WikiLeaks prosecution?

By Chris Daly

The WikiLeaks case continues to confound U.S. authorities.

As today’s Times points out in an article by legal correspondent Charlie Savage, the application of existing U.S. law to the novel circumstances created by the Internet is no simple matter.

It appears that the Obama administration has decided not to even bother trying to pursue a Pentagon Papers-style request for an injunction to prevent journalists from publishing. Their inaction seems to indicate that the Justice Department’s lawyers have concluded that they would not win such a request, probably because these disclosures do not meet the standard defined by the Supreme Court in 1971 in deciding the Pentagon Papers case. In that ruling, the court said, in essence, that if the government ever wanted to seek to impose prior restraint on journalists, the government would bear the burden of proof to show some immediate, serious threat to national security. Without defining exactly what kind of threat, they strongly implied that it would have to be something more grave than the kind of diplomatic embarrassment that seems to be the major consequence (at least thus far) from the WikiLeaks revelations of State Department cables.

That leaves the matter of possible criminal prosecution of WikiLeaks founder Julian Assange. He is under arrest in Britain (where he was obnoxiously denied bail even though he voluntarily surrendered) and faces charges of sexual assault in Sweden. Notably, he does not face any criminal charges (at least not yet) in the United States. This part of this incident is most closely parallel to the U.S. government’s criminal prosecution of Daniel Ellsberg in 1971 on the grounds that he had violated the 1917 Espionage Act and stolen government property.

When his case went to trial in 1973, it was famously thrown out when evidence came to light of the government’s multiple bad deeds toward Ellsberg, including breaking into his psychiatrist’s office in search of damaging confidential information (which the Nixon team, naturally, planned to use to discredit Ellsberg by giving it to the press — i.e., by committing another leak). In a dramatic denouement, the judge in the Ellsberg criminal case, Judge William Matthew Byrne Jr., had the decency to throw the case out.

Anyone looking for background on the Pentagon Papers case and the Ellsberg prosecution should start with two key books:

The Day the Presses Stopped, by David Rudenstine.

Secrets, by Daniel Ellsberg.

To be continued. . .


Filed under history, Journalism, journalism history, leaks, media, Wikileaks

2 responses to “WikiLeaks prosecution?

  1. the government would bear the burden of proof to show some immediate, serious threat to national security

    In reading this, I was reminded of an episode of This American Life I heard a while back that discussed the origins of the government’s state secret privilege and how easily and readily it has been abused ( It was an alarming story, and as I read your post, I wondered if the same might not be true in this case. The radio program included a conversation with Barry Siegel, pulitzer-prize winning journalist and author of the book, Claim of Privilege, in which he investigates the states secret privilege. I haven’t read it, but I just added it to my wishlist (you know, in case you’re shopping for me sometime). Thanks for the thought-provoking post.


  2. Pingback: 2010 in review | Prof Chris Daly's Blog

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