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Pentagon Papers II? On WikiLeaks and the First Amendment

classifiedUpdate (5:00 EDT): This post was updated with additional information.

Is there a legal angle to the WikiLeaks story?

The bottom line: the website WikiLeaks, a site that publishes confidential information, got its hands on a huge trove of classified military field reports from the war in Afghanistan, which it then leaked to three publications: the New York Times, the Guardian and Der Spiegel.

The information disclosed paints a bleak picture of the war in Afghanistan.

Will there be any legal fallout from the story? Will criminal or civil charges be filed against anyone involved with the leak or publication of the leak?

We checked in with a couple First Amendment specialists on the topic, each of whom cast doubt on the government’s ability to prosecute or sue anyone involved with publishing the leaks.

The question, as posed by Fred Schauer, a law professor at the University of Virginia, goes like this: “What can be done — and to whom — when information that was originally obtained illegally is then published?”

The most obvious Supreme Court case to spring to mind is the New York Times v. U.S., the famous “Pentagon Papers” case from 1971. In the case, the Supreme Court ruled that the First Amendment barred the Nixon administration from keeping the New York Times and Washington Post from publishing classified information related to the Vietnam War.

Schauer said the opinion isn’t necessarily “conclusive,” partly because it was issued as a brief “per curiam” decision, and didn’t adopt a categorical rule on when the government might prevent publication of such information. Still, Schauer said that the case, along with two others, Landmark Communications v. Virginia and Bartnicki v. Vopper, “all go in the direction” of dictating that the person at WikiLeaks who got the information would likely elude criminal prosecution or liability unless that person was, said Schauer, “involved in getting the material in the first place.”

But someone who actually leaked the classified information, like Daniel Ellsberg did with the Pentagon Papers, might not evade the long arm of the law, Schauer said.

In other words, if WikiLeaks was simply a passive recipient of the material, it’s likely free from culpability. If it played a more active role, the calculus might change depending on just how involved it was. “There’s gray area on what’s proper and improper,” added Schauer. (WikiLeaks has said, however, that it didn’t pay for the documents.)

The organization has so far not been prosecuted or sued civilly for publishing this spring classified footage of a 2007 U.S. helicopter attack in Baghdad that killed two Reuters’ employees.

The fate was different for the alleged leaker, Army soldier, Pfc. Bradley Manning. The U.S. military recently said it would press criminal charges against him for allegedly transferring classified military information to an unauthorized source. The charges appeared to be connected to the materials released by WikiLeaks. Manning’s lawyers did not return requests for comment on Monday.

Jack Balkin, a First Amendment expert at Yale Law, said that the technological complexities involved in the WikiLeaks situation likely outweigh the legal questions. “The real story is about technology,” he told us. “These folks [WikiLeaks] aren’t located in the U.S. and use technology to disseminate their product. It’s very different from the Ellsberg case, when the major players were all in the U.S.” According to this story in the New Yorker from last month, WikiLeaks has worked out of Reykjavic, Iceland, but says it maintains its information on numerous servers around the world.

It would likely be difficult, said Balkin, for the Department of Justice to gain jurisdiction against a foreign entity like WikiLeaks. Even if it did — and then won a judgment against it — it might be hard, if not impossible, to enforce.

On the First Amendment question, Balkin said most First Amendment lawyers would say that preventing the publication of material “is justified only where absolutely necessary to prevent almost immediate and imminent disaster. It’s an extremely high standard.”

Balkin said that the standard for exacting criminal punishment or winning a civil injunction after publication, as might be the situation in the WikiLeaks case, is less settled. “But one assumes the standard is going to be very very high too.”

Concluded Balkin: “I can’t imagine that given the current situation, any criminal charges are going to be filed against any [media organization].”

A military leaker of the documents could face court martial, which means being kicked out of the military, losing pay and potentially jail time. Criminal charges against a civilian, such as a government employee or contractor who may have had access to the documents, could vary.

Ellsberg faced criminal charges under the Espionage Act as well as theft and conspiracy for his actions. The judge in that case dismissed the charges after finding that the Nixon White House  tried to discredit Mr. Ellsberg  by leaking damaging FBI material about him.

“I’ve been waiting for someone to do this for 40 years,” Ellsberg said on Monday.

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    • I’m writing a thesis on Public Trust in WikiLeaks, the Media and the Government and need to know what your opinions are. The online survey is multiple choice and will take approximately 10 minutes to complete. Please follow the link: Would be great if you would encourage others to do the survey also.

    • If the 1st Amendment protections somehow were found not to apply, then the Espionage legislation can be examined to see if any liability exists.:

      “Whoever, in time of war, with intent that the same shall be communicated to the enemy,…”

      And there’s the difficulty right there: domestic legislation applicable to US citizens with the potential only to apply to foreigners within the jurisdiction for conduct within the jurisdiction.

      Assange is not a US citizen; was not within the jurisdiction when the files were uploaded to Wikileaks; had no role in the removal of files from military computers; had no knowledge presumably of the files until after they landed on a server outside the US.

      If Assange went to the US he could apparently be held (ie bail refused) as a material witness for the prosecution of the people who copied and took the files. If he was in the US he could theoretically be charged with conspiracy per the Code, but that would likely go nowhere as the common law of conspiracy which I assume applies in the US, requires that one person conspires with another (or more) to perpetrate the conduct such that even if the conduct never happens there is still an offence committed. There would have to be proof that Mr Assange plotted with the leaker(s), communicated with them for a conspiracy charge to stick and there is not a scintilla of evidence for that so far.

      The massive single difficulty US authorities have is that Mr Assange is not within the jurisdiction and is not likely to go there anytime soon. It is at this point that commentators in the US start conflating US domestic law with International law, or extra-territorial judicial powers. Australia for example can prosecute citizens who have sex with minors in other jurisdictions ie Asia. This is an example of extra territorial judicial powers (and is it constitutional, well ours anyway) but it can never apply to non citizens.

      Given that Mr Assange did not do anything within the jurisdiction of the US, I imagine that any indictment could try to link him as an accessory with the acts of the leaker but this is highly problematic. An accessory in many legal systems must have some knowledge that a crime is being, or will be committed. This raises a difficulty that Wikileaks goes to great lengths NOT to know who is the leaker by arranging for anybody to anonymously upload through Tor pipelines for example to their servers. Even if the leaker is identified afterwards, — accessory after the fact–this runs up against the common law position expressed by Blackstone:

      “Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed”.

      To which I would add, logically “And of the felon”.

      Whatever the indictment, an extradition request by the US-presuming that Mr Assange remained in one country long enough-would run into more brick walls. Given the fact that the Australian government apparently refused a US request to investigate Assange, an extradition request Downunder is most likely to be refused as well. Other nations and NATO members in particular are unlikely to cooperate and many of their citizens would likely regard it all as a political witch hunt given the memory of the legal black hole in Guantanamo Bay.

      The calls from the US for Assange’s “blood” are in the meantime most unedifying and counterproductive in that it will tend to confirm the view held among many in the world that the US tries to solve too many of its problems with violence, and on that topic one thing now seems to be overlooked: that Wikileaks exposed the extreme violence meted out to hundreds more civilians in Afghanistan hitherto, covered up.

      Peter Kemp.
      Solicitor of the Supreme Court of NSW Australia.

    • How can we adequately reward the Lame Stream Media for their more-than-willing complicity in almost (at this point in time) bringing down our (and, inexplicably, their own) country?

      Their latest attack on the security of their country and the safety of her citizens, namely, the New York Times’ contemptible publishing of the WikiLeaks documents is a glaring example of their reckless willingness to aid our enemies in their terrorist campaign against us with no regard for the lives of our troops abroad and the preservation of our nation‘s interests around the world.
      But is it merely recklessness and irresponsibility… or could there be an ulterior, more sinister, plan?

      Their “slobbering love affair” with our president could maybe be excused owing to a justifiably enthusiastic zeal / fanaticism in electing who they thought was an extremely well-qualified and honorable (and, of course, electable) candidate in Barack Obama.
      But how can we excuse their total refusal to do even the most rudimentary performance of due diligence in investigating a candidate with, at best, a murky and checkered background, for the most powerful office in the world?
      The ongoing boycott of their product: magazines, newspapers, TV news and talk shows, etc., obviously continues as we speak, as evidenced by layoffs by the print media, dismal ratings of their TV broadcasts, etc.

      But is this sufficient punishment? After all, they stood by, complicit in their lethargic apathy, as the Obama administration forged ahead inexorably in their campaign to weaken, cripple, and yes, to destroy the most noble country in the history of the world.

      We kill terrorists who try to blow up buildings or airplanes packed with innocent men, women and children. In a less complicated time, we have hanged spies who traded in espionage that would damage the country’s military capacity and defense capabilities.

      Killing and hanging are, admittedly, a bit extreme, but the destruction of the country that is their ultimate goal rises to the levels sought by terrorists and spies, if they are successful. Treason is the only word that adequately describes the behavior demonstrated by the sycophantic, state-controlled Propaganda Wing of the Obama Administration!!

      Criminal prosecution is compellingly indicated here, with prison sentences and fiercely punitive fines for those in charge.

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  • The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

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