The Legal Case against WikiLeaks

The State Department will likely push for WikiLeaks’ founder Julian Assange to be prosecuted under all available statutes, including the Espionage Act, says CFR’s John Bellinger, who notes the recent releases harmed sources and foreign relations.

December 13, 2010

To help readers better understand the nuances of foreign policy, CFR staff writers and Consulting Editor Bernard Gwertzman conduct in-depth interviews with a wide range of international experts, as well as newsmakers.

The release of more than 250,000 diplomatic cables by has raised questions about what legal course might be pursued against WikiLeaks and its founder, Julian Assange. The State Department will likely push for Assange to be prosecuted under all available statutes--including those in the 1917 Espionage Act--for releasing information "damaging to our foreign relations and also potentially to sources of information to the State Department," says John B. Bellinger III, a former legal adviser to the State Department and the National Security Council. He notes the threat of invoking the Espionage Act was implicit in a letter to Assange and his lawyers sent by State’s legal adviser before the WikiLeaks dump. Bellinger sees the potential harm to sources mentioned in the cable as more problematic than any damage to foreign relations and predicts considerable legal wrangling if the United States tries to extradite Assange from Britain, where he is jailed on Swedish charges of sexual assault.

If you were still working as the legal adviser at the State Department and the attorney general called for a meeting to discuss what the United States should do about WikiLeaks, what would be your advice?

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The first thing the legal adviser would say--and the current adviser, Harold Hongju Koh, has already said this--is that the disclosure of this information is extremely damaging to the United States. Just prior to the release of the initial cables by WikiLeaks, Koh wrote a very strongly worded letter (Reuters) to Julian Assange and his lawyers describing in detail the damage that would be caused if the information was disclosed and asking for Assange to give the information back.

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There was clearly a legal purpose for that very strongly worded letter beyond simply asking for the return of the documents. It was to put Assange on notice that the U.S. government believed the release of the information would cause "harm to the national security." That is an element of offense in the Espionage Act for willful disclosure of information relating to the national defense that the releaser knows would cause damage to the national defense. Having sent that letter, I would anticipate that the State Department is strongly urging that Assange be prosecuted under all available statutes for release of this information that is extremely damaging to our foreign relations and also potentially to sources of information to the State Department.

Assange is in detention in London on a warrant from the Swedish government on sexual charges brought by two women. Does that Swedish warrant have precedence over anything the United States might do? How does that work legally?

What is even more damaging than the damage to our foreign relations is the potential--and highly likely--harm to individual sources named in the cables.

The Swedish warrant doesn’t necessarily have precedence. The U.S. government must be considering that if it brings charges against Assange--and I expect that they will do so, if they have not, in fact, already secured sealed indictments--it should ask for Assange’s extradition from the UK or wait for him to be extradited to Sweden and then request his extradition from Sweden. And they are certainly looking at the technical aspects of the two extradition agreements between the UK and Sweden and then considering the political and legal atmosphere in both places.

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With respect to the UK, we have a new and well-functioning extradition treaty that was negotiated just a few years ago between the United States and the UK, and a very good extradition relationship government to government. In general, I might expect that the U.S. government would try to have him extradited from the UK rather than from Sweden, and the UK does have some discretion to extradite him to the United States rather than to Sweden. On the other hand, certainly Assange’s lawyers would mount a very vigorous opposition in either case, in London in particular. Past U.S. extradition requests for criminals from the UK have faced vigorous opposition, and a number of people have successfully resisted that through appeals through the House of Lords and ultimately all the way up to the European Court of Human Rights. We can anticipate lengthy litigation.

So far, what’s been available in the public domain, while embarrassing, doesn’t seem to be revealing deep secrets. Yet the Espionage Act is reminiscent of things like giving away atomic secrets to the Soviet Union in the 1940s. What could the Espionage Act address?

I suspect the Justice Department is considering possible charges under the Espionage Act and under the Government Property Act. Under the Espionage Act, part of the statute makes it a crime for an individual with unauthorized possession of information relating to the national defense to communicate that information to others or to retain it and refuse to give it back to the United States if the individual knows that it could cause damage to the United States. And the information relating to national defense does not have a threshold. State Department cables that would cause damage to our foreign relations would fall into that category.

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The difference from maybe past cases is that given the sheer volume of these 250,000 cables, there are plenty of cables in there that have caused serious damage to our relations with foreign countries in the Middle East, in Asia, and elsewhere--that goes far beyond statements that are just embarrassing. Their release will cause strains in relationships with other countries. Beyond that, though, what is even more damaging than the damage to our foreign relations that Secretary of State Hillary Clinton is working very hard to tamp down in numerous conversations throughout the world, is the potential--and highly likely--harm to individual sources named in the cables.

One of the things that’s changed in the nature of diplomacy over the last ten years, and increasingly so, is that our foreign service focuses less and less on official conversations with high- or middle-ranking government officials and increasingly on getting important information from human rights activists, from dissidents, or even from dissidents inside a government that might disagree with government policy. This is not really intelligence collection, it’s information that’s important to our foreign relations so we can understand what’s going on in other countries. But many of these cables report what Chinese dissidents or dissidents in regimes in the Middle East are saying about their governments, and it contains their names in the cables. Generally the cable will then add a parenthetical that’s added by the author, that will say "please protect," which means do not pass the information around. Now that this is all out, and more will be coming out, authoritarian regimes like China and countries in the Middle East that don’t have a respect for humans rights can reasonably be expected to round up some of these individuals and make their lives very difficult.

It would seem to be utterly unnecessary for so many cables on diplomatic information unrelated to terrorism or military operations to have been shared with this individual, and I’m sure the government must be investigating that.

Can we compare this issue with the 1971 release of the Pentagon Papers, which detailed U.S. involvements in the Vietnam War, by a Defense Department employee? Was that a more serious episode than the WikiLeaks disclosures?

The Assange incident is much more serious, in the following ways. One, it includes extremely sensitive cables about foreign leaders or statements made by foreign leaders in more than a hundred countries around the world--not only political but also economic and trade information--that is far beyond just the limited amount of information in the Pentagon Papers about a single war or a smaller set of players. And second, the cables include information from individual sources who are at risk. That’s one reason why many of the main human rights groups who might otherwise be big supporters of transparency in government are gravely concerned about the release of this information. They use some of the same sources themselves, and they had written to Assange pleading that this information not be put out.

In Europe, there were various press reports criticizing the United States government for overreacting to the release of these documents, although publicly the White House hasn’t said all that much, has it?

The administration is in a difficult position in that on the one hand it does not want to overplay this and contribute to the press stir that already exists, but on the other hand, it wants to emphasize the damage to deter others from doing this again. Secretary Clinton has to address the concerns around the world. I’ve seen stories citing some in Europe as thinking the United States is overreacting. I think that’s not what you hear from most government officials in most of these countries. Sure, there may be a few parliamentarians or pro-transparency activists who think that, once again, the United States is overreacting and acting like a bull in a china shop, but if you talk to government officials or diplomats all across Europe, you will find that they are irritated about the amount of information that the United States is putting in their cables. They also realize that this sets a terrible precedent for their own diplomatic cables--that this could happen to anybody.

It’s not the U.S. government’s fault that it puts sensitive information into cables. And the U.S. government certainly didn’t intend for the information to come out. Certainly, French diplomats or German diplomats or British diplomats are thinking, "There but for the grace of God go we." They have to stand up for the secrecy of diplomatic communications because if there’s any suggestion [that] Prime Minister Vladimir Putin and others [think] that somehow this contributes to transparency, then soon nobody’s diplomatic cables will be sacrosanct.

This all apparently came out through the workings of a twenty-three-year-old Army private, Bradley Manning, who had access to this secret material. Why should a military analyst have access to so many diplomatic cables having nothing to do with national security?

I must say I’m surprised that some private had access to all of these cables. After 9/11 and the huge criticism of the government by the 9/11 Commission and others that the government failed to connected dots from the FBI and CIA, a huge push was made to make sure all relevant counterterrorism information was shared with all other relevant people. But I don’t see why 250,000 diplomatic cables reporting on the views of senior foreign leaders or human rights activists or dissidents--and information that has nothing to do with terrorism--should have been pushed out to some private in the military. I don’t know whether the fault lies with the State Department for allowing that to happen, or whether it was shared with the military not knowing that the military--which does tend to share information very broadly across its branches and services and commands--disseminated it farther and deeper than anybody at the State Department was aware. It would seem to be utterly unnecessary for so many cables on diplomatic information unrelated to terrorism or military operations to have been shared with this individual, and I’m sure the government must be investigating that.


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