2010-12-10 WikiLeaks and the Espionage Act, part 2 [Update 1]

(Part one of this series is available here. Please also see WikiLeaks v. United States: The Pentagon Papers redux?)

Today, Jennifer Robinson, one of the lawyers for Julian Assange, told The Guardian that the US government may be about to press charges against Julian Assange under the Espionage Act. She said that the legal team had heard from "several different US lawyers rumours that an indictment was on its way or had happened already, but we don't know". Ms Robinson told ABC News that "Our position of course is that we don't believe it (the Espionage Act) applies to Mr. Assange and that in any event he's entitled to First Amendment protection as publisher of Wikileaks and any prosecution under the Espionage Act would in my view be unconstitutional and puts at risk all media organizations in the U.S."

Rumours about the possibility of Julian Assange having been indicted by a grand jury, whose proceedings are secret, have been circulating for a while. The Christian Science Monitor had a few days ago quoted Stephen Vladeck, an expert in national security law at American University, who said that an empaneled grand jury could have already been considering the case. "We wouldn’t know what they’re doing until the whole thing is concluded," he said. The Monitor also quoted CNN legal expert Jeffrey Toobin, who said "I would not be at all surprised if there was a sealed arrest warrant currently in existence."

Prominent civil rights attorney Harvey A. Silverglate, who worked on the Pentagon Papers case, also raised the possibility in an interview with NECN, while also pointing out that prosecution would be extremely difficult, and for many reasons not in the interest of the United States government.

As we previously covered, the legal consensus appears to be that a prosecution under the Espionage Act would be both difficult and dangerous for the United States, notably with regards to First Amendment protections (also see: EFF, ACLU.)

The US Congressional Research Service published on December 6 a report titled "Criminal Prohibitions on the Publication of Classified Defense Information":

"This report identifies some criminal statutes that may apply, but notes that these 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. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether suspected persons may be extradited to the United States under applicable treaty provisions." (emphasis ours)

The report's conclusion states: "Thus, although unlawful acquisition of information might be subject to criminal prosecution with few First Amendment implications, the publication of that information remains protected."

Various US government officials have recently been attempting to make the case that WikiLeaks is not a media organization, and that Julian Assange is not a journalist. It needs to be pointed out that Julian Assange is a member of the Australian Media, Entertainment and Arts Alliance, which has issued a statement of support. Also, as many journalists and legal experts have made the case, WikiLeaks, as a publisher, is, in fact, a media organization (e.g., Mathew Ingram: Like it or not, WikiLeaks is a media entity. Please also see our archives for the ten-part "Journalists in defence of WikiLeaks" coverage series and statements from various media organizations, including the International Federation of Journalists and Reporters Sans Frontières).

Celebrated Pentagon Papers whistleblower Daniel Ellsberg was interviewed earlier today on Democracy Now! about WikiLeaks, the possible use of the Espionage Act, and calls for prosecution and extra-judicial action against Julian Assange. "If I released the Pentagon Papers today, the same rhetoric and calls would be made about me," Mr Ellsberg said. "I would be called not only a traitor — which I was then, which was false and slanderous — but I would called a terrorist.[...] Bradley Manning and Julian Assange are no more of a terrorist than I am, and I am not."

Mr Ellsberg noted that "We have an act of free speech, of free press, of informing the public, an act in search of a crime, in search of a law that would call it criminal. No one had ever been prosecuted for what I had done then, revealing top secrets. There had been many leaks in the past, then as now, and no one had ever been prosecuted. I was the first. The act they found was the Espionage Act, which was passed in 1917, was never intended to work as an Official Secrets Act, as in England, which would criminalize any release of classified information. But they tried it on me."

He continued: "Well, in this case, as in the Pentagon Papers, I do give the New York Times credit for working with these materials and presenting material to their readers. And in fact, there really—if they find a crime, or if they invent a crime or pass a crime—criminal law that would cover WikiLeaks, it will cover the New York Times, and you, Democracy Now!, and anyone who presents news that in part reflects leaks, unauthorized disclosures from within the government. Actually, the wording of the Espionage Act, which, as I say, was not intended for this purpose, but the wording of it is so broad that it applies to readers of this classified information.[...] We’re in an absurd position here with a close down of public discussion of official matters, very similar to that of China. In fact, I even wonder whether there’s a rule that absurd in China. And that’s the kind of information system, I think, that our leaders aspire to, and have for a long time."
(Watch the video.)

Former federal prosecutor Baruch Weiss wrote an analysis for The Washington Post, titled Prosecuting WikiLeaks? Good luck. He makes his argument in four points:

1. There is no general law making disclosure of classified information a crime.
"What law did Assange violate? It will surprise many that there is no statute making it illegal to reveal classified information. There are statutes that criminalize the disclosure of very specific types of classified information, such as the identity of a covert operative (think Valerie Plame) or 'codes, ciphers or cryptographic systems.' But there is no catch-all law that simply says, 'Thou shalt not disclose classified information.'"

Mr Weiss also argues that Julian Assange "can make the department's case especially difficult" because of the correspondence he initiated with the State Department regarding document redactions, before the documents were made public, and the State Department's reply.

2. The First Amendment still matters.
"The First Amendment, of course, protects both freedom of the press (yes, WikiLeaks is the press) and freedom of expression. That is one reason Holder is not investigating this newspaper or the New York Times, even though both are publishing extensive details from the cables: It is the Justice Department's practice to refrain from bringing leak indictments against traditional media outlets.

Holder may feel emboldened to move against WikiLeaks because it does not have the look or feel of traditional news media. Still, Assange can rely on the courts to be vigilant in protecting his First Amendment rights and affording him the same protection that traditional media enjoy."

3. More secrets would have to be disclosed at trial.
"It is very difficult to prosecute a leak without disclosing additional classified information in the process. After all, how does the government convince a jury that releasing a cable's contents damaged national security?"

4. The damage is hard to assess.
"In a prosecution of Assange, his defense would argue vigorously that prior assessments of harm due to leaks have proven over time to be wrong." Mr Weiss goes on to quote Defence Secretary Gates on the Cablegate impact: "Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest."

He concludes: "If Assange is ultimately charged with disclosing information that is potentially damaging to national security, Eric Holder now knows who Assange will call as his first witness: the secretary of defense."
(Read the full article.)