news analysis If WikiLeaks co-founder Julian Assange is indicted by the U.S. government for disseminating classified information, as even his own lawyer now expects, his defense is likely to face long legal odds.
The 1917 Espionage Act, enacted by the U.S. Congress during World War I, has been a mainstay of national security prosecutions ever since. And it's been upheld as constitutional by every court that has examined whether its invocation in a criminal prosecution complies with the First Amendment's guarantee of freedom of speech.
A CNET review of Espionage Act cases shows that judges have generally favored the government and, in a 1985 case, even allowed an extraterritorial prosecution of a non-U.S. citizen. In the 1978 case of U.S. v. Dedeyan, the Fourth Circuit upheld the Act against arguments that it was vague and overly broad. A year later, in U.S. v. Boyce, the Ninth Circuit ruled it was "constitutionally sufficient."
"We find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law," the U.S. Supreme Court ruled unanimously in 1941. "The language employed appears sufficiently definite to apprise the public of prohibited activities and is consonant with due process."
The Pentagon's criminal investigation of WikiLeaks--especially Assange, its frontman and spokesman--began over the summer after the Web site published thousands of military dispatches from Afghanistan. By August, the FBI had been drawn in, and after last month's recent leaks of confidential Iraq and State Department communications, Attorney General Eric Holder confirmed that the probe is ongoing.
Some of the more hawkish members of Congress have egged him on. Rep. Peter King (R-N.Y.), the incoming head of the House Intelligence Committee, asked Holder to charge Assange under the Espionage Act, as did Senate Intelligence Committee chiefs Dianne Feinstein (D-Calif.) and Kit Bond (R-Mo.). Senate Homeland Security Chairman Joseph Lieberman (I-Conn.) has been publicly wondering why an indictment and extradition "hasn't happened yet."
It's true that prosecuting Assange, who is in a London facing an extradition hearing tomorrow on unrelated charges lodged in Sweden, is engaging in something that's closer to informational activism and not what most people would think of as spying.
The actual text of the Espionage Act, 18 USC 793(e), is nevertheless breathtakingly broad. It says that anyone who has "unauthorized possession" of documents "relating to the national defense" and publishes them, believing they "could be used to the injury of the United States or to the advantage of any foreign nation," is guilty of a federal felony. (This is narrower than a version proposed by President Wilson, which would have given the executive branch the power to censor information "of such character that it is or might be useful to the enemy.")
On Fox News over the weekend, Bush Attorney General Michael Mukasey called the law "an oldie but goodie." He said that there's no question in his mind that a prosecution against Assange, an Australian citizen, could proceed "because the First Amendment doesn't protect speech that causes certain prescribed--certain defined injury."
In the 1971 Pentagon Papers case, a 6-3 majority of the U.S. Supreme Court rejected a prior restraint prohibiting the New York Times and Washington Post from publishing classified documents on the Vietnam war.
But even the justices in the majority acknowledged at the time that criminal prosecutions after publication would still be possible. "If a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought," wrote Justice Potter Stewart.
And Justice Byron White added that the drafters of the Espionage Act "appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed."
Rep. King told Fox Business News over the weekend that Assange could be prosecuted because "the Pentagon Papers case was limited to prior restraint" before publication.
The full contours of what limits the First Amendment places on the Espionage Act have never been outlined by a court. In part, that's likely because the Justice Department has not been eager to learn the answer: no criminal charges were lodged against either newspaper in the Pentagon Papers case. And prosecutions since then have typically targeted leakers, not publishers or journalists.
This is hardly a universal view. Civil libertarians have already taken up the defense of WikiLeaks' First Amendment rights. White collar defense attorney Baruch Weiss suggests any prosecution of Assange "will not be easy." Writer Naomi Wolf has even called for Americans to "rise up and insist on repeal of the Espionage Act."
A review of Espionage Act cases shows that judges have tended to chip away at obstacles for government prosecutors. In a 2007 conspiracy case, for instance, a court ruled that the Justice Department did not need to prove that the information disclosed was closely held and damaging to national security.
In July 2010, the U.S. Court of Appeals for the Armed Forces ruled there did not have to be "bad intent" for someone to be convicted of disclosing information covered by the Espionage Act. What was important, the court concluded, was "the conscious choice to communicate covered information." (Assange would presumably claim to be acting out of the best of intentions; his an op-ed in The Australian last week said WikiLeaks is "fearlessly publishing facts that need to be made public.")
Nearly six decades ago, in what may have been the most famous Cold War prosecution, the Second Circuit allowed Julius and Ethel Rosenberg to be executed. "We think the statute valid under the First Amendment," the court concluded. "The communication to a foreign government of secret material connected with the national defense can by no far-fetched reasoning be included within the area of First Amendment protected free speech."
Even an unsuccessful attempt to pass on "national defense" information is illegal. In the 1958 U.S. v. Abel case, the Second Circuit acknowledged "there is no evidence" that the defendant and his co-conspirators "ever succeeded in gathering or in transmitting any unlawful information." But "the conspirators' lack of success, if indeed they were unsuccessful, does not lessen the criminality of their activities."
The phrase "information relating to the national defense" isn't actually defined in the Espionage Act. A federal judge in Connecticut, however, ruled last year in U.S. v. Abu-Jihaad that it was a "generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness," as long as the information was reasonably accurate and it was intended to be kept secret.
WikiLeaks has disclosed more than 75,000 confidential files related to the war in Afghanistan, nearly 400,000 classified documents from Iraq, and about 1,300 of 250,000 State Department cables so far.
Perhaps the closest legal parallel with WikiLeaks arose when two employees of the AIPAC pro-Israel lobbying group were charged with violating the Espionage Act. They weren't government employees themselves -- they were more akin to WikiLeaks, or the media, because they obtained sensitive information through a leak. (The Obama administration dropped the case last year.)
"Both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense," Judge T.S. Ellis wrote in 2006 in the AIPAC case. He noted that with the lone exception of Justice Hugo Black, eight of the Pentagon Papers justices indicated "that they would have upheld a criminal prosecution of the newspapers."
Correction at 10:40 a.m. PT: Sen. Kit Bond's home state has been corrected.