Over the Top
Charging the WikiLeaks leaker with treason would be absurd.
This was a startling charge. "To gather sensitive information" and then to deliver it "to persons not entitled to receive it"—this is what news reporters do all the time. More remarkably, Rosen and Weissman were indicted for receiving the information. This is what newspaper, magazine, and Web site readers do all the time. If the Justice Department were to interpret Section 793 literally, it could arrest not only reporters like Seymour Hersh, Bob Woodward, and Walter Pincus but the editors and subscribers who read their articles.
U.S. District Judge T.S. Ellis, who presided over the AIPAC case, made precisely this point during the trial, specifically on Jan. 20, 2006, while sentencing Franklin:
All persons who have authorized possession of classified information and persons who have unauthorized possession, who came into possession in an unauthorized way … must abide by the law. … So that applies to academics, lawyers, journalists, professors, whatever. [Italics added.]
Now, the Espionage Act does state one caveat on this point—that unauthorized people who possess classified information can be prosecuted only if they have "intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign nation." But this sets an awfully low bar. Reread that passage carefully: "intent or reason to believe." In other words, they don't need to have an "intent" to damage the United States or help another nation—only a "reason to believe" that the information could be used to that purpose.
In the end, the charges against the AIPAC officials were dropped; the judge, the prosecutors, everyone involved, realized that the logic of the law was either too vague or too draconian. (For a jaw-dropping list of what Section 793 prohibits, click
And here's where—here is the only place where—WikiLeaks' Assange might face prosecution. Like the AIPAC defendants, he received classified information without authorization and then transmitted it to others who had no authorization.
It is extremely doubtful that officials in the Obama administration would press this charge. It would be even more appalling if they did. If Assange is charged with a crime, one might ask why Bill Keller, the New York Times' executive editor, shouldn't be charged, too. (Yes, the Times chose not to print some of the more allegedly damaging documents naming Afghan informants, but he received the information, and transmitted some of it, without authorization.)
During the AIPAC case, before the charges were dropped, Judge Ellis conceded that the espionage law was problematic but added, "The law says what it says. … If it's not sensible, it ought to be changed. But [Congress is] the body that changes it, not judges. The judge simply interprets and applies the law."
Four and a half years have passed now, and that law is still on the books. The proper scope of classified information—what should be secret, what shouldn't, what's a noble leak, what's a dangerous one—is a matter of high-profile debate. (Even Daniel Ellsberg, the leaker of the Pentagon Papers and in general a defender of WikiLeaks, says that some secrets should be kept secret.)
Instead of loosely tossing around words like treason, Congress should maybe think about crafting a tighter, more sensible law.
Fred Kaplan is Slate's "War Stories" columnist and author of the book, The Insurgents: David Petraeus and the Plot to Change the American Way of War. He can be reached at email@example.com. Follow him on Twitter.
Photograph of Julian Assange by Leon Neal/AFP/Getty Images.