act states that anyone with “unauthorized possession to information relating to the national defense” which could harm the United States could be prosecuted upon publication. The White House, State Department and everyone else has spent the last day saying these cables are no big deal, that they reiterate things people already knew, and that the strong bonds of diplomacy will allow them to weather this without incident. Surely that all would make it into a hearing.

Legal experts seem to agree that there’s not much of a case here. That’s why I’m disturbed by these comments from Eric Holder, which sound extremely familiar:

“To the extent there are gaps in our laws,” Holder continued, “we will move to close those gaps, which is not to say . . . that anybody at this point, because of their citizenship or their residence, is not a target or a subject of an investigation that’s ongoing.” He did not indicate that Assange is being investigated for possible violations of the Espionage Act.

This sounds like a job for John Yoo.