Should the Media Be Prosecuted for Espionage, Too?

by Kevin Jon Heller

That’s the excellent question asked by Ian, one of the commenters on Roger’s recent postThe 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!

http://opiniojuris.org/2010/11/30/should-the-media-be-prosecuted-for-espionage-too/

15 Responses

  1. Response…This is a very interesting idea, because the media can play such an important part in the stories it reports.  This question made me think of the recent story released about all the individuals that have asked to U.S. to take action against Iran and the weapons they are developing.  The story released specific names of people that have asked for something to be done.  I’m not sure that counts as espionage, but it could have some terrible repercussions for the people’s names that were released.  If they asked the U.S. to intervene in confidence, and then had their names released, they might now be worried about Iran taking action against them.  It seems to me that now it is in the open that they desire the U.S. to attack, they could possibly be in danger, or be treated badly because of their actions.  Did the story leaking their names put them in danger?

  2. IMO you can make a comparison to insider trading. Who are liable…insiders, tipees and misappropriators.

    Wikileaks is clearly not an insider they are anything but “in” and presumably have no employment or other connection to the U.S. government.

    Tippee?  There is no evidence that Wikileaks received any of this by someone who wished to financially benefit Wikileaks and no evidence that Wikileaks gave anything in return.

    Misappropriate?  Wikileaks was not in a position of trust and therefore violated no trust.

    Wikileaks does use an anonymous electronic drop box – in a sense that is soliciting but is it really soliciting in the sense of going to people directly and asking for the info? Further, Wikileaks is not presumably trading on this info.
    If I were on a jury I am not sure I would vote to convict.

  3. Kevin,

    The Espionage Act is notoriously confusing and therefore your question is critical.  Based on my reading of the Espionage Act, I think it depends on numerous factors. 

    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.

    BTW, the best (but now dated) summary of the Espionage Act is by Harold Edgar and Benno Schmidt, available here.  Steve Vladeck is one of the few scholars who has analyzed the Espionage Act in recent years, see here.

    Roger

  4. Kevin,

    Two more quick responses.  First, let’s assume you are correct that major media outlets are likewise engaging in unlawful conduct in violation of the Espionage Act.  Much to your chagrin, you may be correct about this.  If so, then the matter would be left in the sound discretion of the prosecutors.  (see discussion here). Obviously, the United States is going to weigh in the balance the wisdom and propriety of prosecuting the principal malfeasors–Private Bradley Manning and Julian Assange–and treat them differently from other media outlets down the chain of dissemination that are less culpable. 

    Second, although I didn’t raise it in my earlier post because of space concerns, there is an additional provision of the Espionage Act, section 793(g), dealing with conspiracy to violate the statute.  Obviously it was Assange and Bradley Manning that engaged in the conspiracy that led to the criminal misconduct.  As best we can tell, the media outlets you mention were not conspiring with Manning.

    Roger

  5. Professor Heller,

    Is there a point at which a reporter such as Assange becomes a combantant?  Obviously, embarrassing the US government is not, and should not, be sufficient.  But exposing Iraqi collaborators to potential violence, that seems to begin to at least push the bounds of combantant status?

  6. Roger,

    I don’t see how the conspiracy provision distinguishes WikiLeaks from the newspapers.  They might not have conspired with Bradley Manning to violate the statute, but they certainly conspired with WikiLeaks to do so!

    As for your first point, you are of course correct — no prosecutor would ever charge the newspapers.  But that does not mean they are any less guilty of espionage.  Is there a sound legal or moral justification for prosecuting WikiLeaks but not the newspapers?  Why are the newspapers “less culpable” than Assange, given that they had to have known that, by printing the documents, they would be giving them a far larger audience than WikiLeaks could ever do on its own?  Why, if what Assange did was espionage, is it okay for them to knowingly facilitate that crime? And doesn’t it matter that the newspapers published at least some of the documents first — a decision motivated, no doubt, by the recognition that they would sell fewer papers or get fewer clicks if they waited until WikiLeaks posted them on its website?

  7. NSD,

    I don’t see how anything WikiLeaks has done could qualify as direct participation in hostilities, at least as that concept is understood in international law.  That said, I suppose one could argue that Assange could pose a sufficient security risk to the US that he could be lawfully detained despite his civilian status.  See Ryan Goodman’s useful essay here.

  8. Much ado for nothing!,
    I have had very high expectations on the latest revelations by Wikileaks and perhaps my comments isn’t directly about legal consequences of the release under the Espionage Act and if and how such release injuries the United States. My impression is that the “release” isn’t really a release with the United States simply having had the opportunity to “warn off”, through moderate, not sufficiently accrual and generic comments, some of the villains they usually work with. If U.S. diplomats really wrote what we can now read, they should be fired for what they had not written and should have.
    In any case his 5 minutes of sincerity (or deception …) can be beneficial to further diplomatic work.
    I’m also doubting about the fact that some of the targeted individuals could have bid to prevent some specific release (…).

  9. Not to forget to prosecute the following guys:

    The foreign and U.S. leaders for inciting to crime of aggression by asking for a war with Iran.
    The U.S. government for bribing foreign leaders.
    The U.S. government for spying on the U.N.
    The U.S. government for killing civilians in Yemen and elsewhere.

  10. Kevin,

    On conspiracy, I think it does make a difference that Assange was conspiring with Manning, whereas the major media outlets were one degree removed.  Assange is a co-conspirator in Manning’s crime, whereas in your estimation the media outlets are co-conspirators in Assange’s independent crime.

    On moral equivalency, I don’t think there is any question that Assange is more culpable than the major media outlets.  I think the New York Times would be shocked at any suggestion that Assange and Keller are morally equivalent.  (Assange would also be outraged at the suggestion that he is just like the rest of the press). 

    We have never seen anything like Wikileaks in the history of the press.  Their goal is not to report newsworthy information.  Their goal is to expose government and business secrets, period.  There is no filter with Assange.  He knows he is different from the regular media, living life as a fugitive from the law without a stable address or cellphone. 

    Governments and businesses simply cannot function effectively if Wikileaks continues in its current format.  Diplomats will no longer trust that what they say in private to one another will remain confidential.  How are governments supposed to track terrorists, or work with undercover agents from other governments to prevent nuclear, biological, or chemical weapons, or stop narco-trafficking if Wikileaks continues down its current path?

    Roger

  11. Roger,

    Do you have any evidence that Assange conspired with Manning to have Manning steal the information?  I have never seen anyone allege that, much less provide evidence of it.  They conspired to release the information to the public — the alleged “espionage” on WikiLeaks’ part — after Manning stole it, which is exactly what Assange and the newspapers did.

    It is also incorrect to say that “there is no filter with Assange.”  He offered on more than one occasion to work with the US government to limit the release of documents; the US refused.  See, for example, here:

    “Despite your stated desire to protect those lives, you have done the opposite and endangered the lives of countless individuals,” Koh wrote in reply. “You have undermined your stated objective by disseminating this material widely, without redaction, and without regard to the security and sanctity of the lives your actions endanger.”

    He said the U.S government would not deal with WikiLeaks at all in determining what may or may not released.

    “We will not engage in a negotiation regarding the further release or dissemination of illegally obtained U.S. government classified materials,” wrote Koh, who is considered to be one of the world’s top experts in international law and was reportedly considered for a seat on the Supreme Court.

    Would Assange have satisfied the government’s demands? Highly unlikely. But it is still more than a little hypocritical for the government to refuse to work with WikiLeaks, demand that he publish nothing — no matter how unrelated to national security — and then accuse him of wanting to harm national security.

    By the way, I have no doubt that The New York Times would be shocked to hear that it is as morally culpable as Assange.  But that doesn’t mean it’s not. As far as I can tell, the only relevant difference between the two is that The New York Times was far more pliable than Assange.

  12. As for a conspiracy, Manning is the source and Wikileaks is the publisher.  The Wikileaks website (currently down) gives detailed information on how to provide documents through encrypted websites and secret drop boxes.  It offers tips on how to use your computer, cellphone, pay phone, and post office to avoid detection.  It tells you how to label your packages to avoid government interference.  Manning has confessed to providing classified documents to Wikileaks and Assange boasts about Wikileaks’ role in this interview.  It should be relatively easy to establish that Assange did “acts to effect the object of the conspiracy” within the meaning of the statute.

    As for filtering, if there is any doubt that Assange is not filtering, check out Bill Keller’s discussion from July 2010 on the Daily Beast.  Keller excoriates Assange for publishing the names of Afghan informants “who could now be targeted for reprisals by insurgents.” He took great pains to distinguish the New York Times and its filtering process from Wikileaks’ unfiltered process, which reflected a wanton disregard for the consequences of its actions.  As Keller put it, Assange’s “decision to release the data to everyone, however, had potential consequences that I think anyone, regardless of how he views the war, would find regrettable.”

    Roger

  13. Roger,

    Nothing in the interview to which you link indicates that Assange in any way conspired with Manning to steal the documents, which is what is necessary to distinguish Assange from The New York Times in terms of conspiracy.  Providing potential whistleblowers with information they need to turn over sensitive documents to WikiLeaks does not create an agreement between WikiLeaks and potential whistleblowers to illegally obtain documents, just as posting bomb-making information on the internet does not create an agreement to make bombs between the poster and anyone who follows his advice.  (Nor is either even aiding-and-abetting.)

    That said, I have no doubt that Assange conspired with Manning to publish the documents — to commit espionage, if that is what you think it is — once he received them from Manning.  The problem I have with people who are angry at WikiLeaks and not at The New York Times is that the latter did exactly the same thing with Assange.  The only difference is the source of the illegal documents, which has no bearing whatsoever on whether someone is guilty of espionage.

  14. By the way, there is considerable doubt — Keller’s self-serving statements aside — that Assange is not filtering.  Read this McClatchy story, which notes that “Unlike the release earlier this year of intelligence documents about the war in Afghanistan, when WikiLeaks posted on its website unredacted documents that included the names of Afghan informants, WikiLeaks agreed this time not to release more than 250,000 documents because they hadn’t been vetted by the U.S. government.”

  15. I’ve quoted you and linked to you here.

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