The American Civil Liberties Union writes that prosecuting WikiLeaks could raise serious Constitutional concerns. Whistleblowers, it says, are necessary to reveal information the government wrongly classifies.
The Wikileaks phenomenon — the existence of an organization devoted to obtaining and publicly releasing large troves of information the U.S. government would prefer to keep secret — illustrates just how broken our secrecy classification system is. While the Obama administration has made some modest improvements to the rules governing classification of government information, both it and the Bush administration have overclassified and kept secret information that should be subject to public scrutiny and debate. As a result, the American public has had to depend on leaks to the news media and whistleblowers to know what the government is up to.
We're deeply skeptical that prosecuting WikiLeaks would be constitutional, or a good idea. The courts have made clear that the First Amendment protects independent third parties who publish classified information. Prosecuting WikiLeaks would be no different from prosecuting the media outlets that also published classified documents. If newspapers could be held criminally liable for publishing leaked information about government practices, we might never have found out about the CIA's secret prisons or the government spying on innocent Americans. Prosecuting publishers of classified information threatens investigative journalism that is necessary to an informed public debate about government conduct, and that is an unthinkable outcome.