Espionage Act of 1917

12/29/10

The Espionage Act, which is codified in Chapter 37 of Title 18 of the US Codes along with revisions, extensions and other laws relating to espionage and censorship, was passed shortly after the United States entered World War 1. The courts have consistently upheld the law against First Amendment challenges, although later decisions have tended to narrow the scope. It is the law most often touted when discussing legal options that may be taken against Assange and the Washington Post has reported that sources inside the administration have reported that this is the tact the Justice Department is pursuing, although Attorney General Holder has publicly dismissed these claims.


There are several issues that arise with regards to applying this law to Assange. 1) Can a non citizen be prosecuted for violation of this law if the violations took place outside the US? 2) Does the act require an intent to harm the United States and if so, did Assange have the necessary mens rea? 3) Can the United States gain jurisdiction over Assange through extradition? 4) Can the 1^st Amendment be used as an affirmative defense? 5) Beyond the immediate concern, can and should the law be amended to make prosecution of similar acts easier? These questions will likely fill thousands of pages of briefs, memos, law review articles and ultimately court decisions. Since we have only one page to work with, we'll take a quick pass so that we're familiar with the issues that will eventually come into play.

Under current law, as set out in United States v Zehe, a foreign national acting outside the borders of the United States can be held under the Espionage Act. Zehe was an East German scientist arrested at a conference in Boston in 1984 after he reviewed classified scientific documents presented to him in Mexico City as part of an FBI sting operation. However, his case never made it past the District Court, and any potential appeals were rendered moot after he was released as part of a spy exchange with East Germany in 1985.

Most of the relevant provisions require ''[an]...intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation...'' (18 US § 793). Should he ever find himself in the inside of an American courtroom, Assange will surely argue that his intent was otherwise, and he has made numerous public statements saying that his only goal was to increase transparency. However, subsection (e) of §793 requires only '...reason to believe could be used to the injury of the United States or to the advantage of any foreign nation...'' It is here that the government might stake its case, but it could run into difficulty after turning down Assange's offer to let the State Department review and redact the information prior to publication.

Of course all of this is speculative unless the United States government gets its hands on Assange. Assange is currently under house arrest in the UK pending a hearing on extradition to Sweden, where he is wanted for questioning in a sexual abuse case. The United States has extradition treaties with both the UK and Sweden, but both treaties carve out an exception for crimes that are political in nature. Ultimately this is a political crime, and it seems unlikely that either the UK or Sweden will grant extradition, just as it seems unlikely that Assange will voluntarily set foot inside the United States. However the government may have some leeway in seizing assets belonging to Assange and WikiLeaks, if the government can show that the assets were gained as a result of violations of the Espionage act.

When we talk about the 1^st Amendment and publication of classified documents, it's tempting to jump to the Pentagon Papers and remember that Daniel Ellsburg and Anthony Russo were unsuccessfully prosecuted for publishing classified documents during the Vietnam War. However, Ellsburg and Russo were freed due to irregularities in the government's case and were not acquitted of violating the Espionage Act. Ellsburg has spoken out recently in Assange's defense. No case has ever overruled the Espionage Act on First Amendment grounds, but a series of cases have narrowed the scope. In 1919 Justice Holmes limited the scope of the act to political activity that presented a ''clear and present danger'', but that has been modified in recent years to an ''imminent lawlessness test''.

Looking forward, Congress has begun considering possible steps to prevent further similar events, or to make it easier to prosecute the cases. The SHIELD Act, introduced by Senators Lieberman, Ensign and Brown, would expand the scope of 18 US §793 by making it a crime to publish the names of military and intelligence informants. This law would have made prosecution of the Valerie Plame leak easier, but would also seriously hamstring journalists and potentially subject them to prosecution unwittingly.

Happily, there is a solution available that will both increase the security of our intelligence sources and methods and simultaneously lay the blame for the WikiLeaks incident where it belongs. The government should do a full review and evaluation to determine how the material was accessed and placed in the hands of someone who was not authorized to have it and then fix the hole, while also prosecuting the person who gave Assange the information to the full extent of the law. Those who have been given security clearances by the government have both a legal and a moral obligation to protect the information they receive in the course of doing their jobs — journalists have a different obligation, one that often comes in conflict with the government's desire for secrecy.