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.
Will Julian Assange be indicted on espionage charges? His lawyers think so, with one of them telling Al-Jazeera’s David Frost on Sunday that a federal grand jury in Alexandria, VA is now considering espionage counts against the WikiLeaks editor-in-chief.
U.S. Attorney General Eric Holder has already authorized an investigation of WikiLeaks, with the Washington Post reporting that Assange could be tried under the Espionage Act of 1917. Several U.S. political leaders—such as Sens. Joe Lieberman (I-CT) and Dianne Feinstein (D-CA)—have argued for just such a proceeding. And this Thursday, the House Judiciary Committee will hold a hearing on “the Espionage Act and the legal and constitutional issues raised by WikiLeaks.” It looks like there’s finally bipartisan consensus in Washington, with everyone from the Obama White House to Republican congressional leaders condemning the Australian hacker who serves as the public face of WikiLeaks.
But one member of Congress isn’t bashing WikiLeaks and doesn’t think invoking the Espionage Act makes sense. Texas GOP Rep. Ron Paul told The Cutline that he doesn’t “want people messing with the Internet” and doesn’t agree with government measures that would infringe on “people’s rights to speak out.”
It’s not the first time Paul’s been on his own politically. Paul said he’s not surprised that Republicans, in the wake of the WikiLeaks cable dump, have come out against Assange. However, Paul said he’s “very disappointed with the progressives who are for free speech.” He suggested that formerly vocal progressives have now “been neutralized by this administration.”
Paul said he doesn’t understand how Assange “could commit espionage when he didn’t steal anything.” Indeed, the government believes army private Bradley Manning leaked the hundreds of thousands of documents to WikiLeaks. “If he can be charged, maybe the Washington Post and the New York Times and others can be charged,” Paul added.
Paul isn’t the only one who’s raised the specter of an Espionage Act prosecution affording a slippery-slope argument that could justify espionage charges against news organizations reporting on the WikiLeaks documents. Several legal experts pointed out to ABC News on Monday that the U.S. Justice Department could have a tough time actually enforcing the World War I-era law, which—as written—could also implicate severl such news organizations that published cables, such as the New York Times and the U.K. Guardian–or even anyone who’s read the cables or passed them along to friends over Twitter or Facebook.
American University law professor Stephen Vladeck told ABC News that “one of the flaws of 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.”
So far, WikiLeaks has published 1,344 of the quarter-million State Dept. cables now in the group’s possession; the Times has published some selective cables from the large cache. Countless journalists and non-journalists alike have written, blogged, tweeted, shared and discussed information in the classified cables–including, of course, Yahoo News writers.
Therefore, the Espionage Act could affect them, too. Benjamin Wittes, a legal analyst at the Brookings Institution, said that the act would cover any “news stories, all blogging on them, and all dinner party conversations about their contents.” He added that “taken at its word, the Espionage Act makes felons of us all.”
Still, Lieberman argues that Assange should be indicted for spying and has left open the possibility that news organizations could also be tried. Lieberman, through a spokeswoman, praised companies such as Amazon, PayPal and Visa for severing ties with WikiLeaks, saying they “have done the right thing and have acted as good corporate citizens.” But Lieberman clearly doesn’t feel the same way about some in the press.
“The news organizations that have reprinted the State Department cables have not been good citizens, but whether to prosecute news organizations is a difficult question that should be taken up and decided by Justice Department officials,” Lieberman said in a statement. “For the future, members of Congress should engage in a discussion about whether to change the law, within the limits of the First Amendment, to more precisely address media disclosure of secret documents.”
Feinstein, in a statement, harshly criticized WikiLeaks as she did in her Wall Street Journal op-ed last week. However, Feinstein made a distinction between Assange’s group and the Times.
“WikiLeaks operates like a proliferator and an enabler of illegal activity,” Feinstein said. “The New York Times considers its responsibility as journalists, including consulting with government and redacting information; their mission is to inform our democracy without recklessly and arbitrarily putting our national security at risk. Julian Assange is on-record as harboring intent to harm the U.S. government, with disregard for the consequences—both to the government and to innocent people. The New York Times does not have this bad intent.”
Meanwhile New York GOP Rep. Peter King says he doesn’t see a big difference between WikiLeaks and Times. He said Friday on Fox News that the Gray Lady should also be targeted. “Well, in my mind we should go after both,” King said. “Let’s go after Assange first, but I called four years ago for prosecution of The New York Times when they disclosed the SWIFT program, which was absolutely essential to America’s anti-terrorist efforts.”
If journalists are prosecuted for espionage, Lichtblau said, “there’s an awful lot of public information that’s going to be off limits.”
The Washington Post’s Dana Priest—who won a Pulitzer for her investigation of the CIA’s “black” sites—has also felt the wrath of politicians over her investigative reporting. She said that “one of the reasons they criticize publicly is they don’t want other people to get the idea that they should be doing this.” Similarly, Priest said the result could be a “chilling effect on sources.”
Priest says she doesn’t consider Assange a journalist—in her judgment, he’s more of an intermediary, who channels leaked documents for a source to news organizations. But she says she’s concerned any time someone who’s not a government official is charged with dissemination of classified documents because “it does get closer to what we do as journalists.”
Priest said that some now invoking the Espionage Act “have gone overboard,” especially given the actual revelations in the State Dept. cables. “As [Defense Secretary Robert] Gates said, these documents did not damage national security,” Priest said. “What they told us are interesting, important things about how the world works.”
(Photo from pro-Assange in Amsterdam, Netherlands on Dec. 11, 2010: Photo/ Evert Elzinga. Photo of British news stand on Nov. 29, 2010: AP Photo/Sang Tan)
WikiLeaks founder Julian Assange’s lawyer has said she expects US prosecutors to charge him with espionage soon.
Jennifer Robinson was quoted as saying a US indictment was imminent but offered no more details.
The US Justice Department has been looking into a range of criminal charges, including violations of the 1917 Espionage Act, that could be filed after the whistle-blowing website released hundreds of confidential US diplomatic cables.
Cyber activists attacking organizations seen as foes of WikiLeaks briefly blocked a Dutch prosecution website Friday after a 16-year-old suspected of involvement in the campaign was arrested in the Netherlands.
The activists also tried to block the website of online payment firm Moneybookers, but denied their attacks were intended to create business turmoil or badly disrupt online Christmas shopping.
US authorities said they had not pressured companies to stop working with WikiLeaks.
Attorney General Eric Holder said: “We have not pressured anybody to do anything.”
Online retail and web-hosting powerhouse Amazon stopped hosting WikiLeaks’ website last week, and Thursday it briefly became the pro-WikiLeaks campaigners’ main target – before they admitted it was too big for them, for the moment.
The statement by the activists, who collectively call themselves “Anonymous,” added that a lack of firepower was not the only reason the attack on Amazon had not succeeded. They felt “attacking a major online retailer when people are buying presents for their loved ones, would be in bad taste.”
BONITA SPRINGS —
When trade secrets are stolen, it often throws executives into a panicked frenzy as they attempt to minimize damage. How can corporations protect their intellectual properties, and what should they do if espionage occurs?
These issues are central to the Federal Bureau of Investigation’s Economic Espionage Unit, which has taken on a much larger role in recent years. Although such white-collar crimes don’t usually threaten national security, they do threaten Americans’ livelihood and quality of life.
Peter J. Lapp, FBI Unit Chief for Economic Espionage, spoke to a crowd of about 265 at the Hyatt Regency Coconut Point December 3 as the featured guest for the Southwest Florida Speakers Assembly, which brings high profile speakers to Estero each month.
Lapp, who has been a special agent with the FBI since 1998, highlighted several high-profile cases in an attempt to help business professionals minimize their risk of trade secret theft.
“My goal is to create awareness about this problem and try to get companies to start thinking about how you’re going to be reacting to this and how you’re going to be proactive,” Lapp said. “Hopefully, if they’re proactive, they can prevent a loss before it happens.”
Lapp also aims to show corporations how to “be a good victim” if trade secrets are leaked. He urges business management to form a written plan for investigating alleged crimes, calculating losses and communicating with the FBI.
Lapp and his unit have investigated cases involving dozens of corporate giants, including Coca Cola, DuPont, Motorola and even Home Depot. “Who would’ve thunk that Home Depot had trade secrets?” Lapp joked. “I thought they sold hammers and nails.”
The most recent economic espionage case involves Indianapolis-based Dow Chemical, while another case heading to trial charges Jin Hanjuan of stealing $600 million in trade secrets from Motorola.
Lapp personally led the investigation of Gary Yonggang Min, who was convicted in 2007 of stealing more than $400 million of proprietary technology from DuPont. It’s estimated Min downloaded nearly 100 percent of DuPont’s trade secrets regarding Kevlar technology, Lapp said.
The biggest case the unit has investigated was against Dongfan “Greg” Chung, a naturalized citizen from China who handed over 250,000 confidential documents to the Chinese government during his 30-year stint at Boeing. He was convicted to 16 years in prison in 2009, the strongest sentence ever handed down for economic espionage.
Many in Friday’s crowd expressed dismay that most individuals convicted of selling trade secrets receive sentences of just 18 to 24 months in prison.
“I would like to see some heavier sentences,” Lapp noted, at one point joking, “I like to put people in jail.”
Although many of the convicted spies have been Chinese nationals, Lapp identified “smart people” with PhDs and MBAs as the group most likely to possess the skill set necessary for using trade secrets for personal gain.
Many attendees asked questions about the current WikiLeaks scandal, which is being handled by another unit of the FBI’s Counterespionage Section. While Lapp remained tightlipped, he commented, “It’s a high priority investigation. Now that the information is out there, I’m not sure what can be done to retrieve it. The damage is done.”
He insisted government and private industry need to do a better job of limiting employees’ access or ability to download sensitive information. “Once you give information to people, you’re exposing it to risk. Having good security awareness is huge.”
As always, several outstanding local students were invited to join the Speakers Assembly. Jordan Roth, a senior at Fort Myers High School, was especially eager to hear from an FBI agent, since he aims to work in the CIA one day.
“It was a really great opportunity,” said Roth, who participated in a small group meeting with Lapp before the luncheon. “He helped me out with possible career paths and college study.”
The lecture, sponsored by The Daily News and The Banner, was part of the Speakers Assembly’s 15th anniversary season. Last month, more than 400 members gathered to hear from Forbes President Steve Forbes. Next month will bring Louis E. Lataif, dean of School Management at Boston University.
Membership in the Speakers Assembly is open to those who “seek to be enlightened, educated and entertained” and is comprised of 71 percent retired executives and business owners. Jackie Hauserman, a Realtor serving as this season’s president, sums it up this way: “The thing I love about this is the intellectual stimulation you get.”
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This week, Senators Joe Lieberman and Dianne Feinstein engaged in acts of serious aggression against their own constituents, and the American people in general. They bothinvoked the 1917 Espionage Act and urged its use in going after Julian Assange. For good measure, Lieberman extended his invocation of the Espionage Act to include a call to use it to investigate the New York Times, which published WikiLeaks’ diplomatic cables. Reports yesterday suggest that U.S. Attorney General Eric Holder may seek to invoke the Espionage Act against Assange.
These two Senators, and the rest of the Congressional and White House leadership who are coming forward in support of this appalling development, are cynically counting on Americans’ ignorance of their own history — an ignorance that is stoked and manipulated by those who wish to strip rights and freedoms from the American people. They are manipulatively counting on Americans to have no knowledge or memory of the dark history of the Espionage Act — a history that should alert us all at once to the fact that this Act has only ever been used — was designed deliberately to be used — specifically and viciously to silence people like you and me.
The Espionage Act was crafted in 1917 — because President Woodrow Wilson wanted a war and, faced with the troublesome First Amendment, wished to criminalize speech critical of his war. In the run-up to World War One, there were many ordinary citizens — educators, journalists, publishers, civil rights leaders, union activists — who were speaking out against US involvement in the war. The Espionage Act was used to round these citizens by the thousands for the newly minted ‘crime’ of their exercising their First Amendment Rights. A movie producer who showed British cruelty in a film about the Revolutionary War (since the British were our allies in World War I) got a ten-year sentence under the Espionage act in 1917, and the film was seized; poet E.E. Cummings spent three and a half months in a military detention camp under the Espionage Act for the ‘crime’ of saying that he did not hate Germans. Esteemed Judge Learned Hand wrote that the wording of the Espionage Act was so vague that it would threaten the American tradition of freedom itself. Many were held in prison for weeks in brutal conditions without due process; some, in Connecticut — Lieberman’s home state — were severely beaten while they were held in prison. The arrests and beatings were widely publicized and had a profound effect, terrorizing those who would otherwise speak out.
Presidential candidate Eugene Debs received a ten-year prison sentence in 1918 under the Espionage Act for daring to read the First Amendment in public. The roundup of ordinary citizens — charged with the Espionage Act — who were jailed for daring to criticize the government was so effective in deterring others from speaking up that the Act silenced dissent in this country for a decade. In the wake of this traumatic history, it was left untouched — until those who wish the same outcome began to try to reanimate it again starting five years ago, and once again, now. Seeing the Espionage Act rise up again is, for anyone who knows a thing about it, like seeing the end of a horror movie in which the zombie that has enslaved the village just won’t die.
Let me explain clearly why activating — rather than abolishing — the Espionage Act is an act of profound aggression against the American people. We are all Julian Assange. Serious reporters discuss classified information every day — go to any Washington or New York dinner party where real journalists are present, and you will hear discussion of leaked or classified information. That is journalists’ job in a free society. The White House, too, is continually classifying and declassifying information.
As I noted in The End of America, if you prosecute journalists — and Assange, let us remember, is the New York Times in the parallel case of the Pentagon Papers, not Daniel Ellsberg; he is the publisher, not the one who revealed the classified information — then any outlet, any citizen, who discusses or addresses ‘classified’ information can be arrested on ‘national security’ grounds. If Assange can be prosecuted under the Espionage Act, then so can the New York Times; and the producers of Parker Spitzer, who discussed the WikiLeaks material two nights ago; and the people who posted a mirror WikiLeaks site on my Facebook ‘fan’ page; and Fox News producers, who addressed the leak and summarized the content of the classified information; and every one of you who may have downloaded information about it; and so on. That is why prosecution via the Espionage Act is so dangerous — not for Assange alone, but for every one of us, regardless of our political views.
This is far from a feverish projection: if you study the history of closing societies, as I have, you see that every closing society creates a kind of ‘third rail’ of material, with legislation that proliferates around it. The goal of the legislation is to call those who criticize the government ‘spies’, ‘traitors’, enemies of the state’ and so on. Always the issue of national security is invoked as the reason for this proliferating legislation. The outcome? A hydra that breeds fear. Under similar laws in Germany in the early thirties, it became a form of ‘espionage’ and ‘treason’ to criticize the Nazi party, to listen to British radio programs, to joke about the fuhrer, or to read cartoons that mocked the government. Communist Russia in the 30’s, East Germany in the 50’s, and China today all use parallel legislation to call criticism of the government — or whistleblowing — ‘espionage’ and ‘treason’, and ‘legally’ imprison or even execute journalists, editors, and human rights activists accordingly.
I call on all American citizens to rise up and insist on repeal of the Espionage Act immediately. We have little time to waste. The Assange assault is theater of a particularly deadly kind, and America will not recover from the use of the Espionage Act as a cudgel to threaten journalists, editors and news outlets with. I call on major funders of Feinstein’s and Lieberman;s campaigns to put their donations in escrow accounts and notify the staffers of those Senators that the funds willonly be released if they drop their traitorous invocation of the Espionage Act. I call on all Americans to understand once for all: this is not about Julian Assange. This, my fellow citizens, is about you.
Those calling for Julian Assange’s criminalization include:
1. Rep. Candice Miller
2. Jonah Goldberg, Journalist
3. Christian Whiton, Journalist
4. Bill O’Reilly, Fox News Journalist
5. Sarah Palin, Member of the Republican Party, former candidate
6. Mike Huckabee, Politician
8. Prof. Tom Flanagan
9. Rep. Peter King
10. Tony Shaffer
11. Rick Santorum
12. Rep. Dan Lugren
13. Jeffrey T. Kuhner, Journalist The Washington Times
14. Rep. Virginia Foxx
15. Sen. Kit Bond, Vice Chairman of the Senate Intelligence Committee
16. Sen. Joe Liberman
17. Sen. Charles Schumer
18. Marc Thiessen, Columnist
So far, WikiLeaks 