Australian citizen and WikiLeaks founder Julian Assange is clearly an "enemy of the United States," as the Wall Street Journal argues, and the Obama administration is rightly considering prosecuting him for espionage. I agree with my colleague Peter Feaver that the disclosure of State Department cables hurts our diplomats' abilities to do their jobs. But a more pressing and complex question is whether the New York Times should be prosecuted as well.
It is a crime to disclose classified information under the Espionage Act of 1917 (see 18 U.S. Code § 793, paragraph e). The Supreme Court upheld its constitutionality in Schenck vs. United States (1919). The Court ruled that "Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent." The First Amendment does not protect espionage.
The most famous prosecution under the Espionage Act was the Pentagon Papers case, New York Times vs. United States (1971), in which the Nixon administration attempted to stop the publication of a Department of Defense internal history of the Vietnam War. The Nixon administration lost the case and the New York Times (and others) published the history in full. Since the Pentagon Papers case, administrations have been generally reluctant to prosecute under the Espionage Act both because of the perceived difficulty of winning a conviction and because of general discomfort with the idea of suing the media for the content of what they publish.
The Pentagon Papers case is, however, a poor guide to Espionage Act prosecutions. The administration sought to prevent the Times from publishing, not bring criminal charges against it for what it had already published. The Court ruled that such attempts at "prior restraint" must meet a higher standard, which the Nixon administration failed to do regarding the Pentagon Papers -- which was, after all, just an internal history, not a record of ongoing operations. The Court did not invalidate the Espionage Act, nor did the ruling acquit the New York Times.
In fact, Supreme Court Justice Byron White, in his concurrence, practically invited the administration to pursue prosecution against the New York Times after the publication was completed. The "failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication," he wrote, "I would have no difficulty in sustaining convictions under these sections on facts that would not justify … prior restraint." This was in 1971.
Much more recently, the New York Times (among other media outlets) has a well-established habit of disclosing classified information. In 2005 it disclosed the existence of the National Security Agency's terrorist surveillance program. In 2006 it disclosed the U.S.'s efforts to track terrorists' financial transactions through bank records. In July 2010 it was complicit in WikiLeaks's disclosure of some 92,000 U.S. military documents related to the Afghan War. In October, it helped publicize WikiLeaks's access to 400,000 U.S. military documents related to the Iraq War. And in November it helped with the disclosure of 250,000 diplomatic cables.
The administration is considering prosecuting Assange. But what is the difference between Assange and the New York Times? Why prosecute one but not the other? They both had unauthorized access to classified information and they both communicated the information to others to the detriment of U.S. national security. The New York Times will invoke the First Amendment, but the Supreme Court ruled 91 years ago that the press is not free to disclose classified information, despite current practice. There does not seem to be a convincing reason in principle not to prosecute the Times for espionage and treason.
This reductio ad absurdum is worth exploring to illustrate the absurdity of the situation we are now in. The United States government for all intents and purposes is legally unable to protect classified information, safeguard national security, and prosecute leaks. The one tool it has -- the Espionage Act -- is a nearly century-old statute that is so draconian, politically radioactive, and difficult to implement that it is essentially defunct. The law was written in a time when there were fewer media outlets and they policed themselves with an ethic of responsibility -- in other words, ancient history. Faced with an epidemic of leaks, presidents face the choice of either doing nothing or literally accusing the press of treason. No president is going to do the latter. Under current practice, the press may disclose classified information with complete impunity.
The Obama administration should, in addition to prosecuting Assange for espionage, seek to replace the Espionage Act with a Secrecy Act that is more useable. Many (but not all) sections of the Espionage Act require demonstrating an intent to harm the United States. Demonstrating intent is virtually impossible and shouldn't be required anyway: The damage to U.S. national security is the same regardless of the source or motivation of the leak. A generic Secrecy Act should define as a crime the leaking and publishing of classified information regardless of intent.
Additionally, espionage convictions carry steep penalties, ranging from decades in prison to the death penalty. Secrecy violations, by contrast, should allow a range of lesser penalties starting with fines. If the FCC can fine television stations for uttering profanity on air, why can't the government fine newspapers for disclosing classified information? That would equip the administration with a far more useable tool that would impose a real cost on media outlets. It goes without saying that such a law should include appropriate oversight and accountability, and also include a mechanism to oversee the government's classification decisions, many of which are truthfully unjustifiable. But it is past time to update the law to protect classified information and cope with the new media realities.
Shadow Government is a blog about U.S. foreign policy under the Obama administration, written by experienced policy makers from the loyal opposition and curated by Peter D. Feaver and William Inboden.