On November 30, the North Atlantic Treaty Organization (NATO) called international whistle-blower organization Wikileaks’ release of sensitive diplomatic cables “illegal, irresponsible and dangerous.” U.S. Senator Dianne Feinstein (D-Ca) wrote an impassioned op-ed in the Wall Street Journal arguing that WikiLeaks founder and Editor-in-Chief Julian Assange “intentionally harmed the U.S. government” and “should be vigorously prosecuted for espionage.” And Australian Prime Minister Julia Gillard called the leaks “…a grossly irresponsible thing to do and an illegal thing to do.”
Attorney General Eric Holder
Now, after much speculation (and some heavy signaling on the part of Attorney General Eric Holder) it seems Wikileaks (now hosted at www.wikileaks.ch, after being removed from the servers of its U.S. host, EveryDNS) is an official target of the United States Department of Justice. CNN reported Monday that a secret grand jury was convening in Alexandra, Virginia “…to consider criminal charges in the WikiLeaks case,” as Assange’s attorney, Mark Stephens, recently told Al-Jazeera news network. On Thursday, Dec. 16, the U.S. House Judiciary Committee will hold a hearing on WikiLeaks’ actions in consideration with the 1917 Espionage Act. And legislation is already beginning to circulate in Congress that would effectively criminalize the publishing of “military or intelligence community informants.”
Even after all this, some legal experts, journalists, and even spokespeople for the DOJ itself remain skeptical that WikiLeaks can be prosecuted under any current U.S. law. After months of chewing over the issue, the question lingers: Is WikiLeaks’ publishing of classified documents actually illegal?
The short answer: Maybe, but probably not.
Wikileaks supporters at a rally in Sydney, Australia
The Espionage Act of 1917 makes it a felony to transmit “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” However, the act does not make it a felony to publish said illegally obtained information — if this were the case, then the New York Times and other U.S. media outlets could be similarly prosecuted under the law for simply reporting material contained in the leaks. Additionally, legal precedent that has since expanded and further defined First Amendment “free speech” press protections makes this move even more difficult. As the nonpartisan think tank Congressional Research Service, in its recent report on secrecy law in the United States, 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. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.”
Daniel Ellsberg speaking to the press at the The Pentagon Papers Trial, 1973
In the infamous New York Times Co. v. United States case, the Supreme Court ruled that the government had no right to censor the publication of the then-classified Pentagon Papers, though President Nixon claimed the executive authority to do so at the time. Though the government argued for “prior restraint” at the time, the principle is the same. The oft-quoted Section 793, which was used by the government to pursue an injunction against the Times, does not construe “communicate” to mean “publication.”
Senator Joe-Lieberman, I-CT, Co-Sponsor of the SHIELD Act
And even Section 798, which does contain the word “publish,” only applies to narrow categories of information: cryptography, signals communication intelligence, and foreign governments’ communications. [The proposed SHIELD (Securing Human Intelligence and Enforcing Lawful Dissemination) Act, however, would amend this section to include "human intelligence" sources.]
794 might be an attractive candidate, although it still requires the government to prove that WikiLeaks had the “intent that the same shall be communicated to the enemy” — again a difficult angle to pursue considering extant legal precedent regarding press freedoms.
Perhaps most obviously, Assange isn’t an American and Wikileaks isn’t an American organization. That same CRS report states:
“Because espionage is recognized as a form of treason, which generally applies only to persons who owe allegiance to the United States, it might be supposed that Congress did not regard it as a crime that could be committed by aliens with no connection to the United States.”
As a media entity and a foreign organization, Wikileaks owes no allegiance to the United States. Even so, the U.S. would have a more-than hard time attempting to convince another country to send him here because, as the Washington Post writes, “most nations’ extradition treaties exempt crimes viewed as political” — and espionage “has been recognized as a quintessential example of a purely political offense,” the CRS report’s section on “Extradition Issues” maintains.
A “Free Bradley Manning” Protest in Virginia
It would seem that the DOJ’s best bet, according to the New York Times, would be to try to prove that Assange was involved in a conspiracy to help the original leaker (suspected to be 23-year-old army intelligence analyst Bradley Manning) get the information in the first place, thereby “skirting the question of whether the subsequent publication of the documents constituted a separate criminal offense” and avoiding the potentially messy debate over whether all U.S. news organizations reporting the leak are liable to be prosecuted. Another idea is to convict WikiLeaks with “trafficking in stolen government property,” although legal scholars contend that the documents weren’t technically stolen, but “reproduced.” They could also possibly dispute its status as a media entity, which would remove it of press protections.
The only real person in probable violation of U.S. law is Manning, who, as a member of the military, is legally obligated to keep the government’s secrets. Currently in his seventh month of solitary confinement, he faces a 52-year jail sentence and a court martial. What will happen to Assange — who was granted bail yesterday in London but remains in custody due to a pending appeal by the Swedish court — and Wikileaks, however, remains to be seen.