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WikiLeaks and the Espionage Act: Why Julian Assange is different from the New York Times

April 26, 2011

The Wall Street Journal, 25 April 2011: In San Francisco last week, some 20 supporters of Bradley Manning spent $100,000 to go to a fund-raiser for President Obama to sing a song protesting the incarceration of the Army private. The accused leaker of hundreds of thousands of classified documents to WikiLeaks had just been transferred to Fort Leavenworth, Kan., from the more restrictive brig at Quantico, Va. Mr. Obama had to explain to his supporters why there’s anything wrong with massive leaks of military reports and diplomatic cables.

Perhaps the Obama administration’s dithering about what to do about WikiLeaks helps explain why anyone would defend Pfc. Manning. Julian Assange has faded from the world stage to fight rape and assault charges, and his followers are abandoning him, so this lull is a good time to anticipate his next move.

After the 9/11 failures to connect intelligence dots, the government adopted a policy of sharing information widely. But with some 500,000 Americans cleared for classified documents, more leaks are all but inevitable.

Still, the U.S. can move beyond its current paralysis without criminalizing routine leaks by focusing on Mr. Assange, the self-declared anarchist who created WikiLeaks. His stated goal is to deprive the U.S. government of a smooth flow of information by disclosing its internal communications. “An authoritarian conspiracy that cannot think efficiently,” Mr. Assange wrote in an essay in 2006, “cannot act to preserve itself.” We’ll see.

His former top aide, Daniel Domscheit-Berg, recently wrote a book, “Inside WikiLeaks,” describing Mr. Assange’s focus on the U.S. as the “only enemy.” Mr. Domscheit-Berg writes that when he tried to make WikiLeaks politically neutral instead of anti-American, Mr. Assange accused him in a text message of “disloyalty, insubordination and destabilization in times of crisis.” This striking language comes from the Espionage Act of 1917, which makes it a crime for anyone who has “unauthorized possession to information relating to the national defense” and has reason to believe the information “could be used to the injury of the U.S.” to “willfully” release it. There may be very good reason this precise language was on Mr. Assange’s mind.

The Espionage Act requires willfully endangering the U.S. It may seem unusual to consider intent in the context of how information flows, but without focusing on intent, the law would raise serious First Amendment issues. Many academics and media commentators—and perhaps overly cautious prosecutors—have missed the point that WikiLeaks is different from the New York Times. It’s the political motivation of Mr. Assange that qualifies him to be prosecuted. The publisher is not liable for its reporting.

Intent is often the main issue in Espionage Act prosecutions. During World War II, FDR wanted to prosecute the Chicago Tribune for its 1942 story about a detailed Japanese plan of attack at sea. It turned out the reporter might not have known the information was based on broken Japanese codes, so there was no guilty knowledge.

Likewise, the intent requirement ended the prosecution of two lobbyists from the American Israel Public Affairs Committee. They’d been charged in 2005 under the Espionage Act for receiving and disclosing information about Iran’s nuclear program. The judge told prosecutors they had to show “defendants possessed all the culpable mental states” under the Espionage Act. In 2009, prosecutors dropped the charges, citing the “intent requirements.” The defendants wanted to broaden awareness of Iran’s threat to harm the U.S.

In contrast, Mr. Assange has a willful mind on all the counts of the Espionage Act: that the classified information could be used to harm the U.S., that the recipients of the information were not authorized to receive it, and that he knew the disclosures were illegal and could harm U.S. national security.

Prosecutors can easily treat Mr. Assange differently from the media outlets for which he was a source. The Espionage Act’s requirement of an intention to harm the U.S. provides the clear line. Indeed, no news organization has ever been charged under the law. Bill Keller, top editor of the New York Times, earlier this year detailed how his staff carefully filtered the WikiLeaks documents to protect U.S. interests, redacting many names and editing out “any details that might reveal ongoing intelligence-gathering operations, military tactics or locations of material that could be used to fashion terrorist weapons.”

Despite months of inaction from the White House, the U.S. is not powerless to deter future leaks. Along with prosecuting Pfc. Manning, the U.S. should indict Mr. Assange under the Espionage Act. This battle to protect the free flow of information within the government against constant leaks is part of an information war the U.S. can’t afford to lose.


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