As of Tuesday, WikiLeaks founder Julian Assange is in British custody on charges of having committed sex crimes in Sweden. Despite his arrest, WikiLeaks volunteers continue to release classified U.S. documents, and the U.S. Justice Department is still investigating whether publishing the secrets constitutes a crime. On that point, U.S. law presents significant hurdles—but they are not insurmountable.
Putting aside the extradition issues, the pertinent statute is the Espionage Act of 1917. That law makes it a crime to disclose information “relating to the national defense” to “any person not entitled to receive it.” Mr. Assange has clearly done this. But the law further requires that the perpetrator acted with “reason to believe” that the secret information “could be used to the injury of the United States.” Courts have interpreted this to mean that the disclosure must have been made with a “bad faith” purpose. Some contend that proving WikiLeaks’ bad faith might be tricky.
Mr. Assange would undoubtedly claim in court, as he already has publicly, that cries of harm to U.S. national security are “fanciful.” The attorney Baruch Weiss has suggested in the Washington Post that Mr. Assange could call as his first witness none other than Secretary of Defense Robert Gates. Mr. Gates has taken issue with those alarmed by the latest data dump, calling claims of damage “fairly significantly overwrought” because the revelations have only “modest” consequences for U.S. diplomacy.
Harder than proving Mr. Assange’s bad faith is overcoming the First Amendment guarantee of freedom of the press. Like a newspaper, WikiLeaks gathers information and publishes it. And newspapers—as we are repeatedly told by journalists and their defenders—have the constitutional right to publish whatever they will, including secrets, no matter how sensitive.
But this is a self-serving myth. It is true that no news outlet has ever faced criminal charges for publishing secrets. The closest we came was in World War II, after the Chicago Tribune ran a story after the Battle of Midway strongly suggesting that the United States had successfully broken Japanese naval codes. A grand jury was empaneled to hear evidence against the newspaper, but when it became clear that the Japanese had not altered their codes, the legal proceedings were abandoned lest more attention be drawn to a story that Tokyo was thought to have missed.
A second near miss came in 1971, when the Nixon administration dragged the New York Times into court to stop it from publishing the Pentagon Papers, the multi-volume classified study recounting the history of U.S. involvement in Vietnam. In a momentous 6-3 decision, the Supreme Court declined to halt the presses. The administration, it held, had failed to demonstrate the kind of imminent, grave harm that would justify a prior restraint on the press, a step never before taken in two centuries of American history.
But five of the nine justices expressed the view (with varying degrees of certitude) that if the Times went ahead and published the secrets, it might be held criminally culpable after the fact. “I would have no difficulty in sustaining convictions” under the espionage statutes, wrote Justice Byron White, “on facts that would not justify . . . the imposition of a prior restraint.” The landmark ruling suggests that the First Amendment is not an absolute bar to the prosecution of a traditional news organization, let alone a foreign-based, computer-age hybrid like WikiLeaks.
Of course, convicting WikiLeaks could blow back on the American press, which publishes secrets all the time. But newspapers, whatever one makes of their occasional reckless treatment of classified information, very seldom in our history can be said to have operated with criminal “bad faith.” That is a major reason that prosecutors have left them unmolested.
WikiLeaks is something else. It is not informing our democracy but waging war on its ability to conduct diplomacy and defend itself. If Mr. Assange were tried before a jury and sent to jail, our security would be enhanced and our cherished freedoms not abridged one whit.
Mr. Schoenfeld, a senior fellow at the Hudson Institute in Washington, D.C. and a resident scholar at the Witherspoon Institute in Princeton, N.J., is author of “Necessary Secrets: National Security, the Media, and the Rule of Law” (Norton, 2010).