WikiLeaks & Julian Assange

1. WikiLeaks & Julian Assange • Posts unedited/raw docs received from anonymous sources regarding various actions of corrupt/autocratic regimes • In 2010/2011, it posted mostly unedited documents received from Bradley Manning (military intelligence analyst) that contained documents from military and diplomatic databases • Collateral Murder video, docs re Afghan/Iraq wars, internal State Department memos • Some docs classified (SECRET), some docs not • Assange worked with newspapers BUT posted raw documents (with redactions of identities) at the same time they published articles about material • Even if the gov’t met the standards for an injunction in the Pentagon Papers, would such an injunction work?

2. Espionage Act & Criminal Punishment of Third Party Disclosures – a review • Section 793(e) imposes criminal penalties on anyone who has “unauthorized possession of . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” and who “willfully communicates, delivers, [or] transmits . . . the same to any person not entitled to receive it.” • When the disclosing party is a third party who has received the information from a leaker, what standard should we use to impose criminal sanctions on the third-party: • Landmark Communications: “The substantive evil must be extremely serious and the degree of imminence extremely high before [disclosure] can be punished…The danger must not be remote or even probable; it must immediately imperil." • US v. Rosen: 1A allows punishment of “intentional disclosures of “closely held” information that D knows are“‘potentially damaging to the US or . . . useful to an enemy of the United States.”

3. WikiLeaks and criminal penalties • Should Assange and WikiLeaks be treated differently from a traditional news source? • Why do gov’t officials call him a “high tech terrorist”? • Is there something different about how WikiLeaks operates that justifies different treatment? • Are there implications for others if we treat WikiLeaks differently? • Does the Rosen test have possible negative implications for people like Assange and WikiLeaks as opposed to traditional news sources?

4. Prosecution of the Leaker • If going after the third party publisher is not an ideal way to shut off communication of confidential information. Government can go after the leaker: • S/he had access to the information due to a security clearance (although not necessarily legitimate). But likely signed a contract agreeing not disclose. Plus disclosure also falls under Section 793. • Should the government’s burden under Section 793(e) be easier here? • Does it make sense to have whistleblower protections (which we do in federal law) but then ferociously prosecute “leakers” under criminal law.

5. Bradley Manning charges • Manning admitted to leaking materials to WikiLeaks. Claims to have done it “to spark a debate about foreign policy” and to expose America’s “bloodlust and disregard for human life.” • He has been charged with (among other things): • Aiding the enemy (without proper authority, knowingly give intelligence to the enemy, through indirect means.” ) – violates UCMJ • Violating Espionage Act '793(e) • Violating 18 USC '1030A – Computer Fraud & Abuse Act – similar to the language of the Espionage Act • Judge presiding at Court martial ruled that gov’t must show • Manning had "reason to believe such information could be used to the injury of the US" by an armed group like al-Qaeda or another nation. • "The government must prove beyond a reasonable doubt that the intelligence is given to and received by the enemy” • Gov’t allowed to meet this burden (possibly) by showing possession

6. Miscellany • Second Drafts of Critiques due tomorrow by 5:00 p.m. • Final Exam: • 1:30 Friday, May 17 • 1 hour, closed book multiple choice • Sample questions posted online