On April 25 Gordon Crovitz wrote a column for The Wall Street Journal urging the government to prosecute WikiLeaks under the Espionage Act. On Friday, May 6, The Wall Street Journal published my letter in which I pointed out what I believe to be the errors in Mr. Crovitz’ analysis. Coincidentally, on May 6, Gabriel Schoenfeld published an op-ed page article in The Wall Street Journal also urging the government to prosecute WikiLeaks for violating the Espionage Act.Both Crovitz and Schoenfeld, I submit, are wrong.
According to reports in the press, the government has given up trying to prosecute WikiLeaks under the Espionage Act because of the difficulty it sees in such prosecution.Instead, the government is trying to end-run the Espionage Act by attempting to show that Assange conspired with Bradley Manning to violate the Espionage Act and conspired with Bradley Manning to violate relevant computer laws.
These efforts to end-run the Espionage Act also have their own First Amendment problems and should not succeed.The government tried to use this general tactic against The New York Times to prosecute the Times following publication of the Pentagon Papers.These efforts failed.
Despite the view of Messrs Crovitz and Schoenfeld, the Espionage Act has many imperfections which makes it inapplicable to the prosecution of WikiLeaks.As I pointed out to The New York Times when I initially advised it re: the publication of the Pentagon Papers in 1971, the Act is constitutionally vague, does not cover publication (only communication) and does not otherwise comply with the First Amendment.
It is not an oddity that the word “publish” is not in the relevant section of the Espionage Act.Congress, when it passed the law intentionally excluded it.
Here is my letter in The Wall Street Journal:
The Wall Street Journal Letters Friday, May 6, 2011
Espionage Act Isn't The Wikileaks Answer
In "WikiLeaks and the Espionage Act" (Information Age, April 25), Gordon Crovitz says, "the U.S. should indict Mr. Assange under the Espionage Act." Mr. Crovitz misses the main point. Under the First Amendment, WikiLeaks founder Julian Assange cannot be successfully prosecuted for a violation of the Espionage Act unless the publication of WikiLeaks constitutes a clear and present danger to the national security of the U.S.
This would be impossible for the government to prove. No one in the government has pointed to any particular leak that Mr. Assange or the New York Times has published as even "damaging" national security. Indeed, Defense Secretary Robert Gates said while the leak of State Department cables, for example, was "embarrassing," he thought that the consequence of their release would be "fairly modest." No doubt for this reason and others, the government has said there are "problems" in prosecuting Mr. Assange under the Espionage Act and has now apparently abandoned its efforts to prosecute Assange under that act. James C. Goodale New York Mr. Goodale was counsel to the New York Times in the Pentagon Papers case.