Leaks

WikiLeaks began publishing secret U.S. government material in December 2007. The first document was the standard operating procedures for Camp Delta from the prison operated by the U.S. Navy at Guantanamo Bay, Cuba. The manual permitted prisoners to be denied access to the Red Cross for up to four weeks and described how toilet paper could be used as a reward for good behavior. This was followed by publication of emails from then-vice-presidential candidate Sarah Palin’s private email account indicating that Palin was using her private account for official business, supposedly to circumvent Freedom of Information Act requests.

In mid-February 2010, WikiLeaks received a leaked diplomatic cable from the U.S. embassy in Reykjavik relating to the Icesave scandal, which WikiLeaks published on February 18. The cable, known as Reykjavik 13, was the first of the classified documents WikiLeaks published among those allegedly provided to them by U.S. Army private Chelsea Manning (then known as Bradley Manning).

Some of WikiLeaks’ early releases included documentation of equipment expenditures and holdings in the Afghanistan war and a report about a corruption investigation in Kenya. In March 2010, WikiLeaks released a secret 32-page U.S. Department of Defense counterintelligence analysis report written in March 2008 discussing the leaking of material by WikiLeaks and how it could be deterred.

In April 2010, WikiLeaks published gunsight footage from the July 12, 2007, Baghdad airstrike in which Iraqi journalists were among those killed by an AH-64 Apache helicopter. In July 2010, WikiLeaks released Afghan War Diary, a compilation of more than 76,900 documents about the war in Afghanistan not previously available to the public.

In October 2010, Wikileaks released nearly 400,000 documents referred to as the Iraq War Logs in coordination with major commercial media organizations. This leak allowed the mapping of 109,032 deaths in “significant” attacks by insurgents in Iraq that had been reported to multinational forces in Iraq, including about 15,000 that had not been previously published.

In April 2011, WikiLeaks began publishing 779 secret files on prisoners detained in the Guantanamo Bay detention camp.

In July 2010, WikiLeaks released 92,000 documents related to the war in Afghanistan between 2004 and the end of 2009 to the Guardian, the New York Times, and Der Spiegel. The documents detail individual incidents including friendly fire and civilian casualties. After the leak of information on the Afghan war, in October2010, around 400,000 documents relating to the Iraq war were released. The U.S. Defense Department referred to this incident as the largest leak of classified documents in its history. Media coverage of the leaked documents emphasized claims that the U.S. government had ignored reports of torture by the Iraqi authorities after the2003 war.

On November 28, 2010, WikiLeaks and five major newspapers from Spain (El País), France (Le Monde), Germany (Der Spiegel), the United Kingdom (the Guardian), and the United States (the New York Times) started simultaneously publishing the first 220 of 251,287 leaked documents labeled confidential (but not top secret) and dated from December 28, 1966, to February 28, 2010.

In November 2010, WikiLeaks collaborated with several major global media organizations to release U.S. State Department diplomatic cables in redacted format. On September 1, 2011, it became public that an encrypted version of WikiLeaks’ large archive of unredacted U.S. State Department cables. The incident resulted in widely expressed fears that the information released could endanger innocent lives. The contents of the diplomatic cables include numerous unguarded comments and revelations regarding: critiques and praises about the host countries of various U.S. embassies, political maneuvering regarding climate change, discussion and resolutions toward ending ongoing tension in the Middle East, efforts and resistance toward nuclear disarmament, actions in the war on terror, assessments of other threats around the world, dealings between various countries, U.S. intelligence and counterintelligence efforts, and other diplomatic actions.

Reactions

Reactions to the U.S. diplomatic cables leak varied. After the WikiLeak site became the target of a denial-of-service attack on its old servers, WikiLeaks moved its website to Amazon.com’s servers. Later, however, the website was evicted from the Amazon servers. Amazon claimed that WikiLeaks was not following its terms of service and that Wikileaks was engaged in several violations. For example, Amazon’s terms of service state that “you [the user] represent and warrant that you own or otherwise control all of the rights to the content . . . that use of the content you supply does not violate this policy and will not cause injury to any person or entity.” In Amazon’s view, WikiLeaks neither owned nor controlled the rights to the classified content it held.

WikiLeaks has contended that it has never released a misattributed document and that documents are assessed before release. In response to concerns that the group may publish misleading or fraudulent leaks, WikiLeaks claimed that misleading leaks are already published in the established media. Assange said in 2010 that submitted documents are vetted by five expert reviewers, who also investigate the background of the leaker if his or her identity is known. The editor-in-chief has the final decision in assessing a document.

Several U.S. government officials have criticized WikiLeaks for exposing classified information and claimed that the leaks harm national security and compromise international diplomacy. In March 2008, the U.S. Army counterintelligence center issued a special report on the threat posed to the U.S. Army by WikiLeaks. The document identified WikiLeaks’ reliance on trust as the website’s major weakness. WikiLeaks relies on insiders and whistleblowers to trust that they will maintain their anonymity.

The report concluded that identifying leakers and exposing them to employment termination or legal action could shake the trust on which WikiLeaks relies. As a result, others would be deterred from leaking documents to WikiLeaks. Although this report existed in 2008, no overt action was taken against WikiLeaks until the publication of the embassy cables.

The reaction to WikiLeaks’ publication of the cables was quick and furious. Hillary Clinton, then-U.S. Secretary of State said, “This disclosure is not just an attack on America—it’s an attack on the international community.” Sarah Palin responded by stating that Assange had “blood on his hands” and asked the rhetorical question, “Why was he not pursued with the same urgency we pursue al Qaeda and Taliban leaders?” Defense secretary Gates, in a more nuanced manner, said, “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”

The U.S. Justice Department launched a criminal investigation of WikiLeaks and Assange soon after the leak of the diplomatic cables. The department had considered bringing charges under the Espionage Act of 1917, 40 Stat. 217 (1917), because of First Amendment protections for the press. Several Supreme Court cases, including Bartnicki v. Vopper, 532 U.S. 514 (2001), have established that the U.S. constitution protects the republication of illegally gained information as long as the publishers did not violate any laws in acquiring this material. Federal prosecutors have also considered prosecuting Assange for trafficking in stolen government property. Because the diplomatic cables are intellectual rather than physical property, however, this may be a difficult strategy. Any prosecution of Assange would require extraditing him to the United States, a procedure made more complicated and potentially delayed by any preceding extradition to Sweden.

One of Assange’s lawyers said they fought extradition to Sweden because it might result in Assange’s extradition to the United States. Several human rights organizations requested with respect to earlier document releases that WikiLeaks adequately redact the names of civilians working with international forces in order to prevent repercussions. Some journalists have also criticized a perceived lack of editorial discretion when releasing thousands of documents at once and without sufficient analysis.

WikiLeaks’ credibility as a source of apolitical information has come under increased scrutiny following the 2016 American presidential election cycle. In March of 2016, WikiLeaks released a trove of emails collected from the private Gmail account of former White House chief-of-staff and then-Clinton campaign advisor John Podesta. The FBI alleges that WikiLeaks obtained these emails from the Russian government. In September of 2016, WikiLeaks sent a direct message to Donald Trump Jr. via its Twitter account advising him to investigate a political action committee (PAC) website opposed to then-Republican nominee(and father of Trump Jr.) Donald J. Trump.

In January of 2019, the New York Times reported that former Trump campaign official Roger Stone was arrested in connection the investigation of Special Counsel Robert Muller into connections between the Trump campaign (and possibly President Trump) and the Russian government. Additionally, throughout the 2016 election, then-candidate Trump made repeated appeals to both WikiLeaks and the Russian government to release more Clinton campaign-related material.

WikiLeaks has also come under increased scrutiny in the United Kingdom due to connections between Nigel Farage, former head of the UK Independence Party (UKIP), Assange, and Russia. Farage was photographed visiting Assange at the Ecuadorian Embassy in London, where he (Assange) is currently maintaining political asylum; and the relationship between the two men dates to at least 2011.When questioned about his relationship with Assange in an interview with the German paper Die Zeit, Farage reportedly walked out of the interview.

According to El Pais, Assange also met with several “key ideologues” within the Catalan independence movement, after which WikiLeaks began tweeting in support of Catalan separatism. According to some reports, at Spain’s behest, Ecuador limited Assange’s internet access after this. Many note, however, that Assange (and thus WikiLeaks) likely does not support an independent Catalonia as much as a shakeup of the European nation-state order.

Prosecutions

Criminal prosecution against WikiLeaks has not been successful because WikiLeaks is not a criminal enterprise in the same way that terrorist websites are, and private actors do not support the campaign against WikiLeaks in the way they supported the attacks on terrorist websites. U.S. Army Private Chelsea (then Bradley) Manning was accused of passing the “collateral murder” video and other documents to WikiLeaks.

On May 29, 2010, Manning was charged under the Uniform Code of Military Justice (UCMJ), articles 92 and 134, for transferring a classified video to his personal computer, exceeding authorized access on a Secret Internet Protocol Router Network (SIPRnet) computer, and transmitting protected information to someone not entitled to receive it. The UCMJ applies only to current or past members of the military, military cadets, reserve forces, prisoners of war, and people accompanying the armed forces in the field.

In December 2010, a federal grand jury was empanelled in Virginia to investigate whether Assange could be charged under the Espionage Act or the Computer Fraud and Abuse Act (CFAA), 100 Stat. 1213 (1986). The Espionage Act criminalizes several acts related to disclosure of classified material. Since the release of the embassy cables, most calls for prosecution of Assange have focused on the possibility that he could be indicted under the Espionage Act. Specifically, 18 U.S.C. § 793(a) (2011) prohibits knowingly and willfully communicating or making available classified information to an unauthorized person, or publishing such information in any manner prejudicial interests of the United States where the classified information concerns intelligence activities of the U.S. or foreign governments. Further, 18 U.S.C. § 793(b) (2011) outlaws copying any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with national defense. Subsection (c) proscribes receiving, obtaining, or agreeing to receive or obtain any of the materials from subsection (b) if the receiver knows or has reason to believe the materials were obtained in violation of the act. Subsection (g) makes it a crime to conspire to do something that violates the act. Any violation of these sections is punishable by a maximum of ten years in prison.

Assange almost certainly violated the plain meaning of the Espionage Act. Under subsection (a), Assange published classified information that concerned military intelligence by posting the so-called collateral murder video on WikiLeaks. The very title of the video also demonstrates that the video was prejudicial to U.S. interests because it accuses the U.S. military of killing civilians. Assange received documents and writings that he certainly had reason to believe were classified by the U.S. government.

As such he broke subsection (c) of the act. It could be argued that he also conspired to violate subsection (b) by offering to publish any materials he was given. Through a conspiracy charge, Assange would fall afoul of subsection (g) of the act as well. Although a prima facie case against Assange for violating the Espionage Act is strong, the government faced serious practical problems securing a conviction of Assange using this theory.

In New York Times Co. v. United States, 403 U.S. 713 (1971), the U.S. government tried to prosecute the New York Times for publishing the Pentagon Papers. The Supreme Court ruled that prior restraint of publication was not valid under the First Amendment. The Court suggested, however, that the government could pursue the newspaper for violations of the Espionage Act without violating freedom of speech. Thus, Assange would probably not be able to make a First Amendment defense against an Espionage Act charge; however, the government must still overcome serious practical and political obstacles to prosecute Assange for violating the Espionage Act. The primary problem arises because WikiLeaks published the embassy cables along with several newspapers.

If WikiLeaks violated the Espionage Act, then every media organization that published material provided by Manning to WikiLeaks also violated the act. Because Assange organized the group of prominent newspapers to publish the embassy cables simultaneously with WikiLeaks, he has set up a public relations trap for the government. The government has taken no steps toward prosecuting the New York Times for publishing the embassy cables and seems unlikely to do so.

In another recent Espionage Act prosecution, federal prosecutors did not charge the journalist who received classified information from a source. In that case, James Risen, a New York Times writer, was given information about a Central Intelligence Agency (CIA) operation against Iran’s nuclear program. When Risen included the information in a 2006 book, State of War, the source was prosecuted under the Espionage Act. Although Risen was subpoenaed during the investigation of his source, he has not been charged in connection with the leak. Thus, if Assange is prosecuted for the leaks, he will be able to point out this disparate treatment and claim he is being persecuted. This is not a strong legal defense, but it will make it very hard politically to charge Assange.

Prosecution of WikiLeaks under the Espionage Act would also leave the government vulnerable to a claim that it was the latest in a long line of administrations that had abused the act to suppress political opposition. Parts of the Espionage Act have been used to imprison the leader of the Socialist Party of America, to seize a film that portrayed British soldiers in a negative light, and to convict a leaflet distributor. Even if the government can convict Assange of violating the act, it is quite possible that it would rather not add imprisoning an award-winning journalist to the above list.

The CFAA outlaws a number of activities related to computer hacking. Of particular interest for a potential prosecution of WikiLeaks is 18 U.S.C. § 1030(a)(1) (2006). Specifically, this subsection forbids obtaining from a computer without authorization or in excess of authorization information that has been determined by the U.S. government to require protection against unauthorized disclosure and then willfully communicating, delivering, or transmitting that information to any person who is not entitled to receive the information; in fact, 18 U.S.C. § 371 (2011) outlaws conspiring to commit any crime against the United States. This includes conspiring to violate the CFAA. Conspiracy is punishable by up to five years in prison.

Assange did not violate the CFAA as a principle. Although Assange willfully disclosed the information he received from Manning to persons not entitled to receive the information, Assange did not access any computer without authorization or in excess of authorization to obtain the information. However, Assange may have conspired to violate the CFAA with Manning. To show that Assange conspired to violate Section 1030(a)(1), the government must prove that Assange and Manning agreed to the leak of the information before Manning accessed the computer illegally. There is no publicly available information indicating that Assange and Manning had any contact prior to Manning’s access of the computers. Unless there is evidence of this that has not been released, it seems unlikely that the government can secure a CFAA conviction against Assange.

It has been suggested, however, that Assange may be vulnerable to a conspiracy charge because he actively encouraged the leaking of classified information. Conspiracy liability usually extends only to agreements to commit a specific crime and other crimes that are reasonably foreseeable consequences of the original crime. As such, a prosecution of Assange premised on the theory that he generally agreed to receive classified information is unlikely to succeed. On the other hand, questions have been raised about whether he was perhaps more actively involved in the 2016 U.S. election leaks; and we won’t know the answer to this until the various federal investigations wind up and any and all charges are made public.

Further Reading

See also: Assange, Julian; Bartnicki v. Vopper; Espionage Act; First Amendment to the U.S. Constitution; Journalism and the protection of sources; Manning, Chelsea Elizabeth; News leaks; Snowden, Edward; Whistleblowers