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Home / Articles / News / News /  Experts: Prosecuting WikiLeaks will be difficult
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Thursday, December 16,2010

Experts: Prosecuting WikiLeaks will be difficult

By Jefferson Dodge
Julian Assange
If they posted classified documents the federal government decides to file criminal charges against Julian Assange or other WikiLeaks employees because online, media law experts say it will be uncharted waters.

They say there has never been a case in which a third party — in other words, someone other than the individual who stole the documents in the first place — has been successfully prosecuted by the feds after circulating classified defense information.

In the most famous case touching on that issue, the 1971 Pentagon Papers case, the Supreme Court upheld the right of The New York Times to publish secret documents provided to the newspaper about the Vietnam War.

And there was a federal case filed in 2005 against two third parties, former lobbyists for the American Israel Public Affairs Committee (AIPAC), who received classified information and shared it with others, although that case was eventually dismissed at the request of the feds themselves.

Legal experts say it would be an uphill battle for federal prosecutors to win a case against WikiLeaks, since there is little case law supporting such a move. The government has long been loathe to challenge First Amendment rights afforded to the press. But they agree that the matter could spawn new laws curtailing the ability of the press to disseminate classified information, as evidenced by calls from lawmakers to close the gaps that allowed WikiLeaks to release the classified cables in the first place.

There are lingering questions. Is WikiLeaks, in fact, a media organization that should receive the full protection that has been afforded to the traditional press under the First Amendment? Would the U.S. be able to extradite Assange so that there is actually someone in custody to prosecute? Did WikiLeaks passively receive the information, or was it actively involved in negotiating for, acquiring and/ or paying for the information?

The federal government can make a stronger case against someone involved in the theft of classified documents than against a third party who simply receives them and circulates them.


The AIPAC case

In the Pentagon Papers case, the Supreme Court refused to allow prior restraint — that is, a court order prohibiting the newspaper from further publishing the contents of the classified documents. The court struck down this attempt at censoring information in advance, but there has been little case law on prosecuting media for classified information it has already published.

In the case of WikiLeaks, experts say federal prosecutors may steer clear of challenging that prior restraint precedent, and instead of attempting to keep WikiLeaks from posting additional information, they may target Assange for what his organization has done already. To do that, the most likely law to use is the 93-year-old Espionage Act.

That was the law invoked when the federal government charged former AIPAC lobbyists Steven Rosen and Keith Weissman with receiving — not stealing — classified defense information and sharing it with others. The Espionage Act prohibits the “willful” communication of “information relating to the national defense” that “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” to anyone not entitled to receive it. It also prohibits someone from willfully retaining and failing to return such information.

Abbe Lowell of McDermott Will & Emery, a law firm in Washington, D.C., was one of the attorneys who defended Rosen and Weissman. He told Boulder Weekly that he believes federal prosecutors dropped the case in part because the trial could have revealed more classified information than had already been shared, since Lowell planned to call a host of federal officials to the stand, including for mer Secretary of State Condoleezza Rice.

The AIPAC case was the closest the nation has come to having some clear case law on how to treat third parties who simply circulate classified information, Lowell says.

“Pure media has never been tested,” he explains. And Lowell says that while the government will likely argue against WikiLeaks being treated as a media organization, he believes the organization does qualify for the traditional protections of the press.

While the press and everyday citizens receive the same free-speech protections under the First Amendment, the actions — as opposed to the speech — of the press receive special protection that could benefit WikiLeaks if it is viewed by the courts as a media outlet, Lowell says.

Another factor that could play into prosecuting Assange is the Espionage Act’s prohibition against circulating such information “in bad faith,” or without good reason. Lowell says one could argue that WikiLeaks did have good reason to release the materials, especially if invoking First Amendment rights the founding fathers created to protect citizens’ rights to question and expose the actions of their government.

Lowell believes that the Department of Justice will file charges against Assange (and/or the WikiLeaks employees who actually posted the information), but that WikiLeaks will prevail.

“I think they could write an indictment that won’t be dismissed, but I think WikiLeaks would be seen as a media organization, so that’s a high bar,” he says. “It’s going to be a difficult case, and it’s going to create all kinds of new law.”


Improved security needed

Sandra Baron, executive director of the Media Law Resource Center, agrees that the government doesn’t have much of a case against Assange if he was just the passive recipient of the cables.

“Absent active involvement by WikiLeaks in the acquisition of the material, absent solicitation, I don’t think there is a cause of action under the Espionage Act,” she told Boulder Weekly. “But the law has not been tested.”

Baron says it would be inadvisable for federal prosecutors to test it in this case.

“I don’t think they want to see if they can prosecute The New York Times by test-driving it on WikiLeaks,” she says, adding that attempts by Sen. Joe Lieberman, I-Conn., and other legislators to change current law probably won’t gain enough support to pass. “They could criminalize stories of real value simply because they used classified information,” she cautions.

Baron says one of the real lessons is that the government needs to take better care of its classified documents, and reduce the number of them.

“Probably what they need to do is streamline the classification system to fewer documents and protect them better,” she says. “I think there would be broader support for that type of solution.”

It’s also a lesson for companies like PayPal, Visa and MasterCard, which were targeted by hackers in cyber attacks after severing ties with WikiLeaks.

“I think at the end of the day, everyone’s going to have to learn more about cyber-security,” Baron says.

She adds that one challenge in prosecuting WikiLeaks under the Espionage Act is that the government must prove that there was “an intent to do harm to the government or to intentionally aid and abet a foreign government,” which she agrees is “a very high bar.”

In addition, she explains, the 1917 act was targeted to spies, not media organizations.


The Buckley report

Baron points to a 2002 report done for the Media Law Resource Center by attorney Susan Buckley. That document, titled “Reporting on the War on Terror: The Espionage Act and Other Scary Statutes,” is available at www.mlrc.org and paints a detailed picture of the legal landscape for media outlets that report classified information.

Buckley writes in the report that in the Pentagon Papers case, a judge noted that “publishing” is not mentioned in the relevant section of the Espionage Act, Section 793, even though the term is used elsewhere in the act, “indicating that newspapers were not intended by Congress to come within the purview of Section 793.”

In addition, Buckley’s report points to several other indications that the Espionage Act was not intended to apply to the press, including provisions rejected by Congress the year it was passed and opinions/provisions offered when the act was amended in 1950.

She also cites a 1973 law review article in which Harold Edgar and Benno Schmidt Jr., analyzed the application of the Espionage Act to the publication of defense information and persuasively argued that Section 793 was not intended to be applied to the “publication of defense information that is motivated by the routine desires to initiate public debate or sell newspapers.”

In explaining its decision to post the cables, on its website WikiLeaks states, “This document release reveals the contradictions between the U.S.’s public persona and what it says behind closed doors — and shows that if citizens in a democracy want their governments to reflect their wishes, they should ask to see what’s going on behind the scenes.”


Political pressures

As for the propriety of government officials pressuring companies like PayPal, Visa and MasterCard to cease doing business with WikiLeaks, Baron says those were simply attempts “to close the barn doors after the horses have escaped.”

While there have been cases in which a newspaper has sued a local government that discontinued advertising with the newspaper in retribution for content that was critical — a possible violation of the First Amendment — media experts say lawmakers who pressured PayPal, Visa and MasterCard did not violate any laws.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, told Boulder Weekly there is nothing untoward or new about government officials using their own free speech to put pressure on companies. If, on the other hand, they passed a law or issued a court order inhibiting freedom of the press, that would be a First Amendment issue. It goes back to that Constitutional language saying Congress “shall make no law” abridging the freedom of the press.

The other dynamic at play, while not a legal one, is the public pressure — and, subsequently, financial pressure — that WikiLeaks would feel if there was a widespread feeling that it was acting irresponsibly and threatening national security. In the court of public opinion, Assange would likely lose funding and associations with corporations and individual donors alike if there were general agreement that he was reckless.

“If I were a business, and my strength depended on the good will of my customers, I’m always going to make a decision based on where the majority of my customers are coming from,” Dalglish says.

But she agrees that the feds would have their work cut out for them if they try to prosecute WikiLeaks or Assange.

“I think it would be exceptionally difficult to get a conviction against WikiLeaks under the Espionage Act,” Dalglish says, adding that her group will keep a close eye on any new law that grows from this showdown.

“I’m going to be very apprehensive about anything they’re trying to do,” she says. “We’ll analyze it very, very carefully.”

Respond: letters@boulderweekly.com

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