The Obama administration and some members of Congress have been making noise about prosecuting Julian Assange (assuming he could be extradited to the U.S.) for publishing classified government documents on his website, WikiLeaks. But no U.S. law currently exists that forbids the publication of diplomatic cables, according to an analysis by the Congressional Research Service.

 

Only federal employees can be subject to prosecution for unauthorized disclosure of classified materials, says the CRS report.

 

But that doesn’t mean there aren’t other statutes the U.S. Department of Justice might try to use to go after Assange. Senator Dianne Feinstein (D-California), for one, is in favor of using the Espionage Act of 1917 to convict the WikiLeaks founder.

 

However, Steven Aftergood at Secrecy News says the Espionage Act “only pertains to information ‘relating to the national defense,’ and only a minority of the diplomatic cables could possibly fit that description.”

 

Defenders of WikiLeaks and the newspapers that have published some of the State Department cables point to the 1971 Pentagon Papers case, in which the Supreme Court voted 6-3 to not prosecute The New York Times and The Washington Post for running excerpts of a classified Pentagon history of the Vietnam War that had been photocopied and released by Daniel Ellsberg, who had contributed to the report.

 

The Congressional Research Service report released on December 6 observed that “Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.”

-Noel Brinkerhoff

 

Publishing Classified Info: A Review of Relevant Statutes (by Steven Aftergood, Secrecy News)

The U.S.'s Weak Legal Case Against WikiLeaks (by Michael A. Lindenberger, Time)

Criminal Prohibitions on the Publication of Classified Defense Information (by Jennifer K. Elsea, Congressional Research Service) (pdf)