If Wikileaks Broke the Espionage Act, So Did the New York Times

Attorney General Eric Holder says the criminal investigation into Wikileaks founder Julian Assange is more than just "saber-rattling," and Justice Department officials are claiming he violated the Espionage Act. If that's true, isn't the New York Times guilty as well?

The Espionage Act of 1917 is a crazy and spectacularly unconstitutional law that basically makes it a crime to publish anything the federal government doesn't want you to publish: It criminalizes obtaining or communicating "information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States."

According to the Washington Post, Justice Department officials are contemplating a prosecution of Assange for violating it by taking the cache of State Department cables (not to mention two batches of military documents from the Afghan and Iraq wars) from Pvt. Bradley Manning, an Army intelligence analyst who's already been arrested and faces military prosecution, and publishing them on Wikileaks. The fact that Assange is neither a citizen nor a resident of the United States doesn't seem to bother Holder, who told reporters yesterday that that there's no reason to believe that "anybody at this point, because of their citizenship or their residence, is not a target or a subject of an investigation that's ongoing."

If Holder really believes that the Espionage Act is a constitutional law that ought to be enforced—as opposed to a mere pretext for making Assange's life is miserable as possible—then he'd better be prepared to go after the New York Times, Le Monde, Der Spiegel, and El Pais, all of which published the classified cables after being granted early access and were part of a clear conspiracy with Wikileaks to break the Espionage Act.

Assange, under Holder's theory, violated the Espionage Act three ways: He "obtained" "information respecting the national defense" illicitly, which the act makes a crime (we will stipulate here for the purposes of argument that the State Department cables can be said to relate to "national defense" as required under the act, an iffy claim); he "transmitted" that information by passing it along to the newspapers Wikileaks worked with; and he "communicated" it by publishing it on Wikileaks' site.

The New York Times is obviously guilty of two of those three elements of the Espionage Act. It "obtained" the classified cable database—not from Assange, but from the Guardian, which had itself obtained it from Assange—and "communicated" elements of it both by publishing whole cables and by reporting their contents. (Reporting them, it should be noted, before Wikileaks did—the Times had its cablegate coverage up several hours before Wikileaks had its site together.) The Times claimed in its introduction to its Wikileaks coverage that it gave the White House an opportunity to request redactions to some of the cables, and that it "agreed to some, but not all" of those suggestions.

So if it was a crime when Assange obtained the database, why wasn't it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It's a crime to "obtain [it] from any person, or from any source whatever." Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act. Likewise, if it was a crime when Assange published the cables, why wasn't it a crime when the Times did? And how could it not be a crime for the Times to have published classified data that the White House expressly asked it not to, hours before Wikileaks published anything at all? It's incoherent to argue that Assange and Wikileaks violated the act but that the Times didn't.

Likewise, the Guardian, Le Monde, El Pais, and Der Spiegel are also clearly guilty—if one adopts Holder's view—of violating the act, and they didn't even offer the White House the courtesy, as the Times did, of an opportunity to request redactions. Each one of them illegally obtained and published the material, and the Guardian illegally transmitted it to the Times. The fact that they are all foreign corporations shouldn't stop Holder from going after them, since he's made clear that no one is safe from this investigation "because of their citizenship or their residence." The Espionage Act also has a conspiracy clause, so Wikileaks and all the papers can also have another count added to the indictment, since each was part of an obvious conspiracy to publish the cables.

We asked the Justice Department whether the Times and the other papers involved were targets of the investigation, and a spokeswoman responded that "while an investigation is ongoing, we will not comment on potential criminal charges or the direction or scope of that investigation."

We think its fairly obvious that the Department of Justice won't go after the Times or any of the other papers involved in the story. But if it doesn't, that's just evidence that its attempt to use the Espionage Act to go after Assange isn't about enforcing laws: It's about retribution, harassment, and rattling sabers.

[Photos of Assange and Holder via Getty Images]

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