But in the United States, generally publishing classified information is not a crime. The sort of information that a news organization
can be prosecuted for publishing is limited to: nuclear secrets (
Atomic Energy Act), the identities of covert agents (
Intelligence Identities Protection Act), and certain forms of communications intelligence (
Section 798 of the Espionage Act).
Perhaps lamenting that the U.S.
does not have an Official Secrets Act like the United Kingdom, right wing columnists have consistently misinterpreted these Acts, or have cited other provisions of our espionage laws which almost surely do not apply to Wikileaks.
The most commonly cited statute by those who advocate prosecuting Wikileaks is
Section 793(e) of the Espionage Act. In August, former Bush speechwriter Marc Theissen linked to this section in an article for the Washington Post
when he wrote that Wikileaks is “a criminal enterprise” whose founder, Julian Assange, should be arrested by U.S. forces on foreign soil, international law be damned.
But this provision does not apply to those who
publish information.
Section 793(e)reads “Whoever having unauthorized possession of, access to, or control over any document…relating to the national defense…willfully communicates… the same and fails to deliver it to the officer or employee of the United States entitled to receive it…[s]hall be fined under this title or imprisoned not more than ten years, or both.”
As made clear in
the Pentagon Papers case, the word “communicates” was never meant “to encompass publication” or to affect the press. Congress included the word “publish” in three other sections of the Act but
intentionally left it out of 793. As the legislative history of this provision states,
“Nothing in this Act shall…in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States.”
Justice Douglas referenced the legislative history in his concurring opinion, when he
wrote of Section 793, “it is apparent that Congress was capable of, and did, distinguish between publishing and communication in the various sections of the Espionage Act.”