There’s been a lot of discussion at Opinio Juris this week about whether Julian Assange, the founder of Wikileaks, can be prosecuted under the Espionage Act. See their posts here, here, and here. And read the text of the Espionage Act here. Here’s a relevant portion:
Whoever, for the purpose aforesaid [e.g., obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation], and with like intent or reason to believe, copies, takes, makes, or obtains, … any … document, writing, or note of anything connected with the national defense; or
(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, … or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or….
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, … 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; ….
Shall be fined under this title or imprisoned not more than ten years, or both.
There’s one problem though. There’s absolutely no evidence that Assange had any intent to harm the United States or any belief that the information he received would be used against the United States. In fact, there’s an ample amount of evidence suggesting the complete opposite. Assange is dismissive of claims that the leaked documents put Americans at risk. From his recent TIME interview:
Well, this sort of nonsense about lives being put in jeopardy is trotted out every time a big military or intelligence organization is exposed by the press. It’s nothing new, and it’s not an exclusively American phenomenon by an means. It goes back at least 50 years, and in extremely different forms hundreds of years before that, so that sort of reactionary sentiment is equally expected. We get that on nearly every post that we do. However, this organization in its four years of publishing history — we don’t need to speculate, it has a history — has never caused an individual, as far as we can determine or as far anyone else can determine, to come to any sort of physical harm or to be wrongly imprisoned and so on.
He also speaks of the care he takes to avoid causing harm:
RS: And how — and I know we’re running out of time, but — and the standards by which you do the redaction, how would you define that?
JA: Carefully. Also, what we have asked the State Department, we have formally asked the State Department for assistance with that. That request was formally rejected, and they also refused to engage in any harmonization [variant: harm minimization] negotiation. So that tends to lead us to the view, given what we think about it, that they’ve being working on the material for some four months now, and we have intelligence of many organizations and individuals [inaudible] have been contacted by the State Department. They do not believe that there are many people that would be vulnerable, but we are still conducting with [inaudible], and the New York Times, the State Department already mentioned eight broad areas of concern. And some of those were people trying to cover up some embarrassing activities, which the New York Times also rightfully rejected.
So I don’t see how I anything he did violates the Espionage Act. And, as Assange notes, an attempt to prosecute Assange or Wikileaks could have the opposite of the intended effect:
However, the U.S. Espionage Act is widely viewed to be overbroad, and that is perhaps one of the reasons it has never been properly tested in the Supreme Court. I think it was maybe found to be unconstitutional and struck out. Now we understand that there are attempts by [Attorney General Eric] Holder and others in the U.S. Administration to shoehorn the Espionage Act, Section G in particular, onto legitimate press functions. Those efforts are dangerous in the sense that they may give rise to a Supreme Court challenge, which throws out the Espionage Act, or at least that section, in its entirety. If that succeeds, that will of course only be good business for WikiLeaks, because the rest of the U.S. press will be further constrained and people will simply come to us.
