The Possible Prosecution of WikiLeaks

The U.S. Justice Department is apparently considering prosecuting Julian Assange, the founder of WikiLeaks, which is a Web site that publishes classified documents from governments, under the rarely used Espionage Act of 1917. Such a prosecution would have adverse effects on the American people’s right to know what their government is doing in a republic that is supposed to be run by them.

Ironically, the U.S. government may have leaked the threat of prosecution to coerce Assange into giving back 76,000 classified documents on the war in Afghanistan and deleting them from his Web site, which the Pentagon has demanded. More important, this threat may be meant to intimidate Assange from making public another 15,000 documents that he says will be even juicier than the previous release.

The Espionage Act, originally passed during World War I, was designed to prosecute spies from foreign powers. Yet Assange, who is Australian and spends most of his time in Belgium, Iceland, and Sweden, is hardly a foreign spy. While spies operate in the shadows and try to help foreign governments against the United States, Assange gets documents employees of various governments willingly give him and publishes them widely so citizens can see what their governments are up to.

The threatened prosecution may be just a bluff, because the Justice Department recently was forced to drop a similar case against two American pro-Israel lobbyists for taking documents from Larry Franklin, a Department of Defense employee who was successfully prosecuted for violating his secrecy oath. It is probably kosher, although somewhat hypocritical, for the government to prosecute government employees, such as Franklin and Pfc. Bradley Manning, a U.S. intelligence analyst who allegedly leaked a video of U.S. helicopter gunships killing a Reuters journalist in Iraq and who is suspected of leaking the treasure trove of documents from Afghanistan. The hypocrisy comes in because the Justice Department leaked the threat of prosecuting Assange, intentions that are usually kept secret, and high-level government officials regularly leak highly classified information to further their own policy agendas during bureaucratic turf battles. However, prosecuting people who just publicize leaks threatens all journalists who regularly publish stories using leaks from government officials.

Such journalistic stories are valuable and necessary, because much hush-hush information is overclassified, is kept under wraps only because it is embarrassing to the U.S. government, or is classified to keep the public in the dark about questionable government policies or actions. During the Cold War and continuing to this day, the American public is often the last to know information that is common knowledge among intelligence agencies of adversarial nations. Excessive government secrecy is a serious and underrated problem in a republic and has been exacerbated by the spike in clandestine government actions in the Bush-Obama war on terror.

If the government of a republic is going to keep secrets from its own people for their own good (faith is required here), they should keep the restricted information to the minimum. If the government drastically reduced its vast storehouse of secrets to what was truly needed to protect intelligence agents and troops in the field, whistleblowers such as Manning would have much less reason to leak and would likely have more respect for the necessity not to disclose the remaining vital information.

Most important, if a republican government cannot keep its secrets secret, it should not prosecute third-party, non-governmental recipients of the material, but should concentrate on plugging the leaks in its security system.
Ivan Eland

This article first appeared in The Independent Institute and is republished with permission.


  1. says

    ¶In Presidential Order 12958 it is clear Julian Assange is in violation in, Part 1. Original Classification, Sec. 1.1. Classification Standards that: (b) Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information.(c) The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.

    ¶Under 18 U.S.C. § 793 : US Code – Section 793: Gathering, transmitting or losing defense information, a ten year prison sentence and a $10,000 fine are the sanctions, “(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.”

    ¶Interfering with military operations and supporting America’s enemies during wartime, promoting insubordination in the military, or interfering with with military recruitment are prohibited .In 1919, the U.S. Supreme Court unanimously ruled in Schenck v. United States the act did not violate the free speech rights of those convicted under its provisions.While a great deal of caselaw on free speech has evolved since then, the k.ey feature of the US Code is those involved intend or know “… information is to be used to the injury of the United States…”

    ¶ That the names of Afghan individuals who have been allies of the US were revealed, injuring US military and diplomatic mission there, is a fact. In the text of the US Code, the onus is put on those who released the information to prove they did not intend that.Those 77,000 Afgans who reported the Taliban for rapes, robberies, kidnappings, extortions, and murders are the first victims of Assange and they are being victimized all over again.

  2. says

    If you believe in total openness on all information, tell me your home address, phone number, mother’s maiden name, credit card number, social security number [if you have one], the name of your favorite pet, and your date of birth. I will show you all the journalistic integrity Assange did by publishing it all over the Net. You will get the same redaction as 77,000 Afghans did that are now at risk.

  3. pigdog67 says

    I am against the wars in Iraq and Afghanistan as I think they are a waste of money. Now they are cutting of peoples unemployment insurance. If Congress and President could be jailed for not balancing the budget and for declaring wars for their entertainment then we could have a better society. Our congress and President are just plain out of control. Absolute power corrupts absolutely. It will all end badly. 99% of us are Americans are going to end up starving due to the debt. If WikiLeaks can get this much info, imagine how much the Chinese have that they are not telling us about.

  4. Marshall says

    I was watching a news station some time ago. It was reporting on a crime and they stated they did not yet have all the facts. They went on to say which facts they did not yet have and I believe some of them I did not need to know. The police need to know, but not me.
    Thanks for saying you did not want your intel spooks exsposed and that is the right idea. But these papers may do just that, exspose some people who gather intel or those who tell them the info. The man known as Assange is receiving stollen goods and he knows it. So any law that can be used to shut him down is fine with me.

    I have worked in areas where the information was so restricted they did not even tell me info I could have used at the time. I found out only later and was a little ticked. We do not even tell our friends who and what wer are or doing. By the way, the helo hit was made on a group of armed men, the news guys took their lives into their own hands by being to near such people. It is known as collateral damage, they were not really killed, funny way to put it but it is covered under the rules of war.

  5. Elaine says

    Yes, we do like to know what this administration is doing, but we do not want to kill our troops doing it. I have said all along that we fought wars in the past without an internet. Can they not come up with something in code & put out there without getting our troops killed because of these people who think it is more important to tell the general public then it is to try & help save our troops lives. I for one even as much as I hate this administration, that I would rather save our troops lives!!!!

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