WikiLeaks and the Espionage Act of 1917

From the Summer 2011 issue of The News Media & The Law, page 9.

The video starts silently, with white text on a black screen providing context to its depiction of the killing of 12 people in an Iraqi suburb by the American military.

The haunting video was the first major salvo in WikiLeaks’s intrusion into the American psyche. It was taken from inside an Apache helicopter in a Baghdad suburb during the summer of 2007.

“The stories of most of those who were killed are unknown,” it says. “But among the dead were two Reuters news employees, Saeed Chmagh and Namir Noor-Eldeen.” It identifies Chmagh as a 40-year-old Reuters driver and assistant, who was survived by a wife and four children. It says that 22-year-old Noor-Eldeen came from a family of journalists and “was considered one of the best war photographers in Iraq.”

The helicopter’s radio transmissions are audible in the video. The soldiers zero in on a group of men walking down the street; they believe Noor-Eldeen’s camera is a gun. They open fire. Saeed survives the original attack, but is wounded, and, through the sights of the helicopter, can be seen trying to crawl onto a curb to escape. A minivan, with two children in the front seat, pulls up to try to help him. The helicopter shoots at the minivan, too.

“Oh yeah, look at that!” a man on the radio exclaims after they get a better look at the minivan. “Right through the windshield!”

WikiLeaks allegedly obtained the video from a U.S. Army private named Bradley Manning, who is now in custody facing multiple charges, including violating the Uniform Code of Military Justice and the Espionage Act, for giving WikiLeaks the video, in addition to hundreds of thousands of classified government documents that WikiLeaks later made public.

A fair number of Americans are upset about the disclosures. Members of Congress have called for the prosecution of Julian Assange, the eccentric, Australian mastermind behind WikiLeaks, which bills itself as a “non-profit media organization dedicated to bringing important news and information to the public.”

Some believe it is already possible to prosecute WikiLeaks for distributing classified information under the Espionage Act, and WikiLeaks’ promotion of its work as a form of journalism raises the stakes for the news media. There are also two bills making their way through Congress to amend the act in the aftermath of WikiLeaks, which some say would make it easier to prosecute journalists for publishing classified information.

For media advocates, two questions lie at the heart of these debates. Can Congress punish someone for reporting on classified information that someone else has gathered illegally? And do they even need to amend the Espionage Act to do so, or is it already possible?

First Amendment advocates argue that it would be contrary to the First Amendment to prosecute journalists under the Espionage Act, in either its current form or under the amendments that have been proposed.

“Throughout American history, our government has excessively restricted public discourse in the name of national security,” University of Chicago Law Professor Geoffrey Stone told Congress at a hearing in December. Stone said that prosecuting journalists under the Espionage Act would violate the First Amendment. “Over time, we have come to understand that these episodes from our past were grievous errors in judgment in which we allowed fear and anxiety to override our good judgment and our essential commitment to individual liberty and democratic self-governance.”

Journalists have never been successfully prosecuted

As it is currently written, the Espionage Act of 1917 makes it a crime to hurt the United States or benefit a foreign country by collecting or communicating information that would harm the national defense. It is also a crime to enter an installation or obtain a document connected to the national defense in order to hurt the United States or benefit a foreign country. Knowingly receiving classified information that has been obtained illegally, as well as passing it on, also runs afoul of the Espionage Act.

“The Espionage Act is so vague and poorly defined in its terms, that it’s hard to say exactly what it does and does not cover,” said Steven Aftergood, who directs the Project on Government Secrecy for the Federation of American Scientists.

The U.S. government has never successfully prosecuted anyone other than a government employee for disseminating unlawfully leaked classified information, Stone said in his testimony. Thus, the Supreme Court has never ruled on the constitutionality of such a prosecution.

The closest the Court has come to examining the issue is the famous Pentagon Papers case, New York Times v. United States, when the Court rejected the government’s attempt to prevent The New York Times and The Washington Post from publishing a leaked copy of a top secret study of the Vietnam War.

The Court’s short, unsigned opinion simply said the government had not met its heavy burden of justifying a prior restraint on publication. Concurring opinions went into more detail, reflecting the justices’ different views on the government’s ability to respond to the leaking of classified information.

Justice Potter Stewart’s concurring opinion pointed out that the Court was asked to “prevent the publication . . . of material that the Executive Branch insists should not, in the national interest, be published.” Joined by Justice Byron White, Stewart said he was “convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people.”

White’s own concurring opinion reflects the need to cite the Pentagon Papers case with caution. He emphasized that the Court’s decision was based on the executive branch’s attempt to prevent the publication of something before the fact, rather than Congress trying to impose criminal sanctions after a newspaper published something classified.

“Prior restraints require an unusually heavy justification under the First Amendment, but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication,” White said in a concurring opinion that Stewart joined. “That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.”

In Stone’s congressional testimony, he argued the case applies to any potential prosecution of journalists.

“In the Pentagon Papers case, the Court held that, although elected officials have broad authority to keep classified information secret, once that information gets into other hands, the government has only very limited authority to prevent its further dissemination,” Stone said.

“This is surely a disorderly situation, but it seems the best possible solution,” he said. “If we grant the government too much power to punish those who disseminate information useful to public debate, then we risk too great a sacrifice of public deliberation; if we grant the government too little power to control confidentiality ‘at the source,’ then we risk too great a sacrifice of secrecy and government efficiency. The solution is thus to reconcile the irreconcilable values of secrecy and accountability by guaranteeing both a strong authority of the government to prohibit leaks and an expansive right of others to disseminate them.”

In 2001, the Court said it would be unconstitutional to punish journalists for publishing information that someone else gathered illegally, but it is not clear whether the ruling in Bartnicki v. Vopper would extend to classified information.

The case focused on a 1993 incident in which a Pennsylvania teachers’ union president received a telephone call from the union’s chief negotiator. Amid a contentious round of contract negotiations with the local school board, a strike was looming.

During the telephone call, the president stressed the importance of reacting to the school board’s intransigence.

“If they’re not gonna move for three percent, we’re gonna have to go to their, their homes . . . to blow off their front porches, we’ll have to do some work on some of those guys,” he said in the phone call. “Really, uh, really and truthfully because this is, you know, this is bad news.”

What neither person on the phone call knew was that someone was recording them.

Several months later, when a settlement was reached, a local radio commentator played a tape of the conversation during his talk show. Others followed suit, and local newspapers reported on the content of the conversation. The radio commentator received his copy of the tape from the head of a local taxpayers’ organization, who had found it in his mailbox.

The teachers’ union president sued the media organizations for violations of the Electronic Communications Privacy Act, alleging that the media defendants “knew or had reason to know” that the recording had been obtained illegally and violated the act by broadcasting or publishing the contents of a private telephone conversation.

Once the case made its way to the U.S. Supreme Court, it ruled that, even though an unknown person intercepted the call illegally, the media organizations were not liable for their decision to broadcast the contents of the conversation to the world.

“It would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party,” Justice John Paul Stevens said for the majority. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from a speech about a matter of public concern.”

However, Justice Stephen Breyer emphasized in a concurring opinion that the case’s holding was limited to the specific circumstances at issue, namely that the radio broadcasters acted lawfully up to the time of the final public disclosure and that the information publicized involved “a matter of unusual public concern, namely, a threat of potential physical harm to others.” He said the Court’s holding “does not imply a significantly broader constitutional immunity for the media.”

Media advocates feared that a 2006 case, United States v. Rosen, involving two lobbyists for the American Israel Political Action Committee could become a precedent allowing the prosecution of journalists under the Espionage Act, but the government eventually decided not to continue to prosecute the lobbyists after a federal judge in the Eastern District of Virginia held that the prosecution would have to show beyond a reasonable doubt that the lobbyists acted with a “bad purpose” either to disobey or disregard the law, and that disclosure of the information could potentially harm the United States.

The lobbyists, Steven Rosen and Keith Weissman, were not government employees, like most of the people prosecuted under the Espionage Act. They didn’t steal the classified information themselves; a Defense Department employee had already pleaded guilty to passing classified information to them.

Instead, they were prosecuted for receiving classified information and passing it on to others.

The suggested changes

One bill that Congress is considering that would amend the Espionage Act is the Securing Human Intelligence and Enforcing Lawful Dissemination Act. The bill would make it a crime to publish classified information concerning the human intelligence activities of the United States or any foreign government, or concerning the identity of a classified source or informant of an element of the U.S. intelligence community.

The bill was introduced in the current Congress by then-Sen. John Ensign, R-Nev., and Sens. Joe Lieberman, I-Conn., and Scott Brown, R-Mass.

“The reckless behavior of Wikileaks has compromised our national security and threatened the safety of our troops overseas, and this bipartisan legislation gives the Department of Justice a tool to prevent something like this from happening again,” Brown said in a press release. “While I strongly support government transparency, certain information must be kept classified in order to protect innocent American lives during this time of war and global terrorism.”

By making it illegal to publish information about U.S. intelligence activities, the legislation could possibly criminalize the work that journalists all over the country do every day.

“Although the [SHIELD] Act might be constitutional as applied to a government employee who ‘leaks’ such classified material, it is plainly unconstitutional as applied to other individuals who might publish or otherwise disseminate such information,” Stone told the House of Representatives Judiciary Committee in December. “With respect to other such individuals, the Act violates the First Amendment unless, at the very least, it is expressly limited to situations in which the individual knows that the dissemination of the classified material poses a clear and present danger of grave harm to the nation.”

The second bill that Congress is considering, the Espionage Statutes Modernization Act, is more comprehensive. Introduced by Sen. Ben Cardin, D-Md., it would make it a crime for anyone with unauthorized possession of any classified information to willfully communicate the information to someone not entitled to receive it. It would also make it a crime for anyone with authorized possession of classified information to share it with someone not authorized to receive it, and it would make it a crime to violate a classified information non-disclosure agreement.

“It is breathtaking in its scope,” Aftergood said. “It literally encompasses unauthorized disclosures of any classified information, which is an almost unimaginably broad provision.”

Currently, the Espionage Act defines “classified information” as “information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution.” This means that a valid defense would constitute challenging the reason that the information was classified in the first place, basically arguing that, if the classified information doesn’t relate to national security, no crime has taken place.

Given the problem of overclassification of government documents, that could be a good thing. The government’s former “classification czar,” J. William Leonard, once estimated before a Congressional subcommittee that probably about half of all classified information is overclassified.

However, the proposed changes would include a presumption that information is properly classified, thereby putting the burden on the leaker to rebut that presumption, “something juries would be unlikely to allow him or her to do,” Aftergood said.

“It skews the proceeding against the leaker, and it does not consider the possibility of a public interest defense, [the idea that] the unauthorized disclosure actually served a positive public good, as for example, the leak of the Taguba Report on abuse of detainees at Abu Ghraib prison,” he said. “When that information was made public, it was still classified. Should the person who revealed it go to jail or be given a medal? The authors of the pending legislation say the answer is jail. Others would disagree.”

In 2000, Congress passed a bill similar to the Cardin bill, but President Bill Clinton vetoed it because of concerns that the “provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy.”

Aftergood was careful to point out that efforts to amend the Espionage Act are not necessarily the only aftermath of the WikiLeaks disclosures that could harm the efforts of journalists.

The 2011 Intelligence Authorization Act, enacted June 8, instructs the administration to create a new, automated “insider threat detection” mechanism that is supposed to “ratchet up security within the classified domain,” Aftergood said. There have also been legislative responses that address the internal security of classified government networks.

How might this bill affect journalists reporting on the government? “I think it will instill a sense of paranoia or at least prudence in many individuals who interact with the press,” he said. “To the extent that it is effective, it could mean that some people who in the past might have shared classified records with reporters would no longer do so in the future.”

A January report from the Congressional Research Service said the United States already has criminal statutes that may apply to the prosecution of someone such as Assange, such as the Espionage Act, and the Computer Fraud and Abuse Act, as well as statutes that punish the theft of knowing receipt or retention of stolen or converted government property or records and one that protects information concerning the identity of covert intelligence agents.

“It seems that there is ample statutory authority for prosecuting individuals who elicit or disseminate [classified information], as long as the intent element can be satisfied and potential damage to national security can be demonstrated,” attorney Jennifer K. Elsea said in the report.

“Leaks of classified information to the press have only rarely been published as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it,” she said. “There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.”