Steven Aftergood
Secrecy News
April 30, 2011

A grand jury has been empaneled in the Eastern District of Virginia to investigate a possible violation of the Espionage Act involving the computer-based acquisition of protected government information concerning national defense or foreign relations.  In other words, the Grand Jury seems to be investigating WikiLeaks.

Glenn Greenwald of Salon.com reported that a summons to appear before the Grand Jury on May 11 was served on an unidentified recipient in Cambridge, MA. He also posted a copy of the document.  See “FBI serves Grand Jury subpoena likely relating to WikiLeaks,” April 27.

The initial hurdle to any possible prosecution of WikiLeaks is to identify a specific crime that it may have committed.

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The subpoena suggests that the path chosen by prosecutors (as predicted) is to allege a conspiracy to violate the Espionage Act under 18 USC 793(g).  But like much of the Espionage Act, the practical meaning of this statute is quite unclear.  So is its application here, beyond the bare implication that WikiLeaks instigated the unlawful transfer of information in a manner that is not protected by freedom of the press.

As things stand, everyone agrees that information gained by committing a crime is not protected by the First Amendment.  One cannot expect to break into a building to steal documents and publish them, and then invoke freedom of the press.

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But what constitutes a crime?  Is it asking a question about a topic that one knows to be classified?  Buying someone lunch in the hope that he may divulge closely held information?  Indicating a willingness and a capacity to receive unauthorized disclosures confidentially?  These would hardly seem to qualify as criminal acts since they are ordinary conventions of national security reporting.

What makes this case both important and dangerous is that by pursuing this line of attack, the reported Grand Jury investigation of WikiLeaks may “clarify” such speculative matters, thereby generating new limitations on freedom of the press.

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