Espionage Act Presents Challenges for WikiLeaks Indictment

Dec. 13, 2010— -- As the U.S. Justice Department crafts a legal case against WikiLeaks' Julian Assange for the publication of thousands of secret government cables, legal experts are warning that any indictment under the Espionage Act may also implicate the news media -- and Americans who've read the cables or shared them with their friends.

The World War I-era law is broadly written and criminalizes anyone who possesses or transmits any "information relating to the national defense" which an individual has "reason to believe could be used to the injury of the United States or to the advantage of any foreign nation."

If WikiLeaks, which allegedly did not steal the documents, is guilty of espionage for printing them, so too might be the New York Times, U.K.'s The Guardian, and Germany's Der Spiegel, which have replicated and disseminated the materials worldwide, some experts say.

Individual users of Twitter and Facebook and other social media who spread links to the documents far and wide, or even discussed the contents in public, could also technically be liable.

"One of the flaws in the Espionage Act is that it draws no distinction between the leaker or the spy and the recipient of the information, no matter how far downstream the recipient is," said American University law professor Stephen Vladeck, an expert in national security law.

"There's no difference in the statute between Assange and someone at home who opens up something that Assange has posted on his website knowing that it's classified," he said.

The sweeping and vague nature of the law may explain why the federal government recently warned all employees not to read WikiLeaks' cables or any news reports pertaining to them because the information is still classified.

Several universities around the country have also warned students who might seek careers with the federal government not to post links to WikiLeaks content or discuss the cables publicly through social media.

" [The Espionage Act] criminalizes all casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them... in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents," wrote Benjamin Wittes, a legal analyst with the Brookings Institution, on the blog LawFare.

"Taken at its word, the Espionage Act makes felons of us all," he said.