Will WikiLeaks Nudge US toward Tougher Laws to Guard Secrets?

By Quinn, Ben | The Christian Science Monitor, October 26, 2010 | Go to article overview
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Will WikiLeaks Nudge US toward Tougher Laws to Guard Secrets?

Quinn, Ben, The Christian Science Monitor

Britain has one of the most far-reaching laws against the release of state secrets. With the official US outcry over the latest WikiLeaks document dump, will Congress borrow from the Brits?

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.

IN PICTURES: Wikileaks and the war in Iraq

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.

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