The WikiLeaks story and criminal liability under the espionage laws

By Guest Contributor
August 26, 2010

The following is  a guest post by Gilead Light, a member of the white collar criminal defense group with law firm Venable LLP in Washington.  He has worked on numerous criminal defense representations, including a jury trial on charges of espionage and other national security violations.

WASHINGTON, DC – The legal pursuit of WikiLeaks, a trans-national website devoted to publishing secret government documents worldwide, is reaching a boiling point. After publishing tens of thousands of classified U.S. documents revealing details of the war in Afghanistan, the group is now promising to publish more of the same.

The alleged actions of the leaker, reputed to be U.S. Army PFC Bradley Manning, are likely violations of the U.S. Espionage laws. Manning was already charged under the Espionage Act with the submission to WikiLeaks earlier this year of a classified video showing the death of two journalists in Iraq.

But what about WikiLeaks and its founder Julian Assange? Is a website that actively encourages people to leak classified information immune from prosecution? The answer is more complicated than one may think, largely due to the jumbled and archaic system of laws that currently protect classified information and criminalize its dissemination.

There is no clear answer as to whether WikiLeaks and Assange are liable for espionage. Precedent, most notably the Pentagon Papers case, would seem to indicate that WikiLeaks is protected from publishing leaked documents by the First Amendment. The government rarely attempts to prosecute a member of the media for publishing the fruits of someone else’s leaks.

But is WikiLeaks truly part of the “media?”  Can a website that devotes itself exclusively to leaking documents compare itself to the New York Times? Clearly the Justice Department is reexamining whether or not Assange and his website can face criminal prosecution under U.S. law.

There is wording in some Espionage statutes suggesting that anyone who “publishes” information that relates to the national defense is liable for an espionage act violation. So even if WikiLeaks qualifies as “media,” Assange still might not be protected by the First Amendment. Even in the Pentagon Papers opinion, Supreme Court Justice Byron White stated that in certain situations, the publication of national defense information could subject media outlets to espionage prosecutions, despite First Amendment protections.

Furthermore, could the fact that Assange actually solicits these leaks translate into liability for conspiracy to commit espionage? Hypothetically, if any evidence is uncovered that Assange, after receiving the initial Iraq video showing the death of these journalists, actually solicited additional information from Bradley or anyone else and encouraged them to leak, then he may face conspiracy liability. This would of course be difficult to prove, unless Manning agreed to testify.

Add to this the numerous jurisdictional problems posed by the fact that Assange lives overseas, and one can be sure that successful prosecution of Assange would be challenging.

If Assange and WikiLeaks are not liable for espionage, should they be?

For American politicians and the intelligence world, the question can be expanded: If Assange and WikiLeaks are not liable, should they be? This question begs a closer look at the current system of laws protecting National Security information. As U.S. Senator Ben Cardin said in May during Senate hearings on the topic, the current statutory framework is an outdated “patchwork” that has failed to change along with current technology and the digital information age.

As relics of WWI and the Cold War era, the Espionage laws generally target those who seek to disclose classified information to aid a foreign government, or who have reason to believe that the information will either injure the United States or aid a foreign goverment.

Most commentators agree that the current Espionage laws can still effectively punish and deter the classic nation v. nation spy cases, as proven by the successful prosecutions of Robert Hansen and Aldrich Ames. But problems arise when the government is faced with an actor who discloses classified information for other reasons, or to someone other than a foreign agent. This is the problem facing the government in prosecuting WikiLeaks.

The WikiLeaks case highlights the central flaw in espionage laws, namely that they are grossly outdated, drafted in an age when all information was tangible and not electronic.  The laws never envisioned anything like the Secure Internet Protocol Router network (SIPRnet) that thousands of government personnel across the globe routinely use to access troves of classified documents. Manning is alleged to have accessed SIPRnet, which is essentially a private, classified world-wide-web, to find documents to leak to Wiki.

The other problem stems from inconsistencies in the various statutes criminalizing the misuse of national security information. Some statutes refer to materials “relating to the national defense” (which sometimes, but not always, refers to information deemed classified by the government). Other statutes refer only to information actually marked classified. Some statutes criminalize giving information to an agent of a foreign government, others only to those “not entitled to receive” the information.

WikiLeaks would argue that, no matter the language in the statute, it would enjoy First Amendment protection from all prosecutions. Assange considers WikiLeaks a whistleblower protection intermediary. Rather than leaking directly to the press, and fearing exposure and retribution, whistleblowers can leak to WikiLeaks, which then leaks to the press for them.

Ultimately, if Congress wants to shut down WikiLeaks, it may have to draft new legislation which more explicitly criminalizes the solicitation of leaks of classified information, if that is in fact what happened. But there is still no guarantee that such a law would be upheld by the Supreme Court. An antiquated intelligence law combined with the media protection laws, may make WikiLeaks invulnerable to prosecution.

5 comments

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I would also wonder if the US would be able to do anything, considering Wikileaks isn’t based in the US on any level. From what I understand, different parts of Wikileaks are in different countries ranging from Iceland to Sweeden. I would presume that prosecution of the organization would have to be within those countries, but I may be wrong on that.

Posted by RSiferd2 | Report as abusive

The establishment is p*ssed off. The establishment should p*ss off itself. Don’t pontificate, ponder and posture — pass a law so this isn’t repeated and quit making the Wiki guys heroes.

Posted by cynicalme | Report as abusive

Whatever other arguments there are, the internet is definitely a part of the media.

NY Times has a website too.

Posted by Dafydd | Report as abusive

I’d love it if someone used Wikileaks to ‘leak’ the documents that prove that WMD’s existed in Iraq.

Wikileaks isn’t going to kill anyone. Sending troops into Iraq under false pretenses has already killed too many to justify the action. Use Wikileaks for its intended purpose, and leak the truth, so we can believe you.

Posted by CRR | Report as abusive

The internet is a medium, and everything publicly available on it is part of the media. I wonder if anyone knows whether under the Espionage Act it has to be proven that the accused intends to harm a nation, to harm that nation’s government, to harm that nation’s citizens, to help that nation’s government, or to help that nation’s citizens, which are not always the same thing. What if the accused means no harm but the leak has a negative effect? What if the leak has some negative effects and some positive effects, and how do you compare the good done to the damage done? If any damage is done, but some good is also done, to what degree does the good mitigate the damage?

Posted by USHey | Report as abusive