Espionage Act Presents Challenges for WikiLeaks Indictment

Antiquated law poses challenges for feds' indictment of Julian Assange.

December 10, 2010, 6:04 PM

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.

Feds Weigh Approaches to Charging Assange

Vladeck said the complexity of the situation may explain why the U.S. government and Attorney General Eric Holder have not yet charged Assange with a crime.

Still, Jennifer Robinson, one of Assange's attorneys, told ABC News last week that she's hearing an indictment under the Espionage Act could be imminent.

"Our position of course is that we don't believe it applies to Mr. Assange and that in any event he's entitled to First Amendment protection as publisher of Wikileaks and any prosecution under the Espionage Act would in my view be unconstitutional and puts at risk all media organizations in the U.S.," Robinson said.

Only once in the history of the Espionage Act has the U.S. government brought a case against someone other than the thief of secret information. That prosecution failed, Vladeck said.

But Holder cautioned reporters last week that the Espionage Act isn't the only law under which the Justice Department might charge Assange.

"I don't want to get into specifics here, but people would have a misimpression if the only statute you think that we are looking at is the Espionage Act," he said. "That is certainly something that might play a role, but there are other statutes, other tools that we have at our disposal."

Experts say Assange could also be charged with trafficking in stolen government property or conspiracy, if investigators can demonstrate a link between Assange and the alleged source of the leak, Army Private Bradley Manning.

Manning, who is believed to have stolen the documents in his role as a military intelligence analyst, is being held in a U.S. military prison in Quantico, Va. He likely faces charges for espionage.

As for liability of the news media, a recent report from the Congressional Research Service suggests there may be sufficient legal precedent to keep them off the hook.

"Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it," the report reads.

"There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship."