In an NPR interview early this morning, one of the attorneys who defended the New York Times in the Pentagon Papers case nearly four decades ago opined that Wikileaks may be in violation of the 1917 Espionage Act. This commentator noted that the broad language of the act, while having long ago been declared Constitutional by the Supreme Court, has been narrowed by the requirement of scienter. That is, the leaker of national secrets must intend to harm the nation. He went on to say that the founder of Wilkileaks has said things in the past that might be interpreted as establishing that intent. Problem is, he went on, that the Justice Department may have difficulty finding this fellow.
At ant rate, here is what Wikileaks says about itself:
1.1 About WikiLeaks
WikiLeaks is a not-for-profit media organisation. Our goal is to bring important news and information to the public. We provide an innovative, secure and anonymous way for sources to leak information to our journalists (our electronic drop box). One of our most important activities is to publish original source material alongside our news stories so readers and historians alike can see evidence of the truth. We are a young organisation that has grown very quickly, relying on a network of dedicated volunteers around the globe. Since 2007, when the organisation was officially launched, WikiLeaks has worked to report on and publish important information. We also develop and adapt technologies to support these activities.
WikiLeaks has sustained and triumphed against legal and political attacks designed to silence our publishing organisation, our journalists and our anonymous sources. The broader principles on which our work is based are the defence of freedom of speech and media publishing, the improvement of our common historical record and the support of the rights of all people to create new history. We derive these principles from the Universal Declaration of Human Rights. In particular, Article 19 inspires the work of our journalists and other volunteers. It states that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. We agree, and we seek to uphold this and the other Articles of the Declaration.
1.2 How WikiLeaks works
WikiLeaks has combined high-end security technologies with journalism and ethical principles. Like other media outlets conducting investigative journalism, we accept (but do not solicit) anonymous sources of information. Unlike other outlets, we provide a high security anonymous drop box fortified by cutting-edge cryptographic information technologies. This provides maximum protection to our sources. We are fearless in our efforts to get the unvarnished truth out to the public. When information comes in, our journalists analyse the material, verify it and write a news piece about it describing its significance to society. We then publish both the news story and the original material in order to enable readers to analyse the story in the context of the original source material themselves. Our news stories are in the comfortable presentation style of Wikipedia, although the two organisations are not otherwise related. Unlike Wikipedia, random readers can not edit our source documents.
To me this sounds a lot like the philosophy of Leaderless Resistance espoused by ALF, ELF, Tim McVeigh, Al Qaeda, and other terrorists. Of course, that alone does not make Wikileaks a terrorist organization.
But terrorist or not, is Wikileaks in violation of the Espionage Act? You be the judge (for now, anyway):
(a) whoever, for the purpose of obtaining information respecting the national defence with intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information, concerning any vessel, aircraft, work of defence, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defence, owned or constructed, or in progress of construction by the United States or under the control or the United States, or of any of its officers or agents, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired. or stored, under any contract or agreement with the United States, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place within the meaning of section six of this title; or
(b) whoever for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts, or induces or aids another to copy, take, make, or obtain, any sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, document, writing or note of anything connected with the national defence; or
(c) whoever, for the purpose aforesaid, receives or obtains or agrees or attempts or induces or aids another to receive or obtain from any other person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note, of anything connected with the national defence, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts or induces or aids another to receive or obtain it, that it has been or will be obtained, taken, made or disposed of by any person contrary to the provisions of this title; or
(d) whoever, lawfully or unlawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note relating to the national defence, wilfully communicates or transmits or attempts to communicate or transmit the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or
(e) whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, or information, relating to the national defence, through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be list, stolen, abstracted, or destroyed, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or both.