[LINK] Wikileaks Has Committed No Crime

[Jon Seymour]

from http://www.lasisblog.com/2010/11/12/wikileaks-has-committed-no-crime/:

By Trevor Timm

    A cantankerous press, an obstinate press, a ubiquitous press must
be suffered by those in authority in order to preserve the even
greater values of freedom of expression and the right of the people to
know.” –Judge Murray Gurfein, June 1971.

Since August, when Wikileaks first published 91,000 classified
documents relating to the Afghanistan War, and in October, when they
published approximately 400,000 more relating to the War in Iraq, many
conservative commentators have been clamoring for the Justice
Department to prosecute Wikileaks for publishing classified
information.

But in the United States, generally publishing classified information
is not a crime. The sort of information that a news organization can
be prosecuted for publishing is limited to: nuclear secrets (Atomic
Energy Act), the identities of covert agents (Intelligence Identities
Protection Act), and certain forms of communications intelligence
(Section 798 of the Espionage Act).

Perhaps lamenting that the U.S. does not have an Official Secrets Act
like the United Kingdom, right wing columnists have consistently
misinterpreted these Acts, or have cited other provisions of our
espionage laws which almost surely do not apply to Wikileaks.

The most commonly cited statute by those who advocate prosecuting
Wikileaks is Section 793(e) of the Espionage Act. In August, former
Bush speechwriter Marc Theissen linked to this section in an article
for the Washington Post when he wrote that Wikileaks is “a criminal
enterprise” whose founder, Julian Assange, should be arrested by U.S.
forces on foreign soil, international law be damned.

But this provision does not apply to those who publish information.

Section 793(e)reads “Whoever having unauthorized possession of, access
to, or control over any document…relating to the national
defense…willfully communicates… the same and fails to deliver it to
the officer or employee of the United States entitled to receive
it…[s]hall be fined under this title or imprisoned not more than ten
years, or both.”

As made clear in the Pentagon Papers case, the word “communicates” was
never meant “to encompass publication” or to affect the press.
Congress included the word “publish” in three other sections of the
Act but intentionally left it out of 793. As the legislative history
of this provision states, “Nothing in this Act shall…in any way to
limit or infringe upon freedom of the press or of speech as guaranteed
by the Constitution of the United States.”

Justice Douglas referenced the legislative history in his concurring
opinion, when he wrote of Section 793, “it is apparent that Congress
was capable of, and did, distinguish between publishing and
communication in the various sections of the Espionage Act.”

Washington Times columnist Tony Blankley wants Wikileaks charged under
a similar provision in the Espionage Act, Section 794(b), which does
include the word “publish.” Yet this statute applies only to
information that is published with intent to deliver it to the enemy,
a fact any prosecutor would have to prove beyond a reasonable doubt.
While Wikileaks admits it intended to affect U.S. public opinion of
the war (as Daniel Ellsberg did with the Pentagon Papers), this is far
different than intending  the information for the enemy. The documents
were first disseminated to only domestic and allied country newspapers
to effect public opinion of the war, and Wikileaks redacted names and
other information in the Iraq War logs. And while Wikileaks was
criticized for not redacting names in the Afghanistan files, it had
asked the government for help redacting names from the documents
through an intermediary—the New York Times—and the government declined
to help.

Further, Section794 sets out specific information that is prohibited
such as troop and ship “movement[s]” and military “plans,” emphasizing
future missions, while the Iraq and Afghanistan leaks consisted of
after-action reports about what had already taken place. In other
words: history.

Regardless of the specificity of Section 794, there is no proof the
documents have led to any harm of U.S. soldiers. Although Chairman of
the Joint Chiefs of Staff Admiral Mike Mullen said Wikileaks will have
“blood on its hands,” the Pentagon later admitted, “We have yet to see
any harm come to anyone in Afghanistan that we can directly tie to
exposure in the Wikileaks documents.”  Admittedly, that U.S. forces
haven’t be harmed by the publication of these documents yet is not
guarantee against a harm yet to come.  Still, it is worth noting that
despite the hysteria of the conservatives, and their predictions of
disaster resulting from Wikileaks’ leaks, we know of no ramifications
from the publication whatsoever.

Other commentators have cited Section 798 of the Espionage Act, a
provision that has previously alarmed journalists because it has no
intent requirement like Sections 793 and 794. In other words, someone
can be prosecuted under this act, no matter the motivations behind
publication or the audience it was intended for. But these
commentators do not seem to have analyzed the law beyond that point.
If they did, they would realize, as Salon.com columnist Glenn
Greenwald points out, Section 798 covers “only very narrow categories
of information (i.e., cryptography, signals communication
intelligence, or interception of foreign governments’ communications)
which plainly do not encompass the leak of the Afghan [or now Iraq]
war documents.”

No media outlet has ever been charged under Sections 793, 794 or 798.
The Bush Administration—not exactly a friend to the press—considered
prosecuting the New York Times under Section 798 for its story on the
NSA’s most likely illegal warrantless wiretapping program, which fits
more squarely under the definition of communication intelligence. Yet
even then, the Justice Department declined to do so.

Perhaps realizing these realities, during the most current leak of
Iraq War documents, many commentators seem to have dropped the
pretense that Wikileaks could be charged under a specific statute at
all.

Jonah Goldberg openly wondered in the Chicago Tribune and several
other newspapers last week, “Why wasn’t Julian Assange garroted in his
hotel room years ago? It’s a serious question.” Mr. Goldberg most
likely knows the answer is because assassination is illegal (Er, at
least it used to be).

The New York Sun, after asking “What would our greatest leaders expect
President Obama to do in respect of Julian Assange?” suggested FDR or
Lincoln would have tried Assange for treason.  The Sun probably knows
Assange is a foreign citizen, making a treason charge impossible.

And former Bush State Department official Christian Whiton said the
Wikileaks organization should be deemed “enemy combatants, paving the
way for non-judicial actions against them.”  Judging by Whiton’s
refusal to elaborate on his comments, he probably knows that will
never happen either.

All of this evidence suggests that the Justice Department’s statement
saying they are “exploring possible criminal charges” against
Wikileaks is just posturing.

As Timothy Matusheski, a lawyer working with Wikileaks and Mr.
Assange, said, “They accuse him of breaking the law. But they haven’t
said what law.”   Perhaps because they can’t find one.