Can the Government Prosecute WikiLeaks?
by Charles Davis October 26, 2010 09:07 AM (PT)
The whistle-blowing website WikiLeaks is in the news again this week after it posted thousands of leaked classified documents that show the U.S. military committed numerous war crimes in Iraq, covered up the deaths of thousands of civilians and looked the other way as its allies brutally tortured detainees. The leak has prompted calls from much of establishment Washington for prosecutions -- not of war criminals, of course, but of WikiLeaks and its Australian founder, Julian Assange.
Marc Thiessen, a former speechwriter for President George W. Bush and a particularly dim-witted and dull columnist for The Washington Post, has repeatedly called for Assange to be indicted -- and possibly taken out with a drone strike -- even if that means contravening international law (yay American exceptionalism!). Prosecuting WikiLeaks was also the first thing on ABC News anchor Diane Sawyer's mind when her station aired a segment on the recent revelations. The Army and FBI, meanwhile, are currently investigating whether charges can be filed against Assange.
But while politicians and major media outlets publicly muse about prosecuting WikiLeaks, a leaked report from the Congressional Research Service (CRS), a non-partisan government organization that provides analysis of key issues at the request of members of Congress, indicates such a prosecution would be both unprecedented and legally dubious.
"Leaks of classified information to the press have only rarely been punished as crimes," the report states, "and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it." Furthermore, "There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship."
As a foreign national, Assange cannot be held liable for treason. And while government lawyers are reportedly weighing whether they can charge him with espionage, the CRS report notes that prosecuting "persons who do not hold a position of trust with the government, outside of the classic espionage scenario (in which an agent of a foreign government delivers damaging information to such hostile government), has been controversial." And the "only known case of that type," involving two lobbyists from the American Israeli Public Affairs Committee (AIPAC) charged in 2005 with leaking U.S. classified information to Israel, completely fell apart.
It's also worth noting that when the Nixon administration sought to stop The New York Times from publishing the Pentagon Papers, which detailed the true story of the Vietnam war, the Supreme Court rejected the call for an injunction, declaring the publication was well within the paper's First Amendment rights.
Naturally, facts and level-headed analysis won't stop the calls from respectable, serious pundit-types for prosecuting WikiLeaks, their desire to punish those who reveal the uncomfortable, bloody truth about the U.S. government's ongoing military occupations of two Middle Eastern countries not satiated by the jailing of Bradley Manning, the heroic young solider who allegedly leaked the documents in the first place (note: that's how the Obama administration rewards those who expose criminal wrongdoing -- with prison). But the increasingly desperate-sounding appeals for Assange's prosecution only underscore the effectiveness of what he and his organization is doing: exposing government lies with the government's own documents.
If the Obama administration is serious about human rights and accountability, it should investigate the war crimes exposed in the leaked documents, not the organization that publicized them. And rather than prosecute the man who leaked them, the president ought to grant him a pardon.
http://criminaljustice.change.org/blog/view/can_the_government_prosecute_wikileaks --
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