Can Assange and Wikileaks be prosecuted under the Espionage Act?

The Congressional Research Service has released a report, "Criminal Prohibitions on the Publication of Classified Defense Information," dated December 6, 2010. Herewith, the introduction and the conclusion:

Summary
The recent online publication of classified defense documents and diplomatic cables by the
organization WikiLeaks and subsequent reporting by the New York Times and other news media
have focused attention on whether such publication violates U.S. criminal law. The Attorney
General has reportedly stated that the Justice Department and Department of Defense are
investigating the circumstances to determine whether any prosecutions will be undertaken in
connection with the disclosure.
This report identifies some criminal statutes that may apply, but notes that these have been used
almost exclusively to prosecute individuals with access to classified information (and a
corresponding obligation to protect it) who make it available to foreign agents, or to foreign
agents who obtain classified information unlawfully while present in the United States. Leaks of
classified information to the press have only rarely been punished as crimes, and we are aware of
no case in which a publisher of information obtained through unauthorized disclosure by a
government employee has been prosecuted for publishing it. There may be First Amendment
implications that would make such a prosecution difficult, not to mention political ramifications
based on concerns about government censorship. To the extent that the investigation implicates
any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may
carry foreign policy implications related to the exercise of extraterritorial jurisdiction and whether
suspected persons may be extradited to the United States under applicable treaty provisions.
This report will discuss the statutory prohibitions that may be implicated, including the Espionage
Act; the extraterritorial application of such statutes; and the First Amendment implications related
to such prosecutions against domestic or foreign media organizations and associated individuals.
The report will also provide a summary of pending legislation relevant to the issue, including S.
4004.
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Conclusion
The Espionage Act on its face applies to the receipt and unauthorized dissemination of national
defense information, which has been interpreted broadly to cover closely held government
materials related to U.S. military operations, facilities, and personnel. It has been interpreted to
cover the activities of foreign nationals overseas, at least when they take an active part in seeking
out information. Although cases involving disclosures of classified information to the press have
been rare, it seems clear that courts have regarded such disclosures by government employees to
be conduct that enjoys no First Amendment protection, regardless of the motives of the divulger
or the value the release of such information might impart to public discourse.114 The Supreme
Court has stated, however, that the question remains open whether the publication of unlawfully
obtained information by the media can be punished consistent with the First Amendment. Thus,
although unlawful acquisition of information might be subject to criminal prosecution with few
First Amendment implications, the publication of that information remains protected. Whether the
publication of national security information can be punished likely turns on the value of the
information to the public weighed against the likelihood of identifiable harm to the national
security, arguably a more difficult case for prosecutors to make.
Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
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