But blaming WikilLeaks for exposing the fact that the U.S. cannot always keep its secrets seems bizarre. The leaker of the documents is the person who broke the rules, not the publisher. And while it’s the leaker who, under the tradition and precedent of U.S. law, would bear legal responsibility, it’s worth a moment’s thought as to the responsibility of the government for creating conditions under which such a massive trove of classified documents could be squired out so easily—perhaps on a burned CD marked up to look like a Lady Gaga mix.
Take a step back and assess what WikiLeaks has actually done, and how it differs from long accepted and protected aspects of traditional national security reporting. The simplest narrative is that the organization, having hung out a Leaks Welcome sign, obtained some classified material. Then they published it, or provided it to reporters who published stories based on it.
With that dispassionate rendering of events, it’s quite difficult to see significant legal differences between what WikiLeaks has done and what newspaper, television, and magazine reporters do all the time. To offer one example, think of when The New York Times published cables from the U.S. ambassador to Afghanistan, Karl Eikenberry, in January 2010. That diplomatic cable was more heavily classified than the vast majority obtained by WikiLeaks, but it followed a similar course. It was given to the Times by someone, and the Times published it with some minor redactions—just as WikiLeaks has so far done with the cables.
The United States has never convicted a journalist for publishing classified information—they’ve never even undertaken such a prosecution. Attempts to prosecute non-journalistic third parties for transmitting classified information that they received from government employees have been rare, too—the most prominent case, involving two pro-Israel lobbyists, was brought in 2005 by the Bush administration, and finally fell apart in 2009.
The case drew well-founded concerns that if the two were convicted, it would establish a court precedent that could create something akin to Britain’s Official Secrets Act, which does prohibit the dissemination—and not only the leaking—of some national security secrets. It could mean prohibiting a category of speech—reproducing classified documents, or perhaps even just describing their contents—by persons (journalists, other publishers) who have no official obligation to keep them secret.
The pitfalls of such a law are immediately clear: it would allow journalists to be prosecuted for reporting on classified matters. Large swaths of our government—the State Department, the military, the Department of Energy, the Department of Homeland Security—would immediately become a legal minefield for reporters seeking to give citizens as complete a picture as possible.
So far, the only indications that the government has been serious about its feints towards prosecuting WikiLeaks have been from Assange’s own lawyers, who have said that they expect his indictment under the Espionage Act is “imminent” and that they’ve heard word (through the Swedes, not directly from U.S. sources) that a grand jury has been empanelled to look at the case.
In mid-December, The New York Times reported that the government hoped to sidestep the sticky questions surrounding a charge based on the publication of classified information by instead focusing on Assange’s alleged interactions with Manning, in hopes that they crossed the line into something approaching conspiracy to leak documents.
Conspiracy charges are often nebulous affairs, but again, as Josh Gerstein, a Politico reporter who specializes in legal and transparency issues, pointed out, it’s not so clear that kind of charge wouldn’t also be able to capture traditional national security reporting. While there have been suspicions that WikiLeaks’s interactions with their alleged source crossed some line that would make them less a passive recipient of his information and more of a collaborator in spiriting out the information, there’s been nothing extraordinary publicly offered. Manning reportedly claimed that Assange had created a special way for him to leak documents, so they wouldn’t be swamped by other submitters to WikiLeaks. If that’s the stiffest kind of cooperation prosecutors find, how legally different would that be from a reporter giving a source their home phone number, or coordinating two free signup e-mail accounts?
Either one of these kinds of prosecutions could have a serious impact on long standing precepts in journalism law. But the presence of WikiLeaks seems likely to shape the law in other ways. The Free Flow of Information Act, the formal name for the federal reporters’ shield law, was closer than ever to passage before the year of WikiLeaks began. The law would have given reporters some protection against being forced to divulge the identity of confidential sources, or information obtained from them, in federal court.