Steve Vladeck on WikiLeaks

Steve Vladeck on WikiLeaks

The following is a guest-post by Steve Vladeck, Professor of Law at American University.  Our thanks to him for contributing it.

The Espionage Act, the Documents/Information Distinction, and the Press

I’ve been following (with great interest) the exchange between Roger, Kevin, and those who have commented on their posts concerning Julian Assange, the Espionage Act, and the broader question of prosecuting the “media” vs. prosecuting WikiLeaks. Indeed, as Roger noted in one of his comments, I’ve written about the relationship between the Espionage Act and the press previously (I’ve also written a separate piece about the relationship between the Espionage Act and government whistleblowers).

Let me say at the outset that I wholeheartedly agree with Kevin as a pure matter of law — if the dissemination of these cables by WikiLeaks violates the letter of the Espionage Act, I have a hard time seeing how the dissemination of the same by major media outlets (or, dare I say, us) wouldn’t also fall within the terms of the statute. Indeed, 18 U.S.C. § 793(d) and (e) prohibit even the wrongful retention of national defense information, whether one disseminates it or not. The question is whether there might be some other way to legally distinguish between Assange and WikiLeaks, on one hand, and “beneficent” news outlets, on the other. And lest we put too fine a point on it, this is a very big deal; the principal restraint on the scope of the Espionage Act vis-à-vis the media has historically been prosecutorial discretion, not the Constitution. After all, the Supreme Court has steadfastly refused to give the Press Clause of the First Amendment any meaning separate from the Speech Clause, as a result of which it is virtually impossible to say that the First Amendment distinguishes between materials published by a Wiki as compared to by the Paper of Record. If the Constitution doesn’t draw such a line, mightn’t the statute?

Roger is right, methinks, to invoke Floyd Abrams’ argument that courts have read into the statute a “specific intent” requirement, and that these decisions might help the case for drawing such a distinction. Sadly, though, I fear that it’s not nearly as clear-cut as that. As Judge Ellis explained in the AIPAC case in 2006,

In addition to proving that the defendants committed the prohibited acts “willfully,” the statute imposes an additional and significant scienter requirement when a person is accused of transmitting “information relating to the national defense.” Thus, the statute . . . also requires the government to prove that such information was communicated with “reason to believe it could be used to the injury of the United States or to the advantage of any foreign nation.” . . . [T]he statute’s “willfulness” requirement obligates the government to prove that the defendants knew that disclosing the NDI could threaten the nation’s security, and that it was illegal, but it leaves open the possibility that defendants could be convicted for these acts despite some salutary motive. For example, if a person transmitted classified documents relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for “willfully” committing the prohibited acts even if he viewed the disclosure as an act of patriotism. By contrast, the “reason to believe” scienter requirement that accompanies disclosures of information, requires the government to demonstrate the likelihood of defendant’s bad faith purpose to either harm the United States or to aid a foreign government.

Just to drive the point home, as Judge Ellis explained, the disclosure of documents (diplomatic cables, for example) requires proof only of the defendant’s willfulness, i.e., that the act was done voluntarily and intentionally and with the specific intent to do something that the law forbids. That produces a much closer analogy in this case than I suspect many of us are comfortable with. (And perhaps one of many arguments for amending the Espionage Act, a topic on which I testified before Congress in May.)

To be sure, one might find it a bit strange that so much of the blog exchanges over L’Affair Assange has centered on the potential liability of the media. But I think this precise problem — the vanishingly thin legal line between Assange and the press — helps to explain why that’s been the shape of the discourse: we take it as an article of faith and a necessary baseline for a free and independent press that the government will not go after the news media for what it publishes absent the most compelling circumstances, and that, even then, there are often remedies short of criminal prosecution. To that end, no reporter, journalist, or author has ever been prosecuted for violating the Espionage Act, even though it’s not hard to identify numerous examples both recently and historically of publications that the law clearly proscribes. Indeed, prior to the AIPAC case five years ago, the government had never invoked the Espionage Act against any third-party recipient of the leaked/stolen information, focusing prosecutions entirely on the direct culprit.

Of course, going after Assange is not the same thing as going after the press politically. And that’s not an insignificant point. But it is basically the same thing legally — crossing a proverbial Rubicon that even the most secrecy-obsessed, First Amendment-indifferent administrations have consistently refused to attempt to bridge. I leave it for others to decide whether it is nevertheless the “right” thing to do; my point is just to suggest why the Assange case has precipitated this particular conversation, and not just here at OJ.

Foreign Relations Law, International Criminal Law, International Human Rights Law, National Security Law
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Kevin Jon Heller

Not surprisingly, I agree with Steve’s post.  What fascinates me is Judge Ellis’s insistence that the “reason to believe” mens rea in the Espionage Act requires proof of intent to harm; that mens rea is normally viewed as equivalent to negligence. Indeed, the US Code itself uses “reasonable cause to believe” as a synonym for negligence in 21 USC 841(c), a drug offence.

Steve Vladeck

Kevin — The Ellis opinion is remarkable on a number of levels.  He seemed deeply troubled by the government’s unprecedented use of the Espionage Act, even though its text seems clearly to apply.  I wonder if government lawyers are concerned that the same thing could happen in a hypothetical Assange prosecution… No one wants to recognize the First Amendment elephant in the room, and yet, it’s there…

Peggy McGuinness

Thanks for the informative post and the link to your testimony.  It strikes me that the ability of a third party to operate, through the wonders of technology, a parallel database of near-contemporaneous classified government documents offers a new twist and additional complications to both the scienter requirements and drawing the line between the press and unlawful dissemination.  Wikileaks is a kind of “unmediated” new media, with few parallels to the old relationships between government and the press.  Have there been any discussions in Congress about amendments to the various government secrecy criminal statutes (and well done for coralling them in your testimony!) that take into account the role of server providers/web hosts, etc.?  The State Dept can have, and has had, conversations with the editors of the NYTimes and others about documents, names, etc., prior to publication, which is part of a long tradition of coordination between the press and the USG on secrets that has facilitated a somewhat uneasy balance between the First Amendment and national security interests.  I wonder, is that era officially over?


Steve Vladeck

Hi Peggy!

To my knowledge, no one, in the various conversations to which I’ve been privy with respect to “updating” the Espionage Act, has focused specifically on the service provider/web host problem.  If anything, things (before Assange, anyway) were stuck at a more basic point: Should the Espionage Act apply at all to things that aren’t classically espionage? (And if not, should there be a new, lesser criminal offense for wrongful but non-espionage-driven disclosure of classified information?)

I suspect there might be some momentum now to have both of these conversations, and I’m not sure that’s a bad thing…