Should the Media Be Prosecuted for Espionage, Too?

That’s the excellent question asked by Ian, one of the commenters on Roger’s recent post.  The New York Times, Der Spiegel, The Guardian, Le Monde, and El Pais — all are just as guilty of violating the Espionage Act as WikiLeaks.  There is no “we redacted some of the documents” defense in the Act, and prosecuting a news organization after it has published documents does not create prior restraint problems.  Moreover, given that those newspapers have a vastly wider readership than the WikiLeaks website, they have arguably harmed America’s national-security interests far more than WikiLeaks itself.  (And let’s not forget, WikiLeaks did not steal the documents; it obtained them from the person who did.  So there is no relevant difference between the newspapers and WikiLeaks in that regard; the “espionage” is simply one level removed with the newspapers.)

If WikiLeaks is really as evil as everyone claims — and I can’t recommend Glenn Greenwald’s post today on WikiLeaks hysteria highly enough — then the editors of the papers who published the government’s stolen documents should be sitting in the dock next to Julian Assange.  And unlike the shifty Assange, Bill Keller is sitting in his office in New York and can be easily apprehended.

I look forward to the bipartisan calls for his prosecution.

UPDATE: In the comments, Roger offers the following four questions regarding the potential liability of the media for espionage:

First, is the media outlet in unauthorized possession of the classified documents or is it simply reporting what others are reporting?  The statute seems to require possession of the documents to be culpable.

Second, does the media outlet have a reason to know of the harm that it will cause by the additional republication of what was originally disseminated by Wikileaks?

Third, does the republication by the media outlets cause the harm or does the original publication alone cause the harm as defined by the statute?

Fourth, according to Floyd Abrams, the courts have narrowed the Espionage Act to require some proof of intent to harm.  I doubt that the media outlets satisfy that standard, whereas it appears that Assange does satisfy that standard.

With regard to the first question, it is clear that most — and probably all — of the newspapers received the actual documents.  See here for The New York Times and here for The Guardian.  Also note that paragraph (e) in the Espionage Act does not require possession; it also criminalizes “access to” any document.  The various newspapers obviously had access to WikiLeaks’ documents, given their detailed description of the contents of those documents.

With regard to the second question, how could they not?  The newspapers had the same information as Assange concerning the US government’s belief that publishing the documents would harm national security, so if Assange had reason to know, they had reason to know as well.  Moreover, contrary to what Roger suggests, the newspapers did not simply republish the documents; in at least some cases, they published them first.  See here, for example, where The New York Times says that “[b]elow are a selection of the reports from a six-year archive of classified military documents to be published by WikiLeaks” (my emphasis).

With regard to the third question, I don’t see a harm requirement in the Espionage Act.  Paragraph (e), for example, applies to “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.”  The potential for harm seems to be all that is required.  Moreover, if harm was required, the fact that the newspapers published at least some of the documents first would mean that Roger’s comment about republication would help Assange, not the newspapers.

Roger’s fourth question is the critical one.  Assuming that courts require intent to harm — a reading that is directly at odds with the statute — it might be possible to distinguish between WikiLeaks and the newspapers on that ground.  That said, I think it is difficult to argue that Assange intended the leaks to harm US national security; if you asked him, I think he would say that he believes that a secure government is one that is not permitted to keep its citizens in the dark about national-security issues.  That, at least to me, is the better reading of the quote that Roger mentioned in the comments to his post: namely, Assange’s statement that he wants to “bring down many administrations that rely on concealing reality — including the US administration.”  But I’m sure that many readers will disagree with me about that!