Will the US Government go Ex Post Facto on WikiLeaks?

Julian Assange has become one of the US Federal Government’s most wanted men. With the release of US Diplomatic Cables on his media site, WikiLeaks, and the subsequent worldwide news coverage of the story politicians from across the spectrum have already tried and convicted him of heinous, yet unnamed crimes.

Former Alaska Governor turned all around bimbo Sarah Palin called him an anti-American operative with blood on his hands. Former Arkansas Governor and bass player Mike Huckabee feels executing Assange is the only appropriate punishment. Congressman King wants WikiLeaks designated a Foreign Terrorist Organization. The latest information is that the US Justice Department is trying to figure out a way to charge Mr. Assange with a crime of some kind. Vice President Biden himself told the country on Meet the Press that the US was looking into it right now and although he wouldn’t comment on specifics, he did say he felt WikiLeaks was “…closer to being a high-tech terrorist” than a whistle-blower site.

The Espionage Act of 1917 made it a crime to:

  • convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies.

This was punishable by death or by imprisonment for not more than 30 years or both. The US did use the Espionage Act several times shortly after its creation, but later rulings raised the bar the prosecution must meet to the “imminent lawless action” test. That test requires that the free speech the accused has made intends to incite a violation of the law that is both imminent and likely.

In 1971, the Nixon Administration tried to stop the New York Times and the Washington Post from publishing classified documents about the US involvement in the Vietnam War. The Administration used the Espionage Act in part of its complaint against the newspapers. In a 6-3 decision, the Supreme Court supported the Times under the First Amendment of the US Constitution and indicated the government had not met its burden of proof to restrain the Times from continuing its work as a free press.

If you consider what WikiLeaks has done in releasing the US Diplomatic Cables, it is no different from what the Times did in 1971 during the Vietnam War. The Justice Department clearly knows this, and I don’t think it’s a coincidence that a group of US Senators recently introduced a bill making it illegal to publish names of informants serving the US military and intelligence organizations.

So if the government can’t use the Espionage Act to charge Assange, what can they use? First of all keep in mind that Julian Assange is not an American citizen, further complicating matters. Additionally, the government would have to find grounds to charge him that would not also make what the New York Times, The Guardian and other newspapers did illegal; i.e. publish the US Diplomatic Cables! Unless the government has evidence that Assange was somehow involved in actually stealing the documents from US Government computers, they’d have to find another way.

Might the US take existing law like the Espionage Act and try to retrofit it to make what WikiLeaks did illegal? If you recall, during the Bush Administration, when the New York Times blew the cover off the government’s secret spying program on US citizens, major phone companies were in legal trouble for supplying the government our phone records, internet records and more through a process called data mining. The Administration, aided by an argumentative but willing Congress made laws retroactively making it legal for the phone companies to have helped the government spy on us!

So do I think it unlikely that an angry and embarrassed US Federal Government would try to change the laws after the fact to make what Julian Assange did illegal? No, I most certainly do not.


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