Wikileaks and the Espionage Act

by Roger Alford

Harold Koh has warned Wikileaks of the dire consequences to the United States resulting from the publication of over 250,000 classified documents. But I doubt that Julian Assange and Wikileaks cares much about the damage done to our nation from this breach. What they presumably do care about is criminal prosecution. As Marc Thiessen at the Washington Post argues today, it seems fairly clear that Assange has violated the Espionage Act. Read the key provisions for yourself:

Whoever, for the purpose aforesaid [e.g., obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation], and with like intent or reason to believe, copies, takes, makes, or obtains, … any … document, writing, or note of anything connected with the national defense; or

(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, … or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or….

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, … or note relating to the national defense, or 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; ….

Shall be fined under this title or imprisoned not more than ten years, or both.

Given Wikileaks’ multiple breaches of the Espionage Act in recent months, why oh why has it taken so long for Obama, Holder, Clinton, Koh and company to bring criminal charges against Assange? Can anyone with expertise in this area offer a plausible explanation for their stunning failure to take action?

http://opiniojuris.org/2010/11/29/wikileaks-and-the-espionage-act/

12 Responses

  1. For more on Wikileaks and the Espionage Act, see Julian Ku’s post from three months ago.  When is the Obama Administration going to take this threat seriously?

  2. Would filing criminal charges be and effective response? Since Assange is not a United States citizen, it would be difficult to extradite and prosecute him. Assange is notoriously nomadic and difficult to locate, and has indicated he will not travel to the United States of his own accord. Also, it seems that Assange has to some degree become an anti-establishment folk hero. While some question the legality of his actions, others, both internationally and domestically, have heralded his actions as bringing about exactly the sort of transparency that is needed in American government. Regardless of one’s view on the matter, criminal charges would certainly be extremely controversial both at home and abroad.   

  3. Is the Espionage Act valid extra-territorially? Or will the exercise of jurisdiction rest upon a principle such as the effects doctrine?

  4. My understanding is that while § 793 has some extraterritorial application (see the useful CRS study available at http://www.fas.org/sgp/crs/misc/94-166.pdf), that is on the basis of nationality and so not engaged here – anyone else?

  5. Gautam,

    I don’t understand your question.  The unlawful publication occurred on the Internet–within the United States and abroad. 

  6. From the point of view of foreign national, it seems to me totaly absurd to prosecute for espionage somebody who does not have any legal obligation of loyalty to the USA.

    The sense of absurdity is even increased by the fact, that from the aforemention quotes of the Espionage Act, it seems rational to conclude that majority of journalists who took over the information from wikileaks and published it, should be held responsible as co-perpetrators.

  7. Ian,

    The harm is not just to the United States.  If you read the news reports, this is having shock waves throughout the international diplomatic community.  Take almost any major issue or any major country and the unlawful publication of classified information has been implicated.  Relations that Saudi Arabia has with Iran, or that China has with North and South Korea, or that the Europeans have with one another, all are impacted by these leaks.    

  8. Here is an interesting conjecture from a law professor friend who has requested anonymity:

    “With regard to your post on the Espionage Act and Wikileaks, you assume (I think) that the Justice Department has not taken any action. Though I have no inside knowledge regarding this particular case, in a situation such as this, in which the alleged wrongdoer is abroad and quite mobile and furtive in his movements, one would expect that any investigation and grand jury proceeding would be conducted in secret. Further, any indictment would be sealed. All this would be done to maximize the chances of arresting the fugitive. (This is one of the reasons why Justice never comments on the existence of an investigation.) In other words, I don’t think we can assume that no law enforcement action is being taken in this matter. My guess (and it is only a guess) is that the wheels are turning. Whether he will be arrested and extradited, of course, is another matter.”

  9. Roger-

    We really don’t need to guess about this.  Eric Holder has publicly confirmed that DoJ and the Pentagon are involved in active investigations.  And, as Jeff Smith commented in the Washington Post, Koh’s warning to Assange is just that:  A shot across the bow, with more to come.  (It also may have provided Assange with enough information about the unlawful nature of his possession of the documents to assist with scienter requirements.)  Here’s a link to the full piece:
    http://www.washingtonpost.com/wp-dyn/content/article/2010/11/29/AR2010112905973.html?hpid=topnews

    Choosing between  (a) the USG is doing nothing to address through criminal and other means the Wikileaks, and (b) the USG is throwing its full investigatory, intelligence and, perhaps, (if you have been reading about the cyber attacks on Wikileaks), military weight at shutting down Wikileaks and going after its operators, I would go with the (b).   Of course, DoJ needs to be careful about any First Amendment implications of its investigations, which adds some complexity.

    I’m not sure I see a “stunning failure to take action” here.

    Peggy

  10. Peggy,

    The reason I used that strong term is because this is the third major breach of security by Wikileaks in 2010.  The Obama Administration is now finally threatening criminal prosecution, but irreversible damage to our diplomatic relations has been done. 

    As for Koh’s letter, one of the best things about it is that it was sent just before Wikileaks published the classified documents, making it much easier to establish in a criminal proceeding that Assange had “reason to believe” that it would harm the United States.  But it should have been sent to Assange months ago.

    Moreover, as Floyd Abrams argued today on NPR, Assange publicly stated in a June New Yorker profile that his goal is to “bring down many administrations that rely on concealing reality—including the US administration.”  Thus, the intent to cause harm to the national security interests of the United States has been known for months.  Even Abrams argues that Assange has talked himself into the Espionage Act.

    Roger


  11. Although Assange’s anti-government rhetoric seems problematic, I am a little concerned that we have simply skipped over whether Assange’s action’s carried the requisite intent to bring a cause of action under the Espionage Act. He stated that his goal was to “bring down many administrations that rely on concealing reality-including the US administration” but it is not clear that his goal was to interfere with military operations. If I remember correctly, he did contact the US military, asking which names they wanted protected, before one of his previous postings. It seems his principle objective was to prevent public deception rather than hinder the war effort.

    Furthermore, I am not sure that that the Supreme Court, based on its holdings in Brandenburg v. Ohio and NY Times v. US would agree that his First Amendment rights would be trumped by the publishing of classified information. Brandenburg has cast doubt on previous espionage holdings by replacing the “clear and present danger” standard with the “imminent lawless action” standard. Here, the government would have a difficult time showing that Assange intended to incite imminent lawless action.

    Likewise, NY Times held that government cannot restrict the publication of classified info…the burden on the government was too heavy to restrict the essential function of the press (enlightening the citizenry).  Despite the fact that the court was dealing with a prior restraint, it’s still not clear (based on the Court’s 6 concurrences in supporting the superiority of the First Amendment) that the court would allow government to continue to punish First Amendment protections that did not rise to this level set forth in Brandenburg.

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