GOP senator proposes law targeting WikiLeaks 'cowards'

Nevada's John Ensign says amending Espionage Act will prevent "WikiLeaks from hiding like a coward behind a computer mainframe."

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read

A Republican senator has proposed rewriting the Espionage Act to target WikiLeaks.

Sen. John Ensign of Nevada yesterday announced a bill that would make it illegal to identify informants working with the U.S. military, which WikiLeaks did earlier this year when releasing files from the war in Afghanistan.

In last week's Iraq war files release, WikiLeaks removed names, but the U.S. Defense Department said yesterday that information in the leaked documents could still identify dozens of people.

"My legislation will extend the legal protections for government informants, such as the Iraqis named in this latest document dump, and will prevent an organization such as WikiLeaks from hiding like a coward behind a computer mainframe while putting lives in jeopardy," Ensign said.

Current law (18 USC 798) makes it illegal to disclose classified information about a "code, cipher, or cryptographic system of the United States" or "the communication intelligence activities of the United States." Any violation is a federal felony that can be punished with significant fines and prison terms of up to 10 years.

Ensign's proposal would add human intelligence--that is, the names of informants and other people quietly aiding the U.S. government--to the list of types of information that cannot legally be disclosed. The text of the legislation was not immediately available.

A report (PDF) released last month by the Congressional Research Service, a government agency that investigates legal questions for members of Congress, reviewed the Espionage Act and concluded that:

Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications related to the exercise of extraterritorial jurisdiction.

Complicating any attempt to target WikiLeaks by conventional legal means is that editor Julian Assange is not a United States citizen, and appears to have no plans to visit the U.S. and place himself under the jurisdiction of the federal court system anytime soon.

Pfc. Bradley Manning, allegedly WikiLeaks' source for the Iraq and Afghanistan war files, was charged in July with a series of crimes including violations of the Espionage Act.

If Assange or other WikiLeaks editors worked with Manning to convince him to (allegedly) release the documents, that would implicate 18 USC 793(g), which punishes conspiracies to transmit national defense information.

An analysis by Gilead Light, an attorney at Venable LLP in Washington, D.C., who has represented clients accused of espionage and other national security violations, concluded that "there is no clear answer as to whether WikiLeaks and Assange are liable for espionage."

The Obama administration, on the other hand, has reportedly concluded that WikiLeaks has violated U.S. law even before the release of the Iraq files.

Update at noon PDT: Sen. Ensign said through his spokesman that he was in Nevada today and wasn't available for an interview. But his office did send me the text of his anti-WikiLeaks measure, which takes up five pages. It changes the wording of the shall-not-leak language from "unauthorized person" to "unauthorized person or transnational threat." It creates a new crime of leaking information about "human intelligence activities" or "any information that could be used to reveal the identities of, classified sources, informants, or partners of an element of the intelligence community of the United States"--which would seem to sweep in even WikiLeaks' redacted Iraq files release. Translation: WikiLeaks = a transnational threat?