December 19, 2010

Has WikiLeaks Violated the Espionage Act?

The short answer: No.

The long answer: Some believe that WikiLeaks has violated § 793(e) of the Espionage Act, which makes it illegal to “willfully communicate” any document “relating to the national defense” which one believes could be used to “the injury of the United States or to the advantage of a foreign nation.”  But Trevor Timm points out:

As made clear in the Pentagon Papers case, the word “communicates” was never meant “to encompass publication” or to affect the press. Congress included the word “publish” in three other sections of the Act but intentionally left it out of 793. As the legislative history of this provision states, “Nothing in this Act shall…in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States.”

Justice Douglas referenced the legislative history in his concurring opinion, when he wrote of Section 793, “it is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act.”

Others believe that WikiLeaks has violated § 794(a), which makes it illegal to “communicate,” “either directly or indirectly,” any document “with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation.”  But, just as with § 793(e), this section contains the word “communicate,” not “publish.”  Moreover, it seems clear that WikiLeaks’ purpose in releasing these recent documents has been, not to injure the United States, but rather to make its government more just.  As Julian Assange told Amy Goodman earlier in the year:

We are transparency activists who understand that transparent government tends to produce just government. And that is our sort of modus operandi behind our whole organization, is to get out suppressed information into the public, where the press and the public and our nation’s politics can work on it to produce better outcomes.

It also seems clear that WikiLeaks had no reason to believe that releasing these documents would injure the United States.  Regarding this latter point, former federal prosecutor Baruch Weiss notes:

Well before publishing the cables, [Assange] wrote a letter to the U.S. government, delivered to our ambassador in London, inviting suggestions for redactions. The State Department refused. Assange then wrote another letter to State, reiterating that “WikiLeaks has absolutely no desire to put individual persons at significant risk of harm, nor do we wish to harm the national security of the United States.”

In that second letter, Assange stated that the department’s refusal to discuss redactions “leads me to conclude that the supposed risks are entirely fanciful.” He then indicated that WikiLeaks was undertaking redactions on its own.

Still others believe that WikiLeaks has violated § 794(b) and/or § 798, both of which specifically prohibit publishing certain material.  But a close reading of these sections reveals that they only prohibit publishing very specific information.  Section 794(b) prohibits publishing information regarding “the movement, numbers, description, condition, or disposition of any of the Armed Forces…or with respect to the plans or conduct…of any naval or military operations.”  In other words, as Timm writes, § 794b emphasizes future operations, whereas the WikiLeaks documents deal with the past.  And § 798 prohibits publishing information relating to cryptography and communication intelligence, none of which has been revealed by WikiLeaks.


Bob said...

Douglas was writing a concurring opinion, not the majority opinion. So, what you quoted isn't even binding on the lower courts, much less the U.S. Supreme Court (SCOTUS). Douglas was also perhaps the most civil-libertarian justice to ever sit on the SCOTUS. Roberts, Alito, Thomas, Scalia would almost certainly not agree with that interpretation. Kennedy probably wouldn't either.

Also, Douglas's idea was that leaving "publish" out of a laundry list meant that the laundry list should be read as "if you are publishing, then you are not in violation of the law, despite doing something else on this list". That is a silly idea.

It is a distortion of the idea that if a statute requires that you do "A, B, and C" to be guilty, then it has to be possible to do C but not B and possible to do B but not C. Otherwise they would have just made the statute include element A and whatever element (B or C) was the superset of the other. That is, if there is logically no way to do B without also doing C, they would have just said "you are guilty if you do A and C".

That reasoning works for a list where you have to do all of them to be guilty, it doesn't work for a list where you have to do any of them to be guilty. If it is "A or B" in one statute and "A" in another, that just means that the first statute has an extra way you can be guilty, not that you are innocent of violating the second statute if you do both "A" and "B" (both communicating AND publishing).

Suppose I have one statute that says someone who "murders or kills another person while wearing a hat" is guilty of violating statute X and another that says someone who "kills another person while wearing socks is guilty of violating statute Y". If you murder someone while wearing socks, you are violating statute Y. Not because you "murdered" them (not a requirement of the statute), but because you "killed another person".

The laundry list that does not include "publish" does include "communicate".

Don Emmerich said...

I never said that Douglas' opinion is binding on lower courts. I simply appealed to his argument because it seems like a good one to me.

Don Emmerich said...

I find the bulk of your argument here incomprehensible.

Bob said...

Sorry, it is rather obscure legal reasoning on statutory construction. You start from the basic premise that the legislature knows what it is doing (yeah, I know, crazy premise). You pretend that they couldn't just slip up and put in some words or limitations that they didn't mean to put in. You assume that if they made a list, then every item on that list is there for a reason. In the case of crimes, there is usually a list of "elements" that you can check off. If the person is found to have done something that matches every element, then he is guilty of that crime.

For example. Burglary (at common law) required:
1) The breaking
2) and entering
3) of the dwelling
4) of another
5) at night
6) with intent to commit a felony or any theft

You couldn't convict someone of burglary if they did everything on the list but (for example) enter.

When you have a list or elements that includes overlapping concepts the court has to assume that each concept has its own separate meaning and that you can do each of them without doing the others. Otherwise why would the legislature list both concepts?

If the elements of a crime were:
1) Brutally and
2) Viciously
3) Striking another person

Then the court would have to come up with different interpretations for "brutally" and "viciously" to justify (after the fact) why the legislature put both terms in as separate requirements.

Justice Douglas was sort of following that logic in the quote you cited. However, the reasoning behind that logic only works for elements that are "ands" within one statute not "ors" in multiple statutes.

Contrary to Justice Douglas, there is no reason to assume that if the legislature included "or published" in one list and did not include it in a second list, that they meant that it was impossible to do something on the second list if what you were doing could also be described as "publishing".

Bob said...

Although, the reason I actually came here today was it occurred to me that Assange's defenders talk about him exposing war crimes. But I can't think of a single actual war crime by the U.S. that Assange has exposed. I mean, the most damaging thing I have heard of from wikileaks is that a U.S. helicopter crew shot some journalists who were standing in the middle of a group of armed insurgents. Which had already been investigated and which was not a war crime. When a guy standing next to a guy with a rocket launcher points a video camera at your helicopter, from a distance, it isn't surprising if you mistake the camera for a weapon and shoot in mistaken self-defense.

So exactly what U.S. war crimes have the wikileakers exposed?

Don Emmerich said...

Justice Douglas, the Pentagon Papers case:

The other evidence that § 793 does not apply to the press is a rejected version of § 793. That version read:

During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the [p722] enemy.

55 Cong.Rec. 1763. During the debates in the Senate, the First Amendment was specifically cited, and that provision was defeated. 55 Cong.Rec. 2167.

Judge Gurfein's holding in the Times case that this Act does not apply to this case was therefore preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1(b) that:

Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.

64 Stat. 987. Thus, Congress has been faithful to the command of the First Amendment in this area.

Don Emmerich said...

If "communicate" includes the idea of "publish," then other parts of the Espionage Act make no sense -- e.g., 794b, which forbids publishing AND communicating. If "communicate" includes the idea of "publish," then why state it like this? This makes no more sense than speaking of "triangles and isosceles triangles."

You're assuming that the drafters of the Espionage Act didn't meant what they said. You're assuming that they were sloppy with their words. The onus here, I think, is on you to demonstrate this.

Don Emmerich said...

I don't know if WikiLeaks has revealed any specific war crimes. They've certainly revealed government duplicity and wrongdoing, and for that I'm thankful.

Bob said...

Not at all. 794(b) does not forbid "publishing and communicating" it forbids "publish[ing] _or_ communicat[ing]".

Lots of laws include laundry lists of "this or that" to make it harder for someone to argue semantics. Just like 794(a) says "communicates or delivers [to a foreign faction]". Your analogy would be closer if you talked about "squares, rectangles, rhombuses, parallelograms, or four sided figures". Squares are covered in all of those, but you might throw "squares" in so that you could prosecute without having to explain to a jury what a rhombus is.

The lack of "publish" in "communicates...[to the enemy]", means that (for a conviction) the government has to prove beyond a reasonable doubt that the data reached a foreign faction. That is, for parts of the statute that don't include "or publishing", publication alone isn't enough, you also have to prove that the enemy received it (communicating to a foreign faction).

Good citation of legislative history there BTW. The problem is that you didn't read it carefully. What was rejected was what is called "prior restraint". That is, preventing someone from publishing altogether. The Courts almost never allow prior restraint. Even if you can prove that a newspaper is about to print a pack of slanderous lies against you, the court won't stop them. The solution the Courts supply is after the fact prosecutions, lawsuits, etc.

In the Pentagon Papers case, the government was seeking to prevent publication, not to punish after the fact.

The court feels that it is important to avoid putting the government in a position to stop publication and that important breaches of criminal or civil laws can be dealt with afterward. Also that newspapers will restrain themselves from disseminating information which can get them sued or arrested.

Bob said...

Oh, as for: "Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect."

That also goes back to the prior restraint idea. Censorship means preventing publication. Arresting someone for publishing something that is a crime to publish (e.g., obscenity, nuclear bomb secrets, etc.) does not violate free speech.

The rest of that is a CYA. No law is allowed to infringe on rights guaranteed by the constitution and saying so is just a way of telling the court that the congress isn't trying to infringe on those rights, so if the regulations infringe on them, throw out the regulations and interpret the law in a way that doesn't infringe on those rights. Legally, it's pretty much just fluff. If the law did infringe, saying that it isn't intended to infringe won't save it from being struck down. If the law doesn't infringe then it would be valid with or without that statement.

Don Emmerich said...

1) I imagine that the drafters of the act had different meanings in mind for “communicate” and ‘deliver.” I just don’t see any reason to believe that they were so incredibly, unnecessarily redundant.

2) “The lack of ‘publish’ in ‘communicates...[to the enemy]’, means that (for a conviction) the government has to prove beyond a reasonable doubt that the data reached a foreign faction.” And what’s your basis for this claim?

3) I understand that the Pentagon Papers case involved prior restraint. My whole point is that 793e does mean publishing when it prohibits communicating certain material. As proof, Douglas noted that Congress had originally intended to prohibit publishing certain material. The language they used in an earlier version of the bill was “publishing or communicating.” But, citing the First Amendment, they decided to only prohibit communicating this material.

Don Emmerich said...

"Arresting someone for publishing something that is a crime to publish (e.g., obscenity, nuclear bomb secrets, etc.) does not violate free speech."

But you still haven't explained why it's a crime for WikiLeaks to publish the cables. Specifically, what statute have they violated?