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Espionage Act ‘makes felons of us all,’ legal expert warns

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Monday, December 13, 2010 12:36 EDT
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The US Espionage Act could make “felons of us all,” a legal expert warned Monday as the House Judiciary Committee announced plans to reexamine the “constitutional issues raised by WikiLeaks.”

Attorneys for WikiLeaks founder Julian Assange have warned that US authorities are seeking to charge him with spying charges under the Espionage Act of 1917 for his role in helping the media publish leaked US State Department diplomatic cables.

Under the Act, anyone “having unauthorized possession of” information relating to the national defense or information that could be “used to the injury of the United States or to the advantage of any foreign nation” may be prosecuted if he or she publishes it or “willfully retains” it.

Although many suspect that the Espionage Act could be used against Assange and WikiLeaks, some legal experts question if the century old legislation should, or even could, be used.

“By its terms, it criminalizes not merely the disclosure of national defense information by organizations such as Wikileaks, but also the reporting on that information by countless news organizations,” Benjamin Wittes, a senior fellow in Governance Studies at The Brookings Institution, wrote on his blog. “It also criminalizes all casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them–in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents.”

“Taken at its word, the Espionage Act makes felons of us all,” he added.

Wittes notes that the legislation probably does not “cover the overwhelming bulk of the material that Wikileaks disclosed.”

The leaked US diplomatic cables may cause embarrassment for officials in the US and around the world, but the majority of them do not contain information directly “relating to the national defense,” he added.

“The universe of viable cases under the Espionage Act seems to me far narrower than those clamoring for a Wikileaks prosecution probably imagine,” Wittes wrote.

After London Metropolitan police arrested Assange last week for a warrant out of Sweden, where he is wanted for questioning in a sexual assault case, Sen. Dianne Feinstein (D-CA) wrote an article in the Wall Street Journal claiming he should be prosecuted under the Espionage Act because he “intentionally harmed the US government.”

“Mr. Assange claims to be a journalist and would no doubt rely on the First Amendment to defend his actions,” Sen. Feinstein wrote. “But he is no journalist: He is an agitator intent on damaging our government, whose policies he happens to disagree with, regardless of who gets hurt.”

State Dept. Assistant Secretary Philip Rowley echoed Sen. Feinstein’s remarks, saying that the United States does not consider Assange to be a “journalist” or “whistleblower.”

“Mr. Assange obviously has a particular political objective behind his activities, and I think that, among other things, disqualifies him as being considered a journalist,” Crowley said.

Attorney General Eric Holder said the Department of Justice is also investigating criminal charges against Assange.

 
 
 
 
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