Is WikiLeaks Illegal?

It’s uncertain just how much the recent leak of over 251,287 cables (dating from 1966-2010) will affect diplomatic relationships around the globe. While debates rage about the political ramifications of WikiLeaks, and its effect on international diplomacy and free speech, people are discussing the legality of the site and its practices. Just how legal are WikiLeaks’ activities? Can the organization be prosecuted for espionage, and can countries take steps to protect their information?

Some background: back in May, Army intelligence analyst Pfc. Bradley Manning was caught after forwarding hundreds of thousands of documents to WikiLeaks, the international non-profit that publishes leaked documents anonymously online. In July and October, WikiLeaks covered the Afghanistan and Iraq wars while in this latest release, the site posted 220 of the cables; an anonymous intermediary provided all the cables to The Times. Many of the cables are unclassified, and none are marked top secret, but some are marked “secret” and/or “noforn” (not to be shared with foreign governments).

When WikiLeaks contacted the State Department in what Jack Goldsmith calls an attempt to “mitigate the harms of publication of the documents to individuals,” State Department legal advisor Harold Koh responded with a letter saying the leaked cables “place at risk the lives of countless innocent individuals,” “place at risk on-going military operations,” and “place at risk on-going cooperation between countries.” But just how much is at risk? Much of the information in the leaks was already known to many journalists and governments; this latest release of confidential diplomatic correspondence consists of frank assessments of foreign leaders, surprisingly similar to the types of texts you’d expect from Gossip Girl.

While the information itself is not top secret, the leak may undermine foreign relations by making diplomats more closed-lipped, for fear of publication of private opinions. While WikiLeaks has received awards for journalism in the past, the latest leak could do more damage to free speech than good. Some, like Jason Poblete, fear that the “indiscriminate release of sensitive cables helps our enemies, embarrasses our friends, weakens security, and puts Americans who work in that business in danger.” Others, like Rep. Peter King (R-N.Y.), the incoming chairman of the House Homeland Security Committee, are calling for WikiLeaks to be “officially designated as a terrorist organization.” As legal blogger Jonathan Turley points out, this “terrorist” designation could also extend to other news sources (like The New York Times) for publishing leaked stories (like the Pentagon Papers).

Whether or not we understand the full ramifications of the latest leak, we can examine the legalities of prosecuting Wikileaks and the publishers. In the United States, generally publishing classified information is not a crime, though news organizations can be prosecuted for publishing the identities of covert agents, nuclear secrets, and certain communications intelligence such as cryptography, signals communication intelligence, or interception of foreign governments’ communications. The blog Legal As She Is Spoke does a good job of analyzing the applicability of the Espionage Act and its various sections, namely section 793(e), 794(b) and 798, which cover the punishments for those who communicate or fail to communicate confidential information, publish confidential information with the intent to deliver it to an enemy, or publish specific categories of information. You can find a good definition of espionage at the Looper Reed & McGraw Law Blog.

The government can prosecute whoever leaked the classified information, since that was an illegal act. However, it’s harder to prosecute Wikileaks: since it’s not based on the United States, it would probably not be subject to a court order from a U.S. district court. On the other hand, while the ruling from the Pentagon Papers case stops the Government from preventing publication, it does allow the Government to hold those who publish information accountable after publication if laws were broken. There may also be issues with prosecuting WikiLeaks founder Julian Assange, since he is not a US national. In the mean time, there has been talk of shutting down the WikiLeaks site or limiting its access within the US.

The only thing that seems to be clear out of all this legal and political mess is that the situation with WikiLeaks is unlikely to be resolved anytime soon.