In today’s WSJ, Gabe Schoenfeld provides a characteristically excellent explanation of why Julian Assange should be prosecuted under the espionage act for the Wikileaks dissemination of our national defense information.
While I concur with most of Gabe’s analysis, I don’t fully agree with him on the First Amendment. He assumes Assange has free speech and free press rights derived from the American Constitution. By this assumption, Gabe digs himself a hole from which he must then dig himself out in order to justify prosecution. He does so deftly, but I think the exercise is unnecessary because:
(a) In this context as in that of alien enemy combatants, we should presume that constitutional protections do not extend to aliens located overseas, particularly those who are hostile to our government. The Constitution is intended to protect Americans from arbitrary or abusive acts by their government, not to protect aliens outside our borders, much less enemy aliens. And
(b) Assange is not a journalist. As Gabe points out, the First Amendment has never immunized journalists from liability for publishing national defense information shielded by the Espionage Act — the Pentagon Papers case merely held that there should not be a prior restraint against publication, not that there could not be a post-publication prosecution. Moreover, as Gabe further notes, prosecutors are leery of proceeding against journalists due to judicial interpretations of the espionage act that call for proof of “bad faith” on the part of the journalist. I think this hesitation is misplaced: at most, “bad faith” for these purposes means the prosecutor must show the journalist was aware that publication could harm the U.S. — it doesn’t matter if the journalist had what he subjectively saw as admirable motives. But such knotty journalistic intent issues are irrelevant when we are dealing with a non-journalist who acts with an unabashed goal of undermining the United States. (On Assange’s anti-American rationale, I highly recommend Gordon Crovitz’s insightful WSJ column from Monday, “Julian Assange, Information Anarchist.”)
One final thought. Gabe relates that my old friend and colleague Baruch Weiss has opined that Defense Secretary Robert Gates would be a helpful witness for Assange because Gates has described claims of national-security damage by Wikileaks as “significantly overwrought.” Gabe very effectively shows that Baruch has offered an incomplete version of Secretary Gates’s assessments (Gates judged an earlier Wikileaks document dump to be ”potentially severe and dangerous”). But beyond that — as I imagine Baruch would have been among the first to point out when he was a very fine prosecutor — the relevant issue in a prosecution is not the extent of the actual damage caused by the disclosure. What matters is whether the disclosure was prohibited under the act and whether the defendant intended harm. It is black-letter law that criminal schemes do not have to be successful, or even plausible, in order to be prosecutable as serious crimes. Osama bin Laden hopes to destroy the United States; that he is incapable of doing so would not be a defense against a terrorism conspiracy charge.