In the aftermath of another massive document dump by WikiLeaks founder Julian Assange, could the United States adopt a tougher British standard for dealing with the unauthorized release of state secrets?
While the Pentagon says it's weighing criminal charges against Mr. Assange, who last week released 400,000 pages of US documents about Iraq, had he dropped documents about British military operations, Assange and his source could be jailed under the Britain's Official Secrets Act.
Daniel Ellsberg, the former military contractor who leaked the 1971 Pentagon Papers, a top secret study of US government decision-making during the Vietnam War, suspects the latest WikiLeaks release will encourage new legislation to keep US secrets under wraps.
Mr. Ellsberg, now an activist who joined Mr. Assange in London for a press conference to announce the WikiLeaks Iraq war logs, says President Obama is already wielding the US espionage act “as if it were a kind of Official Secrets Act."
After Assange released a cache of secret documents about Afghanistan, the Obama administration reportedly asked its Western allies to consider opening criminal investigations against the WikiLeaks founder. US Army PFC Bradley Manning, the alleged leaker accused of providing WikiLeaks with thousands of pages of secret Afghan war documents that were leaked earlier this year, has been charged under the US Espionage Act.
But whether Assange could be charged or convicted in the US under its espionage laws remains an open question. Media outlets that publish secret documents generally enjoy First Amendment protections that the leakers themselves do not.
As Gilead Light, a member of the white collar criminal defense group with law firm Venable LLP in Washington, said in a piece for Reuters following the Afghanistan document dump, "Precedent, most notably the Pentagon Papers case, would seem to indicate that WikiLeaks is protected from publishing leaked documents by the First Amendment. The government rarely attempts to prosecute a member of the media for publishing the fruits of someone else’s leaks."
But, Mr. Light, raises an important question about WikiLeaks place in today's media: "Can a website that devotes itself exclusively to leaking documents compare itself to the New York Times? Clearly the Justice Department is reexamining whether or not Assange and his website can face criminal prosecution under US law."
According to Ellsberg, Congress attempted to pass a tougher secrets act in 2000 but President Clinton vetoed the bill. But he suspects a similar bill could reemerge depending on gains by Republicans at the polls in the US next week.
A move to enact legislation that would criminalize publishing secret documents, which have been leaked by others, would also meet fierce opposition in Congress and elsewhere.
Britain's secrets act
In Britain, the secrets act has faced sustained criticism by journalists and others who have lambasted it as antiquated and riddled with holes. The act is rooted in legislation passed as far back as 1889.
In several cases, the British government has failed to win convictions after charging individuals with the act, or dropped charges amid public outcry.
One such case involved Clive Ponting, who was charged with breaking the act after leaking two documents about the sinking of the Argentine ship, the General Belgrano, during the Falklands war.
Government ministers had misled the public into thinking the vessel was threatening British lives when it was sailing away from the battle zone when it was attacked by submarine. Although a judge advised jurors to convict, they ignored his advice and acquitted Mr. Ponting.
Problems continue to dog application of the act, even following recent amendments.
In 2008, Derek Pasquill, an official at Britain’s Foreign Office, was accused of leaking confidential documents to journalists about the government's attitude toward secret CIA rendition flights and contacts with Muslim groups. Prosecutors later admitted that court documents, which would have been disclosed as part of the legal case, would have undermined its case that the leaks were damaging.
To many, such cases have bolstered the argument that no one should be penalized for disclosing information about malpractice where the disclosure is in the public interest – even though no such defense exists in Britain's law.
Nevertheless, critics of the act still express concern about its potency.
“The Official Secrets Act allows the government to politicize leaks,” says Emily Butselaar, an editor at the London-based organization Index on Censorship, which campaigns on freedom of expression issues. “Prosecutions can be pursed in cases where there is a clear public interest ... because the leaks have proved embarrassing for the government or minister.”
What's more, she says, “it allows ministers to frighten civil servants into thinking twice about whether to blow the whistle on government policy. If a policy is dangerous or misconceived, whistleblowers must have a defense available.”
David Hooper, a lawyer who acted for a former MI5 officer named Peter Wright when the government attempted to ban his "Spycatcher" memoirs in 1987, argues that the amendments to the act in 1989 produced a “reasonably good” working version, concentrating on certain areas, such as intelligence.
“Before, it was ridiculously wide in that it covered any little bit of information,” says Mr. Hooper, who recalls the joke that the Act even covered how many cups of tea a government minister drank.
“What people don’t like about the Act is that they don’t see [acting in the] public interest as a defense, but in fact there is effectively a public interest defense because if you are saying: ‘Look, I am doing this to expose the fact that civilian prisoners are being tortured in the custody of the British army,' for example. A jury would certainly say that is not damaging the public interest – it is the reverse.”