Wikileaks | Could WikiLeaks Provoke Crackdown On Leaks?

December 20, 2010 – 2:44 am

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Abbe D. Lowell, defense attorney: There can be serious doubt, indeed, “reasonable doubt,” that Mr. Assange has violated the act. First, there has never been a prosecution under the act for a First Amendment-protected media outlet or reporter. The AIPAC case was the closest in that it charged lobbyists. [Lowell defended one of the lobbyists; the government dropped the charges .] It is not clear that a court would rule that the act can apply constitutionally in this context.

If a charge survived such a challenge, courts have then stated the government has a much higher burden of proof if First Amendment activity is involved ” that burden requires the government prove beyond a reasonable doubt that Mr. Assange did the acts involved, did them with an intent to injure the U.S., and did them in bad faith. These are high bars in criminal cases.

So while it is not hard for a prosecutor to charge a case, obtaining a conviction is not assured.

Stephen I. Vladeck, law professor, American University: There’s little doubt that Assange knowingly redistributed classified information. The doubt, such as it is, is whether the Espionage Act requires more.

The act, for example, prohibits the willful communication, delivery, or transmission to “any person not entitled to receive it” of “any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” With regard to this last clause ” that is, the disclosure of “information relating to the national defense” ” courts have ruled that the defendant must have acted in “bad faith.” But what does that mean, here?

The single biggest problem with the Espionage Act is that its limits have never truly been tested, and so it is exceedingly difficult to say with any certainty what it does and doesn’t proscribe.

As the then-general counsel of the CIA summarized in 1979, “[o]n the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.”

Paul Rosenzweig, Heritage Foundation, former Homeland Security official: His actions seem to pretty readily fall within the strict terms of the act, but then so do those of The New York Times and dozens of other outlets.

The more interesting question is whether a violation of the act can be proven, given how the act has been interpreted. As recent failed efforts to prosecute two alleged recipients of classified material about Israel show, those prosecutions are fraught with challenges that make it hard to prove a violation beyond a reasonable doubt. Most notably, the courts have said that the act requires proof of some form of “specific intent” or “bad faith” for a conviction.

I think Assange’s assertion of a “good government/transparency” motive are patently self-serving flummery, but a jury might buy it.

I have no doubt that a colorable [seemingly valid] case can be made against Assange ” but conviction is much less certain.

Does it matter that WikiLeaks didn’t steal anything?

Does it matter that WikiLeaks is the recipient and distributor of stolen material, not the one who stole it?

Stephen I. Vladeck, law professor, American University: It may matter quite a bit, both politically and for First Amendment reasons that I’ll get to in a second. But for starters, it’s quite clear that the Espionage Act applies on its face regardless of whether the individual who is distributing classified information is the initial thief or an intermediary. Indeed, the plain text of the statute would suggest that even the 100th person to redistribute the same classified document might still be liable, so long as he had the requisite mens rea [criminal intent]. For better or worse, classified information doesn’t become unclassified simply because it has been wrongly disclosed to the public.

That being said, in the 93-year history of the Espionage Act, the U.S. government has brought exactly one prosecution under the statute of anyone other than the initial thief/spy/leaker, and that case ” concerning two American Israel Public Affairs Committee lobbyists accused of transmitting classified information to Israel ” collapsed in 2009 .

The elephant in the room here (as it was in the AIPAC case) is the First Amendment. Where information has already been leaked, there are many who believe that the First Amendment protects the right of Americans ” journalists, in particular ” to view and redistribute that information.

Abbe D. Lowell, defense attorney: As a technical and legal matter, each successive unauthorized disclosure of national defense (classified) information can be the basis of an Espionage Act prosecution, and so it would not prevent a charge against Mr. Assange.

But, his being a media recipient and distributor could matter in whether the Justice Department wants to bring such a theory that would be a precedent against all other media.

However, the government does not have to charge this conduct under the Espionage Act. The Attorney General has stated they are looking at other laws. Among these could be conspiracy, based on Mr. Assange being in an unlawful agreement with the person who actually stole the material, or the charge of theft of government property, which could apply to the person who stole the material and the person who “retains” it.

Paul Rosenzweig, Heritage Foundation, former Homeland Security official: Absolutely. We’ve successfully prosecuted many who have released classified material illegally ” that’s how most spies are charged.

But because of First Amendment concerns, the U.S. has a very great hesitancy in punishing those who are the recipients of classified information and then republish it or transmit it onward. The Israeli case I mentioned above is the only such prosecution that I know of, and the government lost the case.

It may be that Assange can’t formally claim First Amendment protection ” but it is certain that First Amendment principles and our history of protecting public discourse will cause the government to hesitate before prosecuting.

Is Assange a journalist?

Is Assange a journalist? Is WikiLeaks a news organization? If so, how does that affect a case? How is Assange any different from the newspapers that have republished the cables?

Paul Rosenzweig, Heritage Foundation, former Homeland Security official : I agree with Floyd Abrams (of Pentagon Papers fame). Like him, my opinion is that Assange is not a journalist and WikiLeaks is not a news organization.

News organizations pride themselves on adding value to news ” they analyze and provide context. WikiLeaks does none of that. It’s more like a telephone directory ” just a compiler of information, not a discriminating purveyor ” and it demeans real news organizations to make the comparison.

Of course, Assange is sure to contest that conclusion if he is ever brought to trial, and the boundaries of the definition of a “news organization” in a complex Internet/blogging world have yet to be well drawn, so it is possible that a court will rule otherwise. But if I were a betting man I’d bet against this aspect of Assange’s defense.

Abbe D. Lowell, defense attorney : The issue of whether WikiLeaks is a media organization and whether Mr. Assange is a First Amendment protected journalist are key questions when dealing with the Espionage Act, because journalists and the media get the most protection at the intersection of the First Amendment to the criminal law and because the government has the highest burden of proof in this context.

The WikiLeaks events tee up the question of defining “media” in the new, Internet era like no previous case.

The government will argue that providing a website for the dissemination of raw classified data is “not reporting” and has no editorial or traditional media activity.

However, the First Amendment is very broad and very strong, and WikiLeaks has the better of the argument that gathering information (even raw information) and reporting it (disclosing it) is the classic definition of protected freedom of the press activity.

Stephen I. Vladeck, law professor, American University : Legally, at least, I don’t think it matters whether or not Assange is a journalist or WikiLeaks is a news organization.

The Supreme Court has long resisted the invitation to recognize special constitutional protections for journalists, at least largely because it is so difficult to draw the line between the “mainstream media” and those private citizens who seek to publish information through other means, including blogs, Twitter feeds, or, if they still exist, pamphlets. In that sense, Assange may not be that different from The New York Times or other media outlets that have republished the cables. (Indeed, this will surely be one of his arguments.)

And I think this point goes a long way to explaining why this case is potentially so momentous. Although the U.S. government has never prosecuted a reporter or a newspaper for publishing classified information, the text of the Espionage Act would seem to permit such a prosecution, and several of the Supreme Court Justices who decided the Pentagon Papers case in 1971 specifically suggested that The Times and The Washington Post could be prosecuted after the fact for publishing the Pentagon Papers, even while ruling that they couldn’t be enjoined from publication.

So the real question is whether any prosecution of Assange would set a dangerous precedent for potential future prosecutions of the press, or whether the government would rely upon a novel theory that draws a clearer distinction between what Assange did here and what any number of newspapers have done both recently and in the past.

Is he protected by First Amendment?

As a non-citizen acting outside the United States, is Assange entitled to First Amendment protections at all? Should the First Amendment ever protect the public dissemination of classified material?

Abbe D. Lowell, defense attorney : Like so many other aspects of this case, whether and to what extent the First Amendment applies to a non-citizen who might be accused of making a disclosure (in other words a form of speech) abroad (and not in the U.S.) is not entirely clear. However, if the U.S. is able to get jurisdiction over Mr. Assange by claiming his actions occurred in the U.S., then he should be able to assert that the same activity enjoys the benefit of the First Amendment, because free speech and free press protections apply to people in the country, not just citizens.

The First Amendment does not have a broad carve-out from its free speech and free press protections for classified information or “national defense information” (the proper phrase under the Espionage Act). It would be inconsistent with the whole idea of such freedoms for there to be wholesale exceptions in the First Amendment for such categories. Instead, the First Amendment will compel a court to determine other aspects of any disclosure ” the intent behind the release, the purpose of the disclosure and whether the disclosure was in “bad faith.” Those are where the First Amendment will or will not protect the conduct alleged here.

Stephen I. Vladeck, law professor, American University : These are two very different questions. To the first, if it came to that point, Assange would be in the United States, sitting in a U.S. courtroom. Although the case law is decidedly unclear as to which rights non-citizens outside the United States are entitled to invoke, in that situation, I think Assange would have a very strong case that the First Amendment should apply.

But I doubt it will come to that. Because it is not even clear whether the Espionage Act applies to conduct that takes place overseas, I suspect that any Espionage Act prosecution would include an argument that some of the underlying acts took place within the territorial United States, even if it was simply the storage of some of these cables on servers physically located within the country. On that theory, if the crime happened “here,” I think it would be even clearer that Assange would be entitled to whatever protections the First Amendment would have to offer.

As to the second question, once we pull away all of the layers of the WikiLeaks onion, I think that this is the real issue for us to debate going forward. To be frank, I’m ambivalent about the answer. At the very least, though, it’s worth considering two sets of cases: (1) where the public good resulting from the disclosure clearly outweighs any potential harm to national security; and/or (2) where the disclosed information should not have been classified in the first place. In both sets of cases, I think there are compelling arguments in favor of allowing disclosure, or, at the very least, incentivizing a government employee to report misconduct to the appropriate government official in a whistleblowing case. And if the First Amendment doesn’t provide for such disclosure, perhaps a statute should. (Indeed, one of the many flaws in the Espionage Act as currently written is that it makes no

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