(from USA Today, December 15, 2010)
By David Rivkin and Bruce Brown
With WikiLeaks founder Julian Assange under arrest in England, calls for his prosecution intensify. The U.S. government has every right to pursue him under the 1917 Espionage Act. What has been missing in the debate is how to do this without compromising core First Amendment values.
Fortunately, because Assange’s conduct differs so fundamentally from that of any journalist, the Justice Department should be able to prosecute him using clear limiting principles, capable of restraining any future misuse of these laws against the news media. Indeed, without such limiting principles being prominently featured in an indictment against him, the government’s case would be both ill-advised and ultimately fail.
The threat posed by Assange is different from the occasional disclosures by officials to reporters covering national security issues. No government can stand by while its sensitive military and diplomatic materials are dumped indiscriminately onto the Internet in raw, unexpurgated format. But if the administration or Congress overreaches in seeking a remedy, it will damage democracy, and will never pass muster in the courts.
Assange no journalist
The good news is that Assange is no journalist devoted to informing the public about the issues of the day. Rather, he is a person determined to destabilize: Leave me to my devices, he says, or computers around the globe will automatically release the “Doomsday Files,” containing even more destructive information. That’s not journalism; that’s blackmail, and no news organization would act this way. Assange’s failure to analyze the documents he has released or provide any analytical narrative also fundamentally distinguishes him from any journalist.
Assange might think of himself as a modern-day Daniel Ellsberg, the RAND analyst who provided the secret military documents to The New York Times and The Washington Post that led to the Pentagon Papers showdown in 1971 at the U.S. Supreme Court. But the figure from the 1970s he most resembles is not Ellsberg but Philip Agee, a CIA case officer who in 1975 bared the identities of hundreds of alleged covert operatives in his book Inside the Company: CIA Diary.
Agee was never prosecuted, but in response to his calculated campaign to name names, Congress later criminalized this conduct in the Intelligence Identities Protection Act. Mindful of the risks any leaks statute posed to the press, lawmakers ensured that when it came to private citizens, the law would reach only those whose “pattern of activities” made it clear that it was “their business to ferret out and publish the identities of agents.” It would not criminalize disclosures that were an “integral part of another enterprise such as news media reporting.”
No journalist has been prosecuted under the law. A similar, but unwritten, understanding has long defined the Espionage Act. While the statute by its terms does not exempt the news media, the government has never put a reporter on trial for publishing state secrets.
Yet, federal prosecutors have given journalists reason to feel less secure. In 2005, they sued two lobbyists for the American Israel Public Affairs Committee who had received classified information about the Iranian nuclear program and then shared it with reporters. The case collapsed, but not before the government won a ruling that the espionage statute could be applied to anyone, even private citizens bound by no secrecy oath — in theory, the news media.
As the government pursues WikiLeaks, it must lay down defining markers — such as those used in the Intelligence Identities Protection Act — to shield news reporting and affirm that it will not use the espionage laws to chill the exercise of press freedoms. While Assange’s conduct is aimed at harming U.S. security, the subsequent media coverage of the leaked cables has been discerning and discriminating. It deserves full protection.
David Rivkin and Bruce Brown are partners in the Washington office of Baker & Hostetler LLP. Rivkin served in the Justice Department and the White House Counsel’s office under Presidents Ronald Reagan and George H.W. Bush.