Can the U.S. Actually Prosecute WikiLeaks?

As a cyberwar erupts over WikiLeaks and its founder, Julian Assange, the question remains as to what the United States can actually do to prosecute the diplomatic cable leakers for endangering national security.

Unfortunately for the hawks, the 1917 Espionage Act is the most recent and most relevant law on the books applying to the WikiLeaks case, reports Steven Aftergood on his FAS Project on Government Secrecy website. The Espionage Act is not just outdated, its applicable statutes (as well as those from other similar laws) may leave the media organization in the clear, according to the latest report from the Congressional Research Service.

"There appears to be no statute that generally proscribes the acquisition or publication of diplomatic cables, although government employees who disclose such information without proper authority may be subject to prosecution," the report's author, Attorney Jennifer K. Elsea, states.

In other words, the alleged illegal downloading of the material by PFC Bradley Manning is covered under the Espionage Act, but not WikiLeaks' (or The New York Times') release of the material.

CBS News correspondent Elizabeth Palmer points out that in the U.K., unlike the U.S., newspaper publishers could be prosecuted for printing what's considered official secrets, but so far there's been no move to go after the media or Assange.

The updated CRS report sorts through all applicable statutes, provides an account of recent events, presents a new discussion of extradition of foreign nationals who are implicated by U.S. law, and summarizes new legislation introduced in the Senate, Aftergood reports.

A previous version of the CRS report, issued in October, was cited by Senator Dianne Feinstein (D-CA) in a Wall Street Journal op-ed in support of prosecuting Wikileaks, though the report did not go so far as to advise doing just that, Aftergood reports.

Senator Joe Lieberman (I-CT) took things one step further, suggesting the Department of Justice should also look into whether The New York Times can be prosecuted for publishing the leaked diplomatic cables.

Complicating the effort to prosecute WikiLeaks, and perhaps The New York Times as well, is the fact that only a small portion of the documents released thus far have specific information pertaining directly to national defense.

Elsea states in the Congressional Report that she believes that most of the cables "fall under the general rubric of information related to national defense," but she acknowledges the possibility that not all of the cables are national defense-related.

Further complicating the situation is that Elsea and others attempting to analyze the legality of WikiLeaks have been barred by their superiors from examining the contents of the WikiLeaks' website.

In conclusion, Elsea states that prosecuting anyone or anything for publishing the leaked diplomatic cables will be difficult at best. The people or entities who illegally obtain classified information are easy to prosecute, but not the publishers of the material. Elsea wrote:

"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."

More on WikiLeaks: 

WikiLeaks Winning the Info War So Far
Timeline of Attacks on WikiLeaks and Julian Assange
Julian Assange Arrested in UK, Denied Bail
WikiLeaks: U.S. Can't Stop Middle East Arms Race
Swiss Cut Off WikiLeaks' Bank Account
WikiLeaks' Swedish Servers May Be Under Attack
Video: Julian Assange's Life on the Run
WikiLeaks Reveals U.S. Strategic Sites List
WikiLeaks' Assange May Seek Swiss Asylum