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.