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In Lively Discussion, Panel Debates Pros and Cons of Prosecuting WikiLeaks
By Mary Jacoby | October 3, 2022 1:12 pm

Should the U.S. government prosecute WikiLeaks founder Julian Assange for disclosing a vast trove of classified State Department cables and military documents?

The pros and cons of prosecution– and whether WikiLeaks is legally distinguishable from newspapers and other traditional media – were debated Saturday at the National Association of Former U.S. Attorneys annual conference in Santa Fe, N.M.

“There seems to be enough to constitute a prosecutable case,” former Justice Department National Security Division chief Ken Wainstein said during the panel. “The government has to show damage to national security and that Assange intended to harm the U.S. The government can make a case in both terms.”

A grand jury was convened last year in the Eastern District of Virginia outside Washington, D.C., to examine possible criminal charges against Assange and other civilians under statutes including the Espionage Act, which prohibits willful disclosure of classified information and aiding and abetting an enemy in time of war.

Jack Goldsmith, Ken Wainstein, Eric Snyder, Charlie Savage, Valerie Plame and ex-NAFUSA president Rich Rossman

Harvard law professor Jack Goldsmith, who headed the department’s Office of Legal Counsel for nine months during the George W. Bush administration and clashed with the White House over legality of anti-terrorism measures, argued against prosecution. “Any such trial of Assange would be enormously politically controversial and also put a spotlight on the large hypocrisy throughout the government on the disclosure of classified information,” Goldsmith said.

Goldsmith cited the likelihood that the United Kingdom, where Assange currently resides; or Sweden, which is seeking to extradite him to face sexual assault charges; would consider the prosecution to be primarily political in nature. The countries could invoke exceptions in their extradition treaties with the U.S. for political prosecutions and refuse to send Assange to the U.S. for trial, Goldsmith said.

In a light moment, New York Times Justice Department reporter Charlie Savage, another panelist, noted that at one point some members of Congress had called for Assange’s assassination. “So this was seen as the moderate approach, just to prosecute him,” Savage said to laughter.

Who is a Journalist?

A government leak prosecution “really highlights a collision between two very important values” that are often in conflict, Wainstein said – national security and the ability of a First Amendment-protected press to monitor the activities of the government, he said.

One problem with the Espionage Act, drafted in 1917 and since amended, is that it makes no distinction between a leaker and a journalist, Wainstein said.

“Because the ramifications are so significant of prosecuting the press, the Attorney General has to approve subpoenas to media organizations” to appear as witnesses, Wainstein said, and in the history of the Espionage Act no member of the traditional media has been prosecuted under it, he said.

Prosecuting government officials who leak classified information doesn’t cause “much heartburn,” because they sign an oath not to disclose such information, Wainstein added. “But journalists don’t sign that oath,” and prosecuting them could have a “chilling effect” on their ability to hold government accountable, he said.

Therefore, its important for the government to make a distinction between WikiLeaks and traditional media like the New York Times, he said. Wainstein and fellow panelist Eric Snyder, a former Southern District of New York prosecutor, said they believe a clear distinction can be drawn between traditional media and WikiLeaks, an anti-secrecy organization that publishes leaked documents on the Web without doing its own reporting or adhering to commonly accepted journalistic practices and ethics codes.

But Goldsmith and Valerie Plame Wilson, the former CIA cover operative whose cover was blown by a leak to the press, both argued that making such distinctions can lead to a slippery slope.

Goldsmith said that while the national security journalists he knows operate “with a principle and integrity that I’m quite confident Assange doesn’t have,” he added, “I’m not sure you can show Assange is enabling leaks in any different way than the New York Times.”

Government ‘Hypocrisy’

“Government officials do facilitate the leak of classified materials” to reporters regularly to fulfill their own agendas or help achieve policy goals, Goldsmith said, citing the books of Bob Woodward as an example.

Said Wilson: “We know that every single day Washington is lubricated by journalists who are feeding off senior officials who are tipping off to them for one reason or another.” She added: “I feel very strongly that my name was revealed as retaliation.”

Wilson’s husband, Joe Wilson, a former U.S. ambassador in Africa, had publicly questioned the Bush White House’s evidence for arguing that Iraq President Saddam Hussein had certain weapons of mass destruction. Stopping Hussein from using those weapons – which turned out not to exist – had been one of the prime rationales the administration gave for invading Iraq in 2003.

Both Goldsmith and Wilson laid the blame for the WikiLeaks episode primarily on the government. It didn’t have an effective system in place to protect its own secrets, they said. An Army private, Bradley Manning, is accused of downloading the State Department cables via a laptop computer in Iraq and giving them to Assange.

More than half a million U.S. officials and contractors had access to the classified system that held the cables, it has been reported.

Lively Q&A

An audience question from a two-time former U.S. Attorney in San Francisco, Joe Russoniello, sparked lively debate over whether the media irresponsibly harms national security by reporting on classified matters.

“Everything is fair game in the media, and their sources of information are the government,” Russoniello said. Talking to people in the government “is what they think of as investigative reporting.”

“And they don’t get it right,” Russoniello said, citing the Times’ daily column of corrections.

Goldsmith replied, “You’re right the press makes a lot of mistakes. But the government makes lots of mistakes too, and it especially makes lot of mistakes when it is acting in secret.” He added: “It is very hard to come up with a system of who decides where the line should be drawn.”

Savage, the New York Times reporter, said he would “quibble strongly” that the media is damaging national security on a regular basis. “I don’t think we do that much reporting about identities and informants.” He said the American public has a right to know, for example, “where we might be secretly at war.”

Regarding corrections, Savage said Russoniello played a “rhetorical trick” in citing them. “Corrections aren’t, ‘Oops, we damaged national security.’ Corrections are, ‘Oops, we misspelled that guy’s name and we’re going to be responsible and own up to it,” Savage said.

“The term national security is thrown around as if that ends the discussion. Very often that’s B.S.,” Savage said.

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“The term national security is thrown around as if that ends the discussion. Very often that’s B.S." -- Charlie Savage, New York Times' Justice Department Reporter, at a panel discussion on the pros and cons of prosecuting WikiLeaks.