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Interesting Reader Responses on Wikileaks

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Tuesday, December 14, 2010 at 9:50 AM

I’ve received a number of interesting responses to my post from Sunday on rewriting the Espionage Act. Two bear particular attention. The first is an email from a scholar who prefers to remain anonymous, who writes:

In your proposal, you require that the information be “properly classified,” instead of just “classified.”  I’m wondering about your thinking behind that.  While it’s true that there’s a tremendous amount of overclassification, would we really want to license potential disclosers to second-guess whether information was properly classified, and to give judges [or] juries the power to decide, in the context of a criminal prosecution, whether the material was originally classified properly?  Once the material is classified, potential disclosers are on full and fair notice; that’s a clean, objective standard.  But if the message to potential disclosers is that disclosure is fine if you think classification was not proper in the first place, most of these leakers are going to convince themselves the material should not have been classified to begin with. True, they are taking a risk that a jury would disagree with them, but still, this is a very large hole in the proposed statute. And you might start raising issues of intent:  if a discloser believed in good faith that the material should not have been classified, even if he turns out to be wrong, can he be criminallly liable?  That’s why one might think the objective standard–is it classified–makes more sense.

The second response, from Tom Malinowski of Human Rights Watch, reads in relevant part:

Shouldn’t it also matter that Assange is not a US citizen or resident?  If Assange has a legal responsibility to protect any document that the U.S. government has stamped “secret,” do you and I have a commensurate legal responsibility to protect French or Chinese or Iranian secrets?  Could those countries prosecute us for publishing them?

The first point is easier for me to address than the second, because the language was a matter of deliberate choice on my part. I used the language “properly classified” precisely to avoid a bright-line rule in an evironment of rampant overclassification. My earliest introduction to the subject of overclassification, back in the early 1990s, involved what remains in my mind the most brilliant Freedom of Information Act request ever filed. Steve Aftergood of the Federation of American Scientists requested that the National Archives declassify and release the oldest still-classified document in its possession. It turned out to be a World War I-era intelligence report filled with intelligence methods–methods like stuffing messages inside of a skeleton key (not a joke). Nobody doubts that there is a huge amount of wrongly-classified, overclassified, or should-not-be-still-classified material out there. And it seems to me essential if we are going to have criminal liability for publishing government documents that the burden be on the government to prove that it was properly classified–and that defendants have the opportunity to convince a juror that conviction is unwarranted because the material wasn’t really sensitive. I might feel differently about this point for leakers within the government, who have taken upon themselves the burden of protecting classified information and have thus embraced a process–flawed though it may be–for classifying and declassifying material. But for secondary transmissions by people who have taken no such oath, limiting liability to circumstances in which the government can prove to a jury beyond a reasonable doubt that the material is “properly classified” seems to me an important civil liberties safeguard.

Tom Malinowki’s point–which was raised by other readers as well–is one I had not considered fully in my impulsive attempt to rewrite the statute. And it seems to me a profound one, one I am not certain I know how to fix. There are actually two questions here, and they are worth disentangling. There is the question of the propriety of applying law aimed at protecting U.S. national security to those who have no obligation to U.S. national security and are not generally subject to U.S. jurisdiction. And then there is the question of reciprocity, which Tom makes pointedly with reference to Chinese and Iranian secrets. Would we want other countries holding our nationals accountable for publishing their secrets when they are unable to keep them?

As to the first question, there are any number of statutes that impose criminal liability on foreigners abroad for acts that impinge on American interests–killing Americans, for example–so there’s certainly no problem in principle with having a statute reach beyond our shores and beyond American citizens. But Tom is right that this statute has a nuance that makes one pause before treating it as just another extraterritorial application of American law. That nuance is that the entire moral force of a law like this flows from some notion that the person violating it had some obligation to protect the secrets in question. This notion is why we have a dramatically higher comfort level with prosecuting leakers (who promised to protect classified information) than we do with prosecuting secondary transmitters (who did not make any such promise). When we impose liability on secondary transmitters, including the press, we are essentially saying that their duty as Americans or people otherwise subject to this country’s laws conveys some obligation to protect some information some of the time. But Assange does not even meet this more attenuated standard. And I’m not sure I know by what logic of reason–rather than simple power–the United States Congress can obligate him to keep the State Department’s secrets for it.

This, in turn, leads ineluctibly to Tom’s reciprocity point: If Congress can make such a demand on Assange, the U.S. would be in a bad position to object if the Congress of People’s Deputies made a similar demand on the Washington Post. I actively want more Chinese secrets revealed against the will of the Chinese government. Indeed, were Wikileaks spending more of its time undermining authoritarianism and less of its time undermining democracies, I might admire it. And I would find outrageous efforts by foreign governments to require American news outlets to keep their secrets for them. I’m not against double standards in all circumstances, so it’s possible that the right answer here is hypocrisy: Doing what we need to do and objecting when other countries do the same. But I agree with Tom that the situation would be very awkward.

All of which is to say that I am tentatively persuaded that some jurisdictional limitation is probably appropriate–at least in application, if not in the statute itself. I’m not sure what it would look like, but I suspect that it would probably get Assange off the hook.

I will give some more thought to this point and welcome reader input. In the meantime, that sex crimes case in Sweden is looking better and better as way of neutralizing Assange.