Secrecy News

Grand Jury May Be Investigating WikiLeaks

A grand jury has been empaneled in the Eastern District of Virginia to investigate a possible violation of the Espionage Act involving the computer-based acquisition of protected government information concerning national defense or foreign relations.  In other words, the Grand Jury seems to be investigating WikiLeaks.

Glenn Greenwald of reported that a summons to appear before the Grand Jury on May 11 was served on an unidentified recipient in Cambridge, MA. He also posted a copy of the document.  See “FBI serves Grand Jury subpoena likely relating to WikiLeaks,” April 27.

The initial hurdle to any possible prosecution of WikiLeaks is to identify a specific crime that it may have committed.

The subpoena suggests that the path chosen by prosecutors (as predicted) is to allege a conspiracy to violate the Espionage Act under 18 USC 793(g).  But like much of the Espionage Act, the practical meaning of this statute is quite unclear.  So is its application here, beyond the bare implication that WikiLeaks instigated the unlawful transfer of information in a manner that is not protected by freedom of the press.

As things stand, everyone agrees that information gained by committing a crime is not protected by the First Amendment.  One cannot expect to break into a building to steal documents and publish them, and then invoke freedom of the press.

But what constitutes a crime?  Is it asking a question about a topic that one knows to be classified?  Buying someone lunch in the hope that he may divulge closely held information?  Indicating a willingness and a capacity to receive unauthorized disclosures confidentially?  These would hardly seem to qualify as criminal acts since they are ordinary conventions of national security reporting.

What makes this case both important and dangerous is that by pursuing this line of attack, the reported Grand Jury investigation of WikiLeaks may “clarify” such speculative matters, thereby generating new limitations on freedom of the press.

2 thoughts on “Grand Jury May Be Investigating WikiLeaks

  1. what will the wikileaks defense be? what are the legal protections for whistle blowers? if you know your boss is putting cyanide in baby formula, and you steal documents to prove it-dont you have protection? or, if u r a nurse and you know the hospital is putting ground glass into old people’s food, arent you protected if you steal medical documents to prove it? or if you are a marine and you know that your troupe is violating a military code prohibiting torture, are you not allowed to obtain the evidence to expose it, even if you have to steal the proof?
    obama promised he would protect whistle blowers, but he’s probably unable or unwilling in this case. or he is just another liar. but there must be laws to protect people who expose crimes even if they have to commit a ‘crime’ for the greater good of exposing it. you cant exactly expect your boss to GIVE you documents that prove his crime. and if you complain about the crime to your boss, he may try to get rid of the evidence against himself. like the cia destroyed some torture tapes in 2005, i think. they did that to protect their crimes. but we dont punish the people who commit the crime. we only punish the people who expose it.

  2. There is but one reason for governments to exist, to execute the protection of wealth and power, wealth and power are the reasons we go to war. They are in charge. To believe in a Democracy or a Republic that the common people have control of, or that legislators are public servants is pure fantasy, otherwise known as propaganda.

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