A Follow-up on Wikileaks and the Espionage Act
By Trevor Timm
Democrats and Republicans in the United States Senate seemingly disagree on every issue these days except one: Wikileaks, after its much publicized release of State Department diplomatic cables, should be charged with espionage.
From the Huffington Post:
In Washington, the top Democrat and Republican at the Senate Intelligence Committee called on Attorney General Eric Holder to prosecute Assange for espionage. Committee chairwoman Sen. Dianne Feinstein, D-Calif., and vice chairman Sen. Kit Bond, R-Mo., said in a letter Thursday that they believe Assange’s behavior falls under the Espionage Act, which makes it a crime to willfully pass on defense information that could hurt the U.S.
Yet legal analysis from many media organizations in the last few days, including Reuters and NPR, has largely confirmed Legal as She is Spoke’s analysis of the Espionage Act as it relates to Wikileaks posted more than three weeks ago: a conviction under the Espionage Act would be both unprecedented and close to impossible.
That doesn’t mean the government isn’t going to try.
The Washington Post reported Tuesday that the Justice Department is exploring whether it can charge Wikileaks under the 1917 Act. But despite all the sturm und drang from representatives in Congress who have no legal authority over the matter, the words coming from those who do—the White House, Pentagon, and Justice Department—suggest they understand the realities that the Espionage Act does not apply to the press.
Attorney General Eric Holder did not sound as though he was about to indict anyone: “To the extent there are gaps in our laws,” he stated, “we will move to close those gaps, which is not to say . . . that anybody at this point, because of their citizenship or their residence, is not a target or a subject of an investigation that’s ongoing.”
Even more telling, on the eve of the State Department cables’ release on November 28, the White House and the Pentagon condemned the leak, but stopped short of saying that publishing the information was illegal.
“We condemn in the strongest terms the unauthorized disclosure of classified documents and sensitive national security information,” said White House Press Secretary Robert Gibbs in a statement. Notice he said the disclosure was “unauthorized” which means the government didn’t approve—but not that publishing it was illegal. The Pentagon condemned “this reckless disclosure of classified information illegally obtained,” specifying that the illegal act was the obtainment of information by the alleged leaker Bradley Manning — not publication by Wikileaks.
Even with all the hysteria surrounding the disclosures, culminating in pundits calling for Mr. Assange’s assassination, no one can point to any damage to our national security. On the eve of the massive State Department leak, McClatchy Newspapers reported that “Officials may be overstating the danger from Wikileaks,” and that “despite…warnings ahead of the previous two massive releases of classified U.S. intelligence reports by the website, U.S. officials concede that they have no evidence to date that the documents led to anyone’s death.”
Defense Secretary Bob Gates echoed those statements on November 30 when he said, “I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on….I think those descriptions are fairly significantly overwrought…Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”
That does not mean, however, that the government is not doing everything in its power to stop Wikileaks. Amazon.com was hosting the Wikileaks website before it was pressured by the government to take it down. The site is also currently without a web address, and other companies posting Wikileaks information have been pressured to remove the offending content, as well. In addition, PayPal has banned Wikileaks from its service, saying that Wikileaks was engaged in “activities that encourage, promote, facilitate or instruct others to engage in illegal activity,” and so Wikileaks now cannot accept online donations.
All this and Wikileaks has not even been charged with a crime.
In addition, federal agency employees are barred from going to the Wikileaks site. Columbia University students were also warned in a mass email that linking to individual cables may jeopardize a future career at the State Department. Even the Library of Congress, whose mission statement is to “sustain and preserve a universal collection of knowledge and creativity for future generations,” has blocked the site.
This crusade, led by Sen. Joe Lieberman (D-CT) seems all the more strange because as Salon’s Glenn Greenwald puts it, Mr. Lieberman is trying to “prevent American citizens — not The Terrorists — from reading the Wikileaks documents which shed light on what the U.S. Government is doing. His concern is domestic consumption.”
In an Executive Order reaffirming his commitment to the Freedom of Information Act, President Obama declared, “the Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”
Isn’t that exactly what we’re dealing with here?