The Washington Post on Wikileaks

By Benjamin Wittes
Sunday, December 12, 2010, 10:12 AM

"Don't Charge Wikileaks," say my beloved former colleagues at the Washington Post editorial page this morning. The Post argues that,

Such prosecutions are a bad idea. The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets. Doing so would criminalize the exchange of information and put at risk responsible media organizations that vet and verify material and take seriously the protection of sources and methods when lives or national security are endangered. The Espionage Act is easily abused, as shown by a criminal case that dragged on for years, before being closed last year, of two lobbyists for the American Israel Public Affairs Committee who did nothing more than pass along to colleagues and a reporter information they gleaned from conversations with U.S. officials. The act should be scrapped or tightened, not given new and dangerous life.

A few thoughts:

The blanket proposition that the government has no business prosecuting someone not obligated to protect secrets for disclosing protected material overstates an important idea. The important idea is that the United States has never had an Official Secrets Act, a generalized prohibition against private sector publication of state secrets. To create one raises enormous First Amendment concerns. The issue, however, cannot quite as black-and-white as the editorial suggests. Suppose, for example, that Wikileaks got its hands on the U.S. nuclear launch codes and published them with the the specific intent of harming U.S. national security. Or, to take a real example, suppose someone went on a binge of outing U.S. covert operatives in order to harm U.S. intelligence capabilities--an incident that actually gave rise to its own statute. I don't think the Post would take the position that the criminal law is an unthinkable instrument in such cases. I certainly wouldn't.

As such, the editorial's contention that the old and vague Espionage Act "should be scrapped or tightened, not given new and dangerous life" realistically cannot mean scrapped. It can only really mean tightened or replaced with tighter statutes.

Such a tightening is not hard to imagine. Currently, the relevant statutory language, 18 U.S.C. 793(e), reads,

Whoever having unauthorized possession of, access to, or control over 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, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it . . .  [s]hall be fined under this title or imprisoned not more than ten years, or both.

As currently written, the statute has at least four major problems (along with some minor ones I don't treat here):

  1. The term "relating to the national defense" is not limited to properly classified information, thus potentially criminalizing far too broad a range of disclosures;
  2. The intent element, acting "willfully" with "reason to believe" that the disclosure could cause damage, is too weak to meaningfully separate the evil-doer from the member of the press who is just doing his job;
  3. It does not clearly criminalize publication at all, in contrast to other more carefully-drawn laws; and
  4. The statute does not distinguish between an initial disclosure that actually reveals closely-held secrets and subsequent disclosures that do no incremental harm. By its terms, the statute makes a criminal not merely of Julian Assange (for disclosing the cables to the New York Times and other media outlets), not merely of the New York Times (for disclosing them to the general public), but of all readers of the New York Times who emailed articles to one another or "willfully" discussed the contents of the cables knowing that the government was warning what damage their disclosure was doing.

Judicial interpretation in the AIPAC cases has addressed some of these issues to some degree, but this is not controlling law--just a single district judge's opinion. So we have a grossly overbroad statute that, if taken at face value, is exactly the Official Secrets Act this country has never had. And while everyone acknowledges it cannot be that, nobody really knows what it therefore is.

Narrowing the statute to address these problems might leave a law that looks something like this:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note that is properly classified and not available to the general public and, with intent that such material be used to the injury of the United States or to the advantage of any foreign nation or with reckless disregard for that possibility, willfully publishes, communicates, delivers, transmits or causes to be published, communicated, delivered, or transmitted, to any person not entitled to receive it shall be fined under this title or imprisoned not more than ten years, or both.

Such a law would be much-more-clearly constitutional than the current Espionage Act language, precisely because it would purport to cover only a far narrower range of conduct. Yet ironically, the clarity of such a law would be a disaster for the press. One of the oddities of the current Espionage Act is that its very breadth ensures its non-use against media. Because it covers so much in the way of secondary and tertiary transmission of sensitive data, it effectively covers nothing. Everyone understands that a huge range of its possible applications are unconstitutional, and nobody knows what conduct violates that core of it that could actually sustain a prosecution. Narrow it to a serious attempt at identifying that core, and you effectively legitimize the effort to use it.

Consider the decision by the New York Times to blow the SWIFT program, a matter I discussed the other day and which I think was journalistically indefensible. Under the current Espionage Act, this publication is no more obviously prosecutable than, say, the Times's day-to-day coverage of all manner of defense issues. The Times does both willfully, after all; the information in both cases relates to the national defense; and the Times does it with knowledge that bad actors might use that information to America's detriment. A prosecution under those circumstances would be a reckless decision; the Justice Department would not do it; and the New York Times knows that--meaning that the law as currently written offers virtually no deterrent effect.

The more narrowly-drawn statute, by contrast, would give the Times a lot to think about in the case of the conscious decision to blow a highly-sensitive covert program. And it would give prosecutors a road-map to the circumstances in which criminal charges might have legs. Would a jury find that the newspaper acted with reckless disregard for the damage it might cause to national security? Was the material, in fact, secret and legitimately so? The ironic effect of a tighter law might well be to chill more publication than does the current law--and the filing of actual criminal cases against members of the media.

Be careful what you wish for.