Under the U.S. Supreme Court: WikiLeaks, the Espionage Act and the media

By MICHAEL KIRKLAND  |  Dec. 19, 2010 at 3:34 AM
share with facebook
share with twitter
| License Photo

WASHINGTON, Dec. 19 (UPI) -- Assuming WikiLeaks founder and operator Julian Assange is prosecuted under the 1917 Espionage Act or some other U.S. law, does the case end there?

What about all the newspapers, broadcasters, Web sites and hundreds of blogs that downloaded confidential or classified material from Assange's site? Can Assange be prosecuted in isolation, or must he been judged along with the media wave that reported the documents he made available?

If WikiLeaks didn't obtain the classified material on its own -- it was fed the material by at least one "whistle-blower" -- before posting the documents online or offering them to news outlets, how is WikiLeaks' legal culpability different from members of the major media who received the material from others and then published or broadcast it?

The only exception would be if Assange, 39, were found by U.S. investigators to have actively helped the leaker find or post the documents.

The controversy has inflamed the American political class.

One member of that class is in no doubt about what should be done. Sen. Joe Lieberman, Ind-Conn., has called for the U.S. Justice Department to investigate The New York Times for publishing some of Assange's documents.

In an interview with Fox News, Lieberman said the Times "has committed at least an act of bad citizenship. And whether they've committed a crime, I think that bears very intensive inquiry by the Justice Department."

Lieberman also said Assange should be charged with treason, The Hill newspaper reported. The senator, chairman of the Senate Homeland Security Committee, apparently was unaware that a defendant has to owe allegiance to the United States to commit treason, as opposed to espionage, against the United States. Assange is an Australian.

Actually, the Times approached the WikiLeaks material cautiously.

Assange released what he said were about 75,000 documents on the Afghan War in July, offering prime media an early look at the material. He has been in the process of releasing about 250,000 U.S. State Department cables this fall and winter.

The cables first went to foreign publications -- the Times passed on the first go-round. But as the controversy grew, the British newspaper The Guardian passed on the information to the Times, which at that point became a principal player -- or at least enough of a player to draw Lieberman's fire.

A note of warning was sounded, among others, by Benjamin Wittes, senior fellow and legal analyst at The Brookings Institution in Washington. Though he says he has no sympathy for Assange, Wittes sees a very slippery slope here, especially with the use of the Espionage Act.

Besides its vagueness, Wittes wrote on his blog LawFare, the act is exceedingly broad. It specifically targets those who spread confidential information, as well as those who obtain it in the first place.

One problem is that the act "contains no limiting principle in its apparent criminalization of secondary transmissions of proscribed material," Wittes wrote, adding: "By its terms, (the Espionage Act) criminalizes not merely the disclosure of national defense information by organizations such as WikiLeaks, but also the reporting on that information by countless news organizations.

"It also criminalizes all casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them -- in other words, all tweets sending around those countless news stories, all blogging on them and all dinner party conversations about their contents.

"Taken at its word," he said, "the Espionage Act makes felons of us all."

The White House took hilarious notice of this fact Dec. 5, when it ordered all federal employees and military service members not to look at WikiLeaks that week.

"Classified information, whether or not already posted on public Web sites or disclosed to the media, remains classified, and must be treated as such by federal employees and contractors, until it is declassified by an appropriate U.S. government authority," the White House said. "Viewing or downloading still-classified documents from unclassified government computers creates a security violation."

In other words, federal employees and the military were told not to look directly at WikiLeaks, much like the Ark of the Covenant in an "Indiana Jones" movie.

The Congressional Research Service weighed in earlier this month with its own take on the legal liability of the media vis-a-vis WikiLeaks. The CRS is the non-partisan policy research agency for Congress.

"The recent online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by The New York Times and other news media have focused attention on whether such publication violates U.S. criminal law," the summary of the CRS report said. "The attorney general has reportedly stated that the Justice Department and Department of Defense are investigating the circumstances to determine whether any prosecutions will be undertaken in connection with the disclosure."

There are U.S. criminal statutes that apply, the report said, but in the past they "have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it."

The report added, "There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship."

If the investigation implicates any foreign national -- reminding, Assange is an Australian technically on bail in England pending a Swedish charge of sexual assault, and Australia says it has no evidence he committed a crime in that country -- "whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction (by U.S. courts) and whether suspected persons may be extradited to the United States under applicable treaty provisions."

There is no indication the Obama administration wants to prosecute the media in the WikiLeaks investigation. The obstacles to such a prosecution, most particularly including the First Amendment, are enormous.

And as for pre-publication censorship, the U.S. Supreme Court firmly rejected that course in 1971. The Nixon administration lost a Supreme Court bid to prevent publication of the Pentagon Papers, a critical Defense Department inside look at the Vietnam War, in the nation's newspapers.

"Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity," the unsigned opinion in The New York Times Co. vs. United States said. Citing precedent, the high court said the government "thus carries a heavy burden of showing justification for the imposition of such a restraint."

The justices noted that a federal judge had "held that the government had not met that burden. We agree."

So both avenues appear to be blocked for the government: media prosecution and pre-publication censorship.

But assuming the WikiLeaks founder is brought before a U.S. court -- by no means a certainty -- an agile defense attorney could have a jury wondering why Assange was standing at the bar alone.

Related UPI Stories
Trending Stories