Advancing a Free Society

The Washington Post on Wikileaks

Monday, December 13, 2010

Don’t Charge Wikileaks,” say my beloved former colleagues at the Washington Post editorial page this morning. The Post argues that,

Such prosecutions are a bad idea. The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets. Doing so would criminalize the exchange of information and put at risk responsible media organizations that vet and verify material and take seriously the protection of sources and methods when lives or national security are endangered. The Espionage Act is easily abused, as shown by a criminal case that dragged on for years, before being closed last year, of two lobbyists for the American Israel Public Affairs Committee who did nothing more than pass along to colleagues and a reporter information they gleaned from conversations with U.S. officials. The act should be scrapped or tightened, not given new and dangerous life.

A few thoughts:

The blanket proposition that the government has no business prosecuting someone not obligated to protect secrets for disclosing protected material overstates an important idea. The important idea is that the United States has never had an Official Secrets Act, a generalized prohibition against private sector publication of state secrets. To create one raises enormous First Amendment concerns. The issue, however, cannot quite as black-and-white as the editorial suggests. Suppose, for example, that Wikileaks got its hands on the U.S. nuclear launch codes and published them with the the specific intent of harming U.S. national security. Or, to take a real example, suppose someone went on a binge of outing U.S. covert operatives in order to harm U.S. intelligence capabilities–an incident that actually gave rise to its own statute. I don’t think the Post would take the position that the criminal law is an unthinkable instrument in such cases. I certainly wouldn’t.

Continue reading Benjamin Wittes at Lawfare