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Prosecute WikiLeaks, then reform our espionage laws

By Jeffrey H. Smith
Tuesday, November 30, 2010;

Julian Assange's reckless and arrogant publication on WikiLeaks of some 250,000 sensitive U.S. diplomatic cables violates U.S. law and should be punished - but it should also motivate government officials to more thoroughly examine the problem of leaks and what to do about them.

Assange has already released thousands of documents detailing military operations in Iraq and Afghanistan. When U.S. officials learned that he was planning to release these cables, they wrote him demanding that he return the documents and "cease publishing" them because doing so would violate U.S. law, risk "countless" lives and otherwise do great harm to the United States. Assange callously dismissed these concerns as "entirely fanciful." But no rational American - even those opposed to the policies of this or previous administrations - can read these documents and doubt that their disclosure will do great harm.

So, what should we do now?

First, we should seek to prosecute Assange and WikiLeaks. There can be little doubt that his actions violate 18 USC 793 (e), which prohibits anyone with "unauthorized possession" of information relating to the national defense that could harm the United States or help an enemy from willfully communicating that information to someone not authorized to receive it or from willfully retaining the information after the U.S. government has demanded that it be returned. For years, lawyers have debated whether that language could be used to prosecute a newspaper that prints classified information. No legitimate journalist or newspaper has ever been prosecuted under this statute. But it is hard to argue, based on the available facts, that Assange deserves the same treatment as a responsible news organization that carefully considers the views of the government before deciding what, if any, classified information to publish. The Constitution protects the media, but it surely does not protect those who wantonly do great harm.

Second, we should figure out how someone was able to provide the documents to WikiLeaks in the first place and make sure it doesn't happen again. An Army private is reportedly being held on accusations of leaking the documents. On Sunday, the Pentagon announced sensible steps to close the barn door - albeit it too late. After Sept. 11, 2001, there was a great push to share information more widely so government agents could "connect the dots." When tightening up the system to prevent more leaks, great care must be taken not to reconstruct "stovepipes" of information that are inaccessible to those who need it. Technology is available that can enable a distributed system that promotes sharing but also has controls, such as permissioning and auditing functions, that provide accountability and security. The administration and Congress must make this a higher priority.

Third, we should modernize the espionage statutes, the law under which leaks are prosecuted. Sens. Ben Cardin (D-Md.) and Jon Kyl (R-Ariz.) have rightly begun to look at them. The espionage laws date to World War I, and although they have served us well, the WikiLeaks case calls into serious question whether they are adequate to deal with the modern digital world.

Fourth, those with authorized access to classified information must show greater discipline in how it is handled. Too much information is classified or over-classified. All too often officials leak properly classified information. Sometimes these are "authorized leaks" by a senior official acting within his authority to provide classified information to the press - but without attribution or formally declassifying the information. The motive may be laudatory - for example to inform the public about a policy change. Often, however, leaks are not authorized and are efforts to influence policy or manipulate public opinion. Sometimes they are merely an exercise in ego by a misguided official. Rarely are they by a genuine whistleblower seeking to disclose wrongdoing. Regardless of motive, one impact of leaks, particularly "authorized leaks," is to undermine the classification system. A president or Cabinet secretary cannot rail at the damage done by an unauthorized leak on Monday and then on Tuesday disclose classified information to the press "on background" and expect the system to maintain its integrity.

This is not to say, of course, that leaks by officials in Washington as part of the policy process are remotely akin to the treachery of Assange, but the WikiLeaks case should cause them to rethink how information is classified, with whom it should be shared and the consequences of their own leaks, however well-intentioned.

The writer, a partner at Arnold & Porter, was general counsel of the CIA from 1995 to 1996. He occasionally advises The Post on the handling of classified material.

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