There have been some suggestions in the press that Wikileaks founder could and should be prosecuted under the Espionage Act. While this law has been on the books for almost 100 years and no court has ever declared any part of it unconstitutional, either facially or as applied, it is a troubling law that falls into the same category as the material support of terrorism laws, conspiracy law, and RICO -- all prosecutorial favorites because they are far easier to obtain convictions with than other kinds of laws.
These laws are all troubling for similar reasons. They criminalize behavior that could as easily be viewed as First Amendment-protected behavior: speech, association, and freedom of the press.
There are rumors that the Department of Justice has been trying to press Bradley Manning to testify that Wikileaks founder, Julian Assange, conspired with him to release tens of thousands of Iraq war-related doucments and U.S. Department of State cables via Wikileaks.
Conspiracy law has a long history and is a powerful prosecutorial tool that has troubled many lawyers and judges. A conspiracy is an agreement, express or implied, to commit a crime. Under federal law, there must be an overt act for someone to be convicted as a co-conspirator, but the accused need not have participated in the crime itself; he needs only to have agreed to participate.
Judge Learned Hand once described conspiracy as the "darling of the modern prosecutor's nursery. (Harrison v. U.S. (2d Cir., 1925)). More recently, a legal scholar noted: "The difficulty in demonstrating an agreement [in conspiracy] has proven to be the prosecutor's greatest advantage because 'in their zeal to emphasize that the agreement need not be proved directly, the courts sometimes neglect to say that it need be proved at all.'" (Joshua Dressler, Understanding Criminal Law (1995), p. 398, quoting "Developments in the Law - Criminal Conspiracy," vol. 72, Harvard Law Review, p. 933 (1959)).
Conspiracy laws "have frequently been used to deter the exercise of various civil rights and civil liberties, such as freedom of association and freedom of speech, as in many of the World War I espionage prosecutions." (Jethro Lieberman, A Practical Companion to the Constitution (1999), p. 117.) According to this commentator, had conspiracy "been invented in the twentieth century, the courts might well have voided it for violating due process. But because of its ancient lineage and because it has proved so powerful a device for securing convictions in criminal cases, the courts have consistently refused to find a constitutional flaw in its central feature."
Conspiracy law rides the narrow edge of legal legitimacy. When it is combined with other constitutionally suspect laws, concerns increase about the constitutional and moral legitimacy of the prosecution. Legally illegitimate prosecutions undermine the rule of law and the legitimacy of the DOJ, and consequently of the Executive. Initially, Attorney General Eric Holder was said to be looking to prosecute Assange under the Espionage Act. More recently, he signaled that his office was looking at other statutes.
Section (c) of the Espionage Act (18 U.S.C. § 793) makes it a felony punishable for up to 10 years when a person "receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document" ... "respecting the national defense with 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." Conspiracy to engage in any action found to violate the Act receives the same punishment.
The Espionage Act has a long, troubling history. It has been used all too often to quell speech and association of political undesirables, which has raised repeated doubts of its constitutionality, but it has never been found unconstitutional. The landmark case of Schenk v. U.S. (1919) was an Espionage Act case where the so-called "clear and present danger" test was articulated. That test was modified some 50 years later in Brandenburg v. Ohio (1969) to the "imminent lawless action" test. Other cases (namely, New York Times Co. v. United States, and United States v. The Progressive, Inc.) have raised doubts about the Act's constitutionality, but it remains on the books, still and once again raising the specter of illegitimate prosecutions to the discredit of the DOJ and the Executive. Recently, the Electronic Frontier Foundation (EFF) noted they "agree with other legal commentators who have warned that a prosecution of Assange, much less of other readers or publishers of the cables, would face serious First Amendment hurdles, and would be "extremely dangerous" to free speech rights." (EFF links to a report by the Congressional Research Service which is important reading for anyone interested in understanding these laws.)
In addition to the specter of constitutionally problematic laws and illegitimate prosecutions, one must ask, as a preliminary question, why the DOJ must search for a law with which to prosecute Assange. Why is our government openly admitting to trying to find a law under which to prosecute someone they disfavor? Isn't there something wrong with that picture? Isn't it supposed to be the other way around? The government is supposed to use the laws to prosecute those who have broken them, not sua sponte (spontaneously, of their own accord) come up with something to fit an act of which they don't approve. On that note, why is Congress considering passing a new law so prosecutors can go after publishers? Doesn't the Constitution (Art. 1, para. 10) prohibit ex post facto laws - laws passed after the occurrence of a fact or commission of an act which retrospectively change the legal consequences of such facts or acts? We're not supposed to go around punishing people for things that aren't legally prohibited. And wouldn't prosecuting publishers be a horrendous invasion of the First Amendment freedom of the press?
In June of this year, the Supreme Court made a ruling which should give us pause when we consider the Wikileaks situation. The court ruled that a law which prohibits providing "material support" to foreign terrorist organizations was constitutional, even where the "support" was peace training. The court ruled that "even well-intentioned aid to terrorist organizations is likely to backfire."
It has been one of our founding principles that intent matters when it comes to criminal liability. Now suddenly the Supreme Court is saying intent doesn't matter. If that is the case, any of us could be brought up on charges of terrorism or espionage. Increasingly in the past ten years, bad new laws have been promulgated and bad old laws have been dusted off and used to prosecute more and more people for legitimate speech and association. This is why we have a Constitution. We should look to it.