If Assange is charged with espionage, what about news orgs?

Michael Calderone
The Cutline
Will WikiLeaks be charged with espionage

Will Julian Assange be indicted on espionage charges? His lawyers think so, with one of them telling Al-Jazeera's David Frost on Sunday that a federal grand jury in Alexandria, VA is now considering espionage counts against the WikiLeaks editor-in-chief.

U.S. Attorney General Eric Holder has already authorized an investigation of WikiLeaks, with the Washington Post reporting that Assange could be tried under the Espionage Act of 1917. Several U.S. political leaders—such as Sens. Joe Lieberman (I-CT) and Dianne Feinstein (D-CA)—have argued for just such a proceeding. And this Thursday, the House Judiciary Committee will hold a hearing on "the Espionage Act and the legal and constitutional issues raised by WikiLeaks." It looks like there's finally bipartisan consensus in Washington, with everyone from the Obama White House to Republican congressional leaders condemning the Australian hacker who serves as the public face of WikiLeaks.

But one member of Congress isn't bashing WikiLeaks and doesn't think invoking the Espionage Act makes sense. Texas GOP Rep. Ron Paul told The Cutline that he doesn't "want people messing with the Internet" and doesn't agree with government measures that would infringe on "people's rights to speak out."

It's not the first time Paul's been on his own politically. Paul said he's not surprised that Republicans, in the wake of the WikiLeaks cable dump, have come out against Assange. However, Paul said he's "very disappointed with the progressives who are for free speech." He suggested that formerly vocal progressives have now "been neutralized by this administration."

Paul said he doesn't understand how Assange "could commit espionage when he didn't steal anything." Indeed, the government believes army private Bradley Manning leaked the hundreds of thousands of documents to WikiLeaks. "If he can be charged, maybe the Washington Post and the New York Times and others can be charged," Paul added.

Paul isn't the only one who's raised the specter of an Espionage Act prosecution affording a slippery-slope argument that could justify espionage charges against news organizations reporting on the WikiLeaks documents. Several legal experts pointed out to ABC News on Monday that the U.S. Justice Department could have a tough time actually enforcing the World War I-era law, which—as written—could also implicate severl such news organizations that published cables, such as the New York Times and the U.K. Guardian--or even anyone who's read the cables or passed them along to friends over Twitter or Facebook.

American University law professor Stephen Vladeck told ABC News that "one of the flaws of the Espionage Act is that it draws no distinction between the leaker or the spy and the recipient of the information, no matter how far downstream the recipient is."

Guardian and WikiLeaks

So far, WikiLeaks has published 1,344 of the quarter-million State Dept. cables now in the group's possession; the Times has published some selective cables from the large cache. Countless journalists and non-journalists alike have written, blogged, tweeted, shared and discussed information in the classified cables--including, of course, Yahoo News writers.

Therefore, the Espionage Act could affect them, too. Benjamin Wittes, a legal analyst at the Brookings Institution, said that the act would cover any "news stories, all blogging on them, and all dinner party conversations about their contents." He added that "taken at its word, the Espionage Act makes felons of us all."

Still, Lieberman argues that Assange should be indicted for spying and has left open the possibility that news organizations could also be tried. Lieberman, through a spokeswoman, praised companies such as Amazon, PayPal and Visa for severing ties with WikiLeaks, saying they "have done the right thing and have acted as good corporate citizens." But Lieberman clearly doesn't feel the same way about some in the press.

"The news organizations that have reprinted the State Department cables have not been good citizens, but whether to prosecute news organizations is a difficult question that should be taken up and decided by Justice Department officials," Lieberman said in a statement. "For the future, members of Congress should engage in a discussion about whether to change the law, within the limits of the First Amendment, to more precisely address media disclosure of secret documents."

Feinstein, in a statement, harshly criticized WikiLeaks as she did in her Wall Street Journal op-ed last week. However, Feinstein made a distinction between Assange's group and the Times.

"WikiLeaks operates like a proliferator and an enabler of illegal activity," Feinstein said. "The New York Times considers its responsibility as journalists, including consulting with government and redacting information; their mission is to inform our democracy without recklessly and arbitrarily putting our national security at risk. Julian Assange is on-record as harboring intent to harm the U.S. government, with disregard for the consequences—both to the government and to innocent people. The New York Times does not have this bad intent."

Meanwhile New York GOP Rep. Peter King says he doesn't see a big difference between WikiLeaks and Times. He said Friday on Fox News that the Gray Lady should also be targeted. "Well, in my mind we should go after both," King said. "Let's go after Assange first, but I called four years ago for prosecution of The New York Times when they disclosed the SWIFT program, which was absolutely essential to America's anti-terrorist efforts."

Times reporter Eric Lichtblau—who co-wrote the SWIFT banking story and an earlier Pulitzer Prize-winning investigation of the NSA's warrantless wiretapping program—recalled how former Attorney General Alberto Gonzales suggested trying journalists for publishing classified information in 2006 before eventually backing off. "It certainly has a chilling effect when they throw out the Espionage Act," Lichtblau said.

If journalists are prosecuted for espionage, Lichtblau said, "there's an awful lot of public information that's going to be off limits."

The Washington Post's Dana Priest—who won a Pulitzer for her investigation of the CIA's "black" sites—has also felt the wrath of politicians over her investigative reporting. She said that "one of the reasons they criticize publicly is they don't want other people to get the idea that they should be doing this." Similarly, Priest said the result could be a "chilling effect on sources."

Priest says she doesn't consider Assange a journalist—in her judgment, he's more of an intermediary, who channels leaked documents for a source to news organizations. But she says she's concerned any time someone who's not a government official is charged with dissemination of classified documents because "it does get closer to what we do as journalists."

Priest said that some now invoking the Espionage Act "have gone overboard," especially given the actual revelations in the State Dept. cables. "As [Defense Secretary Robert] Gates said, these documents did not damage national security," Priest said. "What they told us are interesting, important things about how the world works."

(Photo from pro-Assange in Amsterdam, Netherlands on Dec. 11, 2010: Photo/ Evert Elzinga. Photo of British news stand on Nov. 29, 2010: AP Photo/Sang Tan)