The American Legion magazine | 6.1.11
By Alan W. Dowd
Some policymakers, such as Sen. Dianne Feinstein (D-Calif.), want to prosecute Julian
Assange under the Espionage Act of 1917. The First Amendment, she argues, “is
not a license to jeopardize national security.”
[i]Likewise, Sen. Joseph Lieberman (I-Conn.) wants the Justice Department to
indict Assange for “the most serious violation of the Espionage Act in our
history.” He also thinks the Justice Department should investigate whether
The New York Times is guilty of criminal
activity.
[ii]
The relevant sections of the Espionage Act make it
illegal “in a time of war or in case of national emergency” to possess or
transmit “information relating to the national defense” that “the possessor has
reason to believe could be used to the injury of the United States or to the
advantage of any foreign nation.”[iii]
In addition, the Act makes it clear that anyone who
“receives or obtains or agrees or attempts to receive or obtain” such
information “connected with the national defense, knowing or having reason to
believe ... that it has been or will be obtained, taken, made, or disposed of
by any person contrary to the provisions of this chapter” is in violation of
the law.
One or both of these sections would seem to cover
Assange. Of course, any prosecution of Assange would be complicated by the fact
that he is an Australian citizen.
It’s also complicated by First Amendment issues. In
Feinstein’s view, however, Assange “is no journalist” but rather “an agitator
intent on damaging our government.”
Nor is the First Amendment a guaranteed refuge for The New York Times, according to Paul D. Miller of the
National Defense University, who argues that the Supreme Court case relating to the Pentagon Papers “is a poor guide
to Espionage Act prosecutions” because the Nixon administration “sought to
prevent the Times from publishing,
not bring criminal charges against it for what it had already published.” The
Court concluded that attempts at prior restraint must meet a higher standard
than attempts to prosecute an entity for publishing the sort of secrets
protected by the Espionage Act.[iv]
“The Court did not invalidate the Espionage Act, nor
did the ruling acquit The New York Times,”
Miller observes in a recent foreignpolicy.com essay. “In fact, Supreme Court
Justice Byron White, in his concurrence, practically invited the administration
to pursue prosecution against The New
York Times after the publication was completed.”
Since “many but not all
sections of the Espionage Act require demonstrating an intent to harm the
United States,” Miller argues that it’s time to replace the Espionage Act with what
he calls a “Secrecy Act” that defines as a crime “the leaking and publishing of
classified information regardless of intent.”[v]
[i] Diane
Feinstein, “Prosecute Assange under the Espionage Act,” Wall Street Journal,
December 7, 2010.
[ii] Gautham
Nagesh, “Liberman: NYT may have committed crime by printing WikiLeaks docs,”
The Hill, December 7, 2010.
[iii] As
cited in Jennifer K. Elsea, “Criminal Prohibitions on the Publication of
Classified Defense Information,” CRS Report to Congress, December 6, 2010.
[iv] Paul
Miller , “Replace the Espionage Act,” ForeignPolicy.com, December 6, 2010.
[v] Miller.