The Justice Department weighs a criminal case against WikiLeaks

Wednesday, August 18, 2010

IN AN INTERVIEW this year with the New Yorker, WikiLeaks founder Julian Assange acknowledged that his practice of posting largely unfiltered classified information online could one day lead the Web site to have "blood on our hands."

The Pentagon has all but alleged that this day has come. Last month, with little or no screening or verification, WikiLeaks posted 76,000 classified government documents about the war in Afghanistan, including some that contained information that could be used to identify Afghans who have cooperated with the United States. The safety of these individuals and their families may now be in danger, according to the Pentagon, which has demanded that Mr. Assange hand back the original documents and permanently take down the information from his Web site. Mr. Assange has said that he has another 15,000 or so related documents that he intends to post.

The Defense Department may have little leverage over Mr. Assange, an Australian who spends much of his time in Iceland, Sweden and Belgium. But the Justice Department is said to be considering charges against him for violation of the Espionage Act. That law is intended to punish individuals who spy on the United States on behalf of a foreign power, but it is so broad and so vague that it has been misused in recent years against individuals with no connection to spying. Attorney General Eric H. Holder Jr. last year wisely dropped such a case against two lobbyists for the American Israel Public Affairs Committee. He should not now make the mistake of trying to hammer Mr. Assange with the same flawed tool.

The government is entitled to enforce confidentiality agreements that bind many government employees, especially those who work on sensitive national security matters. And media organizations and Internet sites such as WikiLeaks should not indiscriminately make public everything they obtain. They should seek -- and responsible media organizations do seek -- to protect sources and methods, the disclosure of which could endanger lives.

But the government has no business going after third parties that obtain secret information without committing theft. Media outlets do not have a legal duty to abide by the government's secrecy demands; in the past, publication of classified documents has yielded important disclosures in the public interest that caused no harm to national security. The apparent irresponsibility of Mr. Assange and WikiLeaks should not be used to launch a prosecution that could chill legitimate news-gathering efforts.

The WikiLeaks episode does point to a need for a continued dialogue on creating responsible outlets within the executive branch for national security whistleblowers. Shoring up the independence and tools of the inspectors general at the intelligence agencies would be a good first step and one that might persuade the next would-be whistleblower to turn to a responsive and responsible government entity rather than a renegade Web site.

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