When Wikileaks published tens of thousands of classified U.S. military records concerning the war in Afghanistan last July, did it commit a criminal act under U.S. law? That was the question posed by a new report (pdf) from the Congressional Research Service. In the end, the CRS report tentatively concludes that “although unlawful acquisition of information might be subject to criminal prosecution, the publication of that information remains protected.”
What’s more interesting than the report’s ultimate conclusion is its probing treatment of basic questions such as the scope of First Amendment protections, and the application of U.S. law to foreign jurisdictions.
Could the Espionage Act possibly be used against foreigners acting outside the United States? Remarkably, the CRS report noted that it could. “The only court that appears to have addressed the question” ruled in 1985 that a citizen of East Germany, Dr. Alfred Zehe, could be prosecuted under the Espionage Act and he was in fact convicted.
On the other hand, could it be that the First Amendment provides protection to foreign publishers? There doesn’t seem to be a crisp yes or no answer to this question. But the CRS report, written by national security law specialist Jennifer K. Elsea, turned up a 1964 district court decision which suggested that foreign publishers do enjoy First Amendment rights, if only because American readers have a right to the information that they publish. “The essence of the First Amendment right to freedom of the press is not so much the right to print as it is the right to read,” that court ruled. Therefore, “the rights of readers are not to be curtailed because of the geographical origin of printed materials.”
But what about the publication of materials that have been illegally acquired? That seems to be an open question. The CRS report cited a 1989 case (Florida Star v. BJF at footnote 8) where the U.S. Supreme Court said that the question of “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well” is “not definitively resolved.”
The comparatively short (14 page) CRS report, interesting as it is, is necessarily incomplete.
So, for example, it does not grapple in any detail with the legacy of the so-called AIPAC case. Although that case was ultimately dismissed in 2009, the court there upheld the constitutionality of the Espionage Act even when applied to private citizens who do not hold security clearances but who received and transmitted classified defense information without authorization.
Thus, Judge T.S. Ellis III ruled (pdf) in August 2006: “Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.”
The CRS report also does not explicitly address 18 U.S.C. 793(g), which is the section of the Espionage Act that pertains to conspiracy. Under this provision, the criminal offense would not be publication of the restricted records, but collusion with a source to violate the terms of the Espionage Act. If Wikileaks has violated U.S. law — which remains uncertain — then its liability would likely be centered here. (The possible relevance of 793g to the Wikileaks case was noted by the pseudonymous Equ Privat in the blog Finem Respice on August 1, and in private correspondence.)
A copy of the CRS report was obtained by Secrecy News. See “Criminal Prohibitions on the Publication of Classified Defense Information,” Congressional Research Service, September 10, 2010.