Try Assange Under the Espionage Act

The outrage over the WikiLeaks release of 90,000 classified operational reports from Afghanistan is slowly congealing into calls for action. Adm. Mike Mullen and Secretary of Defense Robert Gates charged that the leaker and publisher “have on their hands the blood of some young soldier or that of an Afghan family.” Former CIA Director Michael Hayden asserted that “this is the kind of stuff that gets people killed,” while Jane Harman, the subcommittee chair of the House Homeland Security Committee, said leaked classified information is not an “acceptable” contribution to the debate about U.S. policy in Afghanistan. Julian Assange claimed the U.S. Department of Justice considered charging him as “a co-conspirator for espionage.”

We should be so fortunate.

Fred Kaplan at said charging Assange under the Espionage Act (18 USC 793) would be “absurd,” citing the attempted prosecution of American Israel Public Affairs Committee (AIPAC) staffers Steven J. Rosen and Keith Weissman. They gathered and leaked classified information to Israel and the press useful in AIPAC’s drive to force the U.S. to confront Iran. Kaplan claims the 2005 AIPAC indictment [.pdf] was “startling” because “to ‘gather sensitive information and then to deliver it to persons not entitled to receive it’ – this is what news reporters do all the time. More remarkably, Rosen and Weissman were indicted for receiving the information. This is what newspaper, magazine, and Web site readers do all the time. ”

While Kaplan’s reference to the AIPAC espionage case is highly useful, his analysis is deeply flawed. Imagine if Assange were indicted and allowed to call Gates, Hayden, and Harman to testify.

The Assange defense team could ask the former CIA and current Department of Defense (DOD) chiefs about their views of the Freedom of Information Act (FOIA), the only sanctioned process to declassify documents demanded by the public. Assange could then present as “Exhibit A” their recent joint refusal to release documents that long ago should have been declassified.

Since the 1980s, investigative reporters have tried to obtain a trove of still-classified documents about the Iran-Contra affair and DOD/CIA sanctioned drug-running and the sale of taxpayer-funded arms stockpiled in Israel to finance the Nicaraguan Contras in violation of laws passed by Congress. The final report of the independent counsel for Iran-Contra stated that Secretary of Defense Robert Gates “was close to many figures who played significant roles in the Iran/Contra affair and was in a position to have known of their activities,” though he was never indicted.

The DOD and CIA responded contemptuously to a 2009 FOIA request for documents, censoring all of the relevant sections grudgingly released in 2010 [.pdf]. The Assange defense team could ask Robert Gates how much actual Nicaraguan blood was spilled by Gates and the CIA in violation of the Boland Amendments. Gates can then explain how his department can be held accountable if it won’t even release decades-old documents about criminal activity, much less currently relevant information.

Congresswoman Jane Harman should also testify under oath.

Harman thwarted accountability for classified leaks in the 2005 Rosen and Weissman espionage case by promising a still-unknown Israeli agent she would “waddle into” the case and use her influence to get it dismissed. Harman should be asked on the stand the identity of that Israeli agent, and whether it was appropriate to collude with a foreign government in order to subvert a domestic criminal prosecution by using her influence in Congress.

Kaplan’s article asserts that “in the end, the [2005] charges against the AIPAC officials were dropped; the judge, the prosecutors, everyone involved realized that the logic of the law was either too vague or too draconian.”

That’s simply not true.

In their May 2009 motion to dismiss [.pdf], prosecutors cited Judge T.S. Ellis’s “unexpectedly higher evidentiary threshold in order to prevail at trial.” The judge assigned prosecutors the impossible task of proving Rosen and Weissman were in a “state of mind” [.pdf] in which they believed they were actually committing a crime, effectively gutting the Espionage Act. The New York Times noted that Joseph Persichini Jr. – the top official at the FBI’s Washington office – was “disappointed” and FBI agents were “infuriated” the charges were dropped.

Harman should be asked by the Assange defense team whether classified leaks are encouraged if they benefit powerful elites and their interest groups (which in her case, is the Israel lobby) pushing for, benefiting from, and sustaining wars.

This is still a very timely question.

AIPAC, which is still pushing for war with Iran, continually trafficks in classified information, mostly to the detriment of Americans. Back in the mid-1980s, Rosen’s AIPAC research team obtained purloined International Trade Commission documents chock full of classified U.S. industry secrets. That endeavor more resembled economic warfare – against U.S. corporations and interest groups who dared oppose preferential trade subsidies – than journalism. The FBI investigated the incident and found cause for prosecuting first espionage then “theft of government property,” but couldn’t interest the DOJ in a prosecution.

Steven J. Rosen and AIPAC may also soon be passing around more classified information (or derivatives) in an upcoming Oct. 18, 2010, arbitration hearing as lawyers decide whether or not to reward Rosen with $20 million for services rendered. Rosen sued AIPAC, claiming that in firing him, it singled him out for engaging in the common workplace practice of circulating classified information. The judge in the civil case has helpfully granted a protective order [.pdf] so that interested citizens, journalists, watchdogs, and the law enforcement community won’t be privy to their private deliberations.

Assange should ask Harman why she condemns classified information leaks from WikiLeaks while protecting those of AIPAC. She should be asked why it is permissible for AIPAC and Rosen to circulate classified information and derivatives taken from the U.S. government in order to negotiate a financial settlement behind closed doors.

Then Assange should simply walk out of the courtroom, claiming  – like Rosen and Weissman before him – he is always in a pure “state of mind” when he obtains and leaks documents.

Case closed.

This hypothetical courtroom drama reveals that the pursuit of Assange is not really about classified information. It is about revealing facts to Americans that quantifiably undercut the credibility, rationale, and prosecution of the tragic war in Afghanistan. Until the president, the Department of Defense, and the CIA stop abusing the U.S. classification system to cover up illegal, corrupt, or simply ill-advised activities, they should expect tech-savvy activists to continue –  much like the Internet –  routing around their obstacles.