1/31/2011

By Tom McSorley

Frustration over WikiLeaks’ embarrassing November 28 release of thousands of State Department communiqués will likely lead to aggressive efforts to prosecute individuals for the leak of classified information. Unfortunately for administration officials, the path to criminal liability for any involved party is unclear.

The Justice Department has two main options: target the individuals responsible for leaking the classified information or target WikiLeaks for publishing it.

The former option has the benefit of precedent: leaking classified information is a serious prosecutable offense. Under U.S. Espionage laws, individuals that directly participate in disseminating classified information to individuals without clearance face criminal liability. Of course, finding and prosecuting those individuals is increasingly difficult, as the leak demonstrates that electronic communication is not secure. Nearly 3 million people possess the clearance to access the leaked documents, so while prosecuting the initial offender may seem to be the most obvious action to pursue, there are serious practical limitations on any investigation of this magnitude.

This has lead to widespread speculation about direct action against WikiLeaks, the organization avowedly responsible for the leak. However, there are at least two significant barriers to prosecuting the leaders of WikiLeaks.

First, WikiLeaks uses neutral server space and redirects its data through many countries to avoid detection. Its founder, Julian Assange, has gone into hiding, and it is unclear U.S. criminal law can reach into the countries WikiLeaks uses for shelter.

Second, prosecuting WikiLeaks has serious Freedom of Press implications. Given that WikiLeaks did not actually steal the information from the government, liability would rest on publishing the information alone. This would seem to implicate other news organizations as well, though Attorney General Holder has called the behavior of other news organizations that published the documents “responsible” and contrasted their behavior with that of WikiLeaks. It is unclear on what basis Holder is making such a distinction. Prosecutors may be able to formally assert such a distinction by alleging not that the publishing of the material was criminal, but that WikiLeaks criminally induced the leak, thereby violating Espionage laws.

Rep. Peter King (R-NY) wants to avoid this debate altogether and label WikiLeaks a “terrorist organization,” but as angry as officials may be about the document release, the solution probably is not to continue brandishing the label “terrorist” on every individual and organization that does something the government finds objectionable. So, at present, talk of criminal sanctions for those responsible for the document release might be more rhetorical than substantive.