The legal pursuit of Wikileaks, a transnational website devoted to publishing secret government documents worldwide, is reaching a boiling point. After publishing tens of thousands of classified U.S. documents revealing details of the war in Afghanistan, the group is now promising to publish more of the same.
The actions of the leaker, alleged to be U.S. Army PFC Bradley Manning, are likely violations of U.S. espionage laws. Mr. Manning was already charged under the Espionage Act with the submission to Wikileaks earlier this year of a classified video showing the death of two journalists in Iraq.
But what about Wikileaks and its founder, Julian Assange? Is a website that encourages people to leak classified information immune from prosecution? There is no clear answer, largely due to the jumbled and archaic system of laws that protect classified information and criminalize its dissemination.
Precedent, most notably the Pentagon Papers case, would seem to indicate that Wikileaks is protected in publishing leaked documents by the First Amendment. The government rarely attempts to prosecute a member of the media for publishing the fruits of someone else's leaks.
But is Wikileaks truly part of the "media?" Can a website that devotes itself exclusively to leaking documents compare itself to The New York Times? Clearly, the Justice Department is reexamining whether Mr. Assange and his website can face criminal prosecution under U.S. law.
Wording in some espionage statutes suggests that anyone who "publishes" information that relates to the national defense is liable for an espionage act violation. So even if Wikileaks qualifies as "media," Mr. Assange still might not be protected by the First Amendment. Even in the Pentagon Papers opinion, Supreme Court Justice Byron White stated that in certain situations, the publication of national defense information could subject media outlets to espionage prosecutions.
Furthermore, could the fact that Mr. Assange solicits these leaks translate into liability for conspiracy to commit espionage? Hypothetically, if evidence is uncovered that Mr. Assange, after receiving the initial Iraq video showing the death of these journalists, solicited additional information from Mr. Bradley or anyone else and encouraged them to leak, then he may face conspiracy liability. This would of course be difficult to prove, unless Mr. Manning agreed to testify.
Add to this the numerous jurisdictional problems posed by the fact that Mr. Assange lives overseas, and one can be sure that successful prosecution would be challenging.
For American politicians and the intelligence world, the question can be expanded: If Mr. Assange and Wikileaks are not liable, should they be? This question begs a closer look at the current system of laws protecting national security information. As U.S. Sen. Benjamin L. Cardin said in May during Senate hearings on the topic, the current statutory framework is an outdated "patchwork" that has failed to change along with current technology and the digital information age.
As relics of World War I and the Cold War era, the espionage laws generally target those who seek to disclose classified information to aid a foreign government, or who have reason to believe that the information will either injure the United States or aid a foreign government. Most commentators agree that the current espionage laws can still effectively punish and deter the classic nation-versus-nation spy cases, as proven by the successful prosecutions of Robert Hanssen and Aldrich Ames. But problems arise when the government is faced with an actor who discloses classified information for other reasons, or to someone other than a foreign agent.
The Wikileaks case highlights the central flaw in espionage laws: They are grossly outdated, drafted in an age when all information was tangible and not electronic. The laws never envisioned anything like the Secure Internet Protocol Router Network (SIPRnet) that thousands of government personnel across the globe routinely use to access troves of classified documents. Mr. Manning is alleged to have accessed SIPRnet, which is essentially a private, classified version of the World Wide Web, to find documents to leak.
The other problem stems from inconsistencies in the statutes criminalizing the misuse of national security information. Some statutes refer to materials "relating to the national defense" (which sometimes, but not always, refers to information deemed classified by the government). Other statutes refer only to information actually marked classified. Some statutes criminalize giving information to an agent of a foreign government, others only to those "not entitled to receive" the information.
Wikileaks would argue that, no matter the language in the statute, it would enjoy First Amendment protection from all prosecutions. Mr. Assange considers Wikileaks a whistle-blower protection intermediary. Rather than leaking directly to the press, and fearing exposure and retribution, whistle-blowers can leak to Wikileaks, which then leaks to the press for them.
Ultimately, if Congress wants to shut down Wikileaks, it may have to draft legislation that more explicitly criminalizes the solicitation of leaks of classified information, if that is in fact what happened. But there is still no guarantee that such a law would be upheld by the Supreme Court. An antiquated intelligence law combined with the media protection laws may make Wikileaks invulnerable to prosecution.
Gilead Light, a member of the white collar criminal defense group with law firm Venable LLP in Washington, has worked on a jury trial involving charges of espionage and other national security violations. His e-mail is firstname.lastname@example.org.