Baker Hostetler Washington, D.C., partners David Rivkin and Bruce Brown authored an article titled, “Prosecute Assange Without Chilling Press Freedoms,” in the December 15, 2010, issue of USA Today. The authors explain that the U.S. government has the right to pursue Assange under the 1917 Espionage Act, and they discuss how to do this without compromising First Amendment values.
The authors note that Assange is not a journalist because he has failed to examine the documents or to provide analytical narrative in his postings on WikiLeaks, and that he is a person “determined to destabilize.”
“Fortunately, because Assange’s conduct differs so fundamentally from that of any journalist, the Justice Department should be able to prosecute him using clear limiting principals capable of restraining any future misuse of these laws against the news media,” they write.
The authors warn that without limiting principles being prominently featured in an indictment against Assange, the government’s case would fail in seeking a remedy, could overreach and damage democracy and would likely not pass in the courts.
The authors note that in 1975, a CIA case officer published a book baring the identities of hundreds of alleged covert operatives, and that Congress responded and criminalized the conduct in the Intelligence Identities Protection Act. Journalists have not been prosecuted under this law—but journalists recognize there are now reasons to be less secure.
The authors conclude that as the government pursues WikiLeaks, it must lay down defining markers to shield news reporting and affirm that it will not use the espionage laws to chill the exercise of press freedoms.