In the Washington Post, Baruch Weiss, the defense attorney who represented Keith Weissman in the government’s classified information case against Weissman and his ex-boss, Steve Rosen, the former AIPAC foreign policy honcho, outlines the difficulties of making a similar case agains WikiLeaks founder Julian Assange.
The key takeaways:
–Under the only relevant law that seemingly criminalizes civilians who relay classfied information, the 1917 Espionage Act, prosecutors must show that Assange sought to damage U.S. national security. This is a very high hill to climb, made evident when the government dropped the charges against Rosen and Weissman a year and a half ago. You also have to show there was damage, no easy thing in the short term.
–First Amendment freedoms will necessarily haunt any case.
–It’s almost impossible to prove something is secret without revealing other secrets.
Josh Gerstein, who did yeoman’s work covering the AIPAC trial for the New York Sun and Politico, assesses the First Amendment difficulties of trying such a case here.
At Lawfare, Benjamin Wittes has smart takes here and here (citing Stephen Vladeck, pdf) on why the relevant section of the 1917 Act, 793 (e) is so problematic, and here on why a proposed law backed by Sens. Joe Lieberman (I-Conn.), John Ensign (R-Nev.) and Scott Brown (R-Mass.) would quite likely make matters worse. Here’s Wittes on the central weakness of 793 (e):
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. 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.
Or, as Judge T.S. Ellis, the federal judge who handled the AIPAC case, put it so memorably in 2006, pressing prosecutors on what Rosen and Weissman should have done when they were made aware of allegedly classified information:
What are they supposed to do, have a lobotomy?
